Rigoberto M. Vindiola v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RIGOBERTO M. VINDIOLA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1238
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-19-0537-I-1.
______________________
Decided: September 3, 2025
______________________
RIGOBERTO M. VINDIOLA, San Diego, CA, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before L OURIE, T ARANTO, and CUNNINGHAM , Circuit
Judges.
Case: 25-1238 Document: 25 Page: 1 Filed: 09/03/2025

-- 1 of 6 --

VINDIOLA v. MSPB 2
P ER CURIAM .
Rigoberto M. Vindiola petitions for review of the final
order of the Merit Systems Protection Board (“the Board”)
denying his petition for review and affirming the dismissal
of his claim under the Uniformed Services Employment
and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301–
35 (“USERRA”) for lack of jurisdiction. Vindiola v. Dep’t of
State, No. SF-4324-19-0537-I-1, 2024 WL 4579503
(M.S.P.B. Oct. 24, 2024) (“Final Order”); see also Vindiola
v. Dep’t of State, No. SF-4324-19-0537-I-1, 2019 WL
3889346 (M.S.P.B. Aug 13, 2019) (“Initial Decision”), R.A.
13–31.1 For the following reasons, we affirm.
BACKGROUND
Vindiola is a preference-eligible veteran. He served on
active duty with the United States Army in Vietnam from
September 26, 1967, to April 30, 1969, when he was honor-
ably discharged. Initial Decision, R.A. 14. He is entitled to
and receives compensation for a service-connected disabil-
ity from the Department of Veterans Affairs. Id.
At all relevant times, Vindiola was employed, under a
temporary appointment, by the Department of State (“the
agency”) as a Visa Specialist in Mexico. Initial Decision,
R.A. 14. On March 28, 2003, the agency informed Vindiola
that it was considering terminating his candidacy for a per-
manent position as a Visa Specialist on suitability grounds.
Id.; R.A. 99. That preliminary determination was based on
the agency’s suspicion that Vindiola had sold green cards
and visas, as well as on allegations that Vindiola made
“slanderous statements about other employees,” made
“statements about his alleged battlefield service in Vi-
etnam that were disruptive to the work[]place because of
the alleged criminal nature of his actions,” and “asked
1 “R.A.” refers to the appendix filed with Respond-
ent’s brief.
Case: 25-1238 Document: 25 Page: 2 Filed: 09/03/2025

-- 2 of 6 --

VINDIOLA v. MSPB 3
another employee to obtain cocaine [and] marijuana for
him.” R.A. 100. The letter also indicated that Vindiola had
“committed at least 3 administrative visa violations by is-
suing to individuals that were not eligible.” Id. In April
2003, Vindiola resigned from his position. Initial Decision,
R.A. 14; see also R.A. 38, 44, 55. And on May 30, 2003, after
receiving Vindiola’s response to the March letter, the
agency informed him that it was terminating his candidacy
for the Visa Specialist position on suitability grounds. See
R.A. 101.
In January 2019, Vindiola filed a complaint at the De-
partment of Labor, generally alleging that he had been un-
justly terminated on suitability grounds based on
accusations that he had committed war crimes in Vietnam,
in violation of USERRA.2 See R.A. 102–04. On May 24,
2019, the Department of Labor informed Vindiola that it
had investigated his claim and found no USERRA viola-
tion. R.A. 71. Vindiola appealed to the Board.
R.A. 91–104.
On July 8, 2019, the administrative judge (“AJ”) issued
an order informing Vindiola of his burden to establish ju-
risdiction over his claim by nonfrivolously alleging that he
performed duty in a uniformed service, that he lost a bene-
fit of employment or any of the rights protected by
USERRA, and that his performance of duty in the uni-
formed service was a substantial or motivating factor in the
loss of the right or benefit. R.A. 80–81 (citing 38 U.S.C.
§ 4311(a)). In his response, Vindiola alleged that he met
the first requirement by virtue of his service in the U.S.
Army, and that he met the second requirement by virtue of
2 In each of 2003 and 2017, Vindiola filed an appeal
of his termination at the Board, both of which were dis-
missed for lack of jurisdiction. See Initial Decision, R.A. 15.
Each of those dismissals became final after Vindiola did not
file a petition for review. Id.
Case: 25-1238 Document: 25 Page: 3 Filed: 09/03/2025

-- 3 of 6 --

VINDIOLA v. MSPB 4
his lost benefit of employment when he was forced to resign
after the agency’s suitability determination. R.A. 55. With
respect to the third requirement, he alleged that “the per-
formance of his duty in the uniformed service was [] cer-
tainly a substantial or motivating factor in the loss of his
employment given that [his coworker] alleged that [Vindi-
ola] had committed war crimes while serving in Vietnam.”
R.A. 56. Thus, he alleged that all three jurisdictional re-
quirements had been met. Id.
On August 13, 2019, the AJ issued an initial decision
dismissing Vindiola’s appeal for lack of jurisdiction. The
AJ found that, although Vindiola had nonfrivolously al-
leged the first two requirements of jurisdiction, “he failed
to meet his burden as to the remaining element of USERRA
jurisdiction, i.e., he did not proffer nonfrivolous allegations
[that] the denials [of employment] were due to his uni-
formed service.” Initial Decision, R.A. 19–20. Vindiola
filed a petition for review by the Board, and on October 24,
2024, the Board issued a final order denying the petition
and affirming the initial decision. Final Order, R.A. 1–8;
but see Final Order, R.A. 9–10 (Harris, C., dissenting) (stat-
ing that she would have found jurisdiction based on the fac-
tual nature of Vindiola’s allegations). Vindiola timely
appealed, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We may only set aside the Board’s decision when it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Whether the Board has jurisdiction over
an appeal is a question of law that we review de novo, For-
est v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995),
and we review the Board’s underlying factual findings for
substantial evidence, Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998).
Case: 25-1238 Document: 25 Page: 4 Filed: 09/03/2025

-- 4 of 6 --

VINDIOLA v. MSPB 5
As part of USERRA, § 4311(a) provides that a member
of a uniformed service “shall not be denied . . . retention in
employment, promotion, or any benefit of employment . . .
on the basis of that membership [or] performance of ser-
vice . . . .” The sole question on appeal is whether Vindiola,
a preference-eligible veteran who was denied retention af-
ter the agency forced him to resign or found him unsuitable
for employment, see Initial Decision, R.A. 19–20, made a
“nonfrivolous allegation that his military service was a
substantial or motivating factor in the agency’s action in
question.” See Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d
1374, 1381 (Fed. Cir. 2017) (citations and internal quota-
tion marks omitted); see also 5 C.F.R. § 1201.57(b). An al-
legation is nonfrivolous when it: “[i]s more than
conclusory; . . . [i]s plausible on its face; and . . . [i]s mate-
rial to the legal issues in the appeal.” 5 C.F.R. § 1201.4(s);
see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (deter-
mining whether a complaint states a plausible claim for re-
lief is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense”).
On appeal, Vindiola argues that a second investigation
into his alleged misconduct by the Department of State’s
Diplomatic Security Service found that the “allegations of
visa fraud and consular malfeasance” were unsubstanti-
ated, and that the Board failed to take that second investi-
gation into account. Pet. Br. 2–3. That argument does not
address the question of the Board’s jurisdiction under
USERRA, and specifically whether the Board properly
found that he failed to “proffer nonfrivolous allegations
[that] the denials [of employment] were due to his uni-
formed service.” See Initial Decision, R.A. 19–20. In reply,
Vindiola appears to argue that the accusation that he made
disruptive statements in the office recounting the commis-
sion of war crimes during his service in Vietnam was made
by an unreliable witness, and therefore the Board’s deci-
sion should be set aside as unsupported by substantial ev-
idence. See Pet. Reply Br. 1–2.
Case: 25-1238 Document: 25 Page: 5 Filed: 09/03/2025

-- 5 of 6 --

VINDIOLA v. MSPB 6
Even if Vindiola’s assertion is true, that his former co-
worker was unreliable and the allegation of comments re-
garding his service were unsubstantiated, it is not plausi-
ble that his performance of duty in uniformed service itself
was a substantial or motivating factor in his termination.
Rather, per his evaluation, it was that his comments were
“disruptive” because of their “criminal nature.” R.A. 100.
Further, the evaluation considered a variety of other al-
leged malfeasances that resulted in his separation. See id.
(commenting that he was “suspected in the selling of Im-
migration [and] Naturalization Green Cards [and] laser vi-
sas,” allegedly “made slanderous statements about other
employees, allegedly “asked another employee to obtain co-
caine [and] marijuana for him,” and had six interviewed
employees recommend that he not continue in his position).
Vindiola failed to make any allegations of fact that tied
his denial of employment to his uniformed service. The
mere fact that his pleading and termination letter mention
his service creates at most a conclusory allegation and does
not rise to the level of plausibility given the context of Vin-
diola’s separation. See Iqbal, 556 U.S. at 679. We therefore
conclude that the Board did not err in determining that
Vindiola had not alleged a USERRA claim sufficient to con-
fer jurisdiction on the Board.
CONCLUSION
We have considered Vindiola’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s dismissal of his USERRA claim for lack
of jurisdiction.
AFFIRMED
COSTS
The parties shall bear their own costs.
Case: 25-1238 Document: 25 Page: 6 Filed: 09/03/2025

-- 6 of 6 --