Richard A. Becker v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD A. BECKER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1102
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3443-16-0064-I-1.
______________________
Decided: June 13, 2024
______________________
RICHARD A. BECKER , Coram, NY, pro se.
D EANNA SCHABACKER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before D YK, REYNA, and STARK, Circuit Judges.
P ER CURIAM .
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BECKER v. MSPB 2
Richard Becker appeals a final decision of the Merit
Systems Protection Board (“Board”) dismissing Mr.
Becker’s claims for lack of jurisdiction. We conclude that
Mr. Becker has not pled a mixed case (i.e., a case including
a claim of discrimination), and we therefore have jurisdic-
tion over his appeal. However, because we agree that the
Board lacked jurisdiction, we affirm.
BACKGROUND
Mr. Becker was an employee with the Army & Air
Force Exchange Service (“AAFES”) from May 21, 1962, un-
til April 24, 1966, when he resigned. AAFES is a Nonap-
propriated Fund Instrumentality (“NAFI”). According to
Mr. Becker, he has applied for AAFES positions and for re-
instatement at AAFES every year since 1968, but his ap-
plications were unsuccessful. Mr. Becker claims that
AAFES, in rejecting his applications, was making an im-
proper suitability determination based on his marital sta-
tus (marriage to a Japanese woman). He also alleges
AAFES violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) and the
Veterans Employment Opportunities Act of 1998 (“VEOA”)
in denying reinstatement.
In an initial decision, the administrative judge of the
Board dismissed Mr. Becker’s claims for lack of jurisdic-
tion. Mr. Becker appealed and, in a final decision, the
Board affirmed the administrative judge’s dismissal for
lack of jurisdiction. Mr. Becker petitions for review.
We have jurisdiction pursuant to 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9) if Mr. Becker’s
case is not a mixed case.
D ISCUSSION
I
“When an employee complains of a personnel action se-
rious enough to appeal to the [Board] and alleges that the
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BECKER v. MSPB 3
action was based on discrimination, she is said (by perti-
nent regulation) to have brought a ‘mixed case.’” Kloeckner
v. Solis, 568 U.S. 41, 44 (2012); see also Perry v. Merit Sys.
Prot. Bd., 582 U.S. 420, 424 (2017) (quoting Kloeckner). “A
mixed case is one in which a federal employee (1) complains
of having suffered a serious adverse personnel action ap-
pealable to the [Board] and (2) attributes the adverse ac-
tion, in whole or in part, to bias prohibited by federal
antidiscrimination laws.” Harris v. Sec. & Exch. Comm’n,
972 F.3d 1307, 1317 (Fed. Cir. 2020); see 5 U.S.C.
§ 7702(a)(1). While “the Board has jurisdiction to hear ap-
peals of mixed cases, [the Federal Circuit] do[es] not.” Har-
ris, 972 F.3d at 1318. For mixed cases, jurisdiction to
review the Board lies in the district court, including “when
the [Board] types its dismissal of a mixed case as ‘jurisdic-
tional,’” unless the jurisdictional allegation is frivolous.
Perry, 582 U.S. at 423. We hold that Mr. Becker has not
presented a mixed case.
Mr. Becker alleges that he was not selected for a posi-
tion at AAFES because he was found not suitable due to
discrimination based on his marriage to a Japanese
woman. The Board clearly lacked jurisdiction over Mr.
Becker’s negative suitability determination because Mr.
Becker merely challenges his non-selection. “OPM regula-
tions make clear that not every ‘suitability determination’
gives rise to an appealable ‘suitability action.’” Ricci v.
Merit Sys. Prot. Bd., 953 F.3d 753, 757 (Fed. Cir. 2020).
The regulations provide that “[a] non-selection . . . is not a
suitability action.” 5 C.F.R. § 731.203(b); see also Ricci, 953
F.3d at 757. The fact that Mr. Becker is alleging discrimi-
nation does not change the fact that he is challenging the
suitability determination. Because Mr. Becker alleges ju-
risdiction based on his negative suitability determination,
and this jurisdictional allegation is frivolous, he does not
present a mixed case.
Mr. Becker’s USERRA reinstatement claim likewise
cannot be based on bias prohibited by federal
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BECKER v. MSPB 4
antidiscrimination laws. “USERRA only addresses
whether an applicant was discriminated against because of
military service; it is not a general anti-discrimination stat-
ute.” Jolley v. Dep’t of Hous. & Urb. Dev., 299 F. App’x 969,
972 (Fed. Cir. 2008) (nonprecedential); see also Durr v.
Merit Sys. Prot. Bd., 844 F. App’x 329, 331 n.2 (Fed. Cir.
2021) (nonprecedential) (“We agree with the [g]overn-
ment’s explanation that although [petitioner] made allega-
tions of disability discrimination before the [Board] . . . as
a jurisdictional matter these allegations cannot be consid-
ered in the context of a USERRA complaint, which is lim-
ited to adjudication of discrimination claims based on
military status. A USERRA case cannot be a ‘mixed
case’ . . . .” (internal citations omitted)); see also Young v.
Merit Sys. Prot. Bd., 961 F.3d 1323, 1327 (Fed. Cir. 2020)
(holding that in the Whistleblower Protection Act context
“[d]iscrimination claims may not be raised”).
Similarly, VEOA claims are limited to violations of
statutes or regulations concerning veterans’ preference for
employment. “[B]ecause the provisions of VEOA . . . au-
thorize the Board only to determine whether an agency has
violated a statutory or regulatory provision relating to vet-
eran preference, the Board may not employ VEOA to attain
jurisdiction over [petitioner’s] discrimination claim.” Light
v. Small Bus. Admin., 208 F. App’x 819, 821 (Fed. Cir.
2006) (nonprecedential).
Thus, Mr. Becker’s suitability, USERRA, and VEOA
claims are not mixed cases, and we have jurisdiction.
II
“The scope of our review of [B]oard decisions is limited
to whether they are (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” Forest v. Merit Sys. Prot. Bd., 47
F.3d 409, 410 (Fed. Cir. 1995); 5 U.S.C. § 7703(c). We
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BECKER v. MSPB 5
review the Board’s finding that it lacked jurisdiction de
novo. Forest, 47 F.3d at 410. We conclude that the Board
lacked jurisdiction.1 We have already determined that the
Board lacked jurisdiction over the suitability claims. The
same is true of his other claims.
A. USERRA Claim
USERRA, codified at 38 U.S.C. §§ 4301–4335, affords
various protections to current and former military service
members with respect to their employment. Sec-
tions 4312–4318 of Title 38 cover an agency’s failure to
meet reemployment obligations following an absence from
civilian employment to perform uniformed service. The
statute provides that “any person whose absence from a po-
sition of employment is necessitated by reason of service in
the uniformed services shall be entitled to the reemploy-
ment rights and benefits and other employment benefits of
this chapter” if the statutory requirements are met. 38
U.S.C. § 4312(a).
Mr. Becker’s 1966 resignation from AAFES was not
“necessitated by reason of service in the uniformed ser-
vices.” In his resignation letter, Mr. Becker explained he
left AAFES due to dissatisfaction with his job. Mr. Becker
admits that he did not join the U.S. Army until 1972, six
years after his resignation from AAFES. We therefore
agree with the Board’s finding that it lacked jurisdiction
over Mr. Becker’s claim that his resignation can somehow
be related to his military service.
1 The government argues that the Board lacks juris-
diction over Mr. Becker’s claims because NAFI employees
“have no right to appeal adverse personnel actions to the
Board.” Respondent’s Informal Br. at 27; see generally
AINS, Inc. v. United States, 365 F.3d 1333 (Fed. Cir. 2004).
We need not reach this issue because we dispose of Mr.
Becker’s claims on other grounds.
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BECKER v. MSPB 6
Mr. Becker asserts that he was improperly denied
reemployment after his military service. Section 4311 of
Title 38 also prohibits discrimination on the basis of mili-
tary service. “An employee who makes a discrimination
claim under USERRA bears the initial burden of showing
by a preponderance of the evidence that his military service
was a substantial or motivating factor in the adverse em-
ployment action.” Erickson v. U.S. Postal Serv., 571 F.3d
1364, 1368 (Fed. Cir. 2009). There is no dispute here that
Mr. Becker performed military service and was honorably
discharged. The administrative judge found that Mr.
Becker “failed, however, to make any non-frivolous allega-
tion of fact which, if proven, could show that his military
status was a motivating or substantial factor in [AAFES’s]
decision not to select him for any position.” S.A. 19. We
agree.
B. VEOA Claim
To establish Board jurisdiction for a VEOA claim,
[A]n appellant must (1) show that he exhausted his
remedies with the [Department of Labor (‘DOL’)]
and (2) make nonfrivolous allegations that (i) he is
preference eligible within the meaning of the
VEOA, (ii) the action(s) at issue took place on or
after the October 30, 1998 enactment date of the
VEOA, and (iii) the agency violated his rights un-
der a statute or regulation relating to veteran’s
preference.
Lazaro v. Dep’t of Veterans Affs., 666 F.3d 1316, 1319 (Fed.
Cir. 2012) (first alteration in original); see also 5 U.S.C.
§ 3330a.
Mr. Becker has not shown that he exhausted his reme-
dies with the DOL. Under 5 U.S.C. § 3330a(d)(1), “[i]f the
Secretary of Labor is unable to resolve a complaint . . .
within 60 days after the date on which it is filed, the com-
plainant may elect to appeal the alleged violation to the
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BECKER v. MSPB 7
[Board].” Such an appeal to the Board “may not be brought
unless . . . the complainant first provides written notifica-
tion to the Secretary of such complainant’s intention to
bring such appeal.” Id. § 3330a(d)(2)(A). Additionally, ev-
idence of said written notification to the Secretary must be
included with the notice of appeal to the Board. Id.
§ 3330a(d)(2)(B).
Mr. Becker contended that he “filed as instructed a
complaint with the US DOL Vets Training Office.” S.A. 67.
However, Mr. Becker has not shown that he provided writ-
ten notification to the Secretary of his intention to appeal
to the Board. Therefore, Mr. Becker has not exhausted his
remedies with the DOL. The Board correctly found that it
lacked jurisdiction over Mr. Becker’s VEOA claim.
AFFIRMED
COSTS
No costs.
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