NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

LEROY ALFORD, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

__________________________ 

2010-3112 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. DC3330090703-I-1. 

__________________________ 

Decided: January 19, 2011 

__________________________ 

LEROY ALFORD, Temple Hills, Maryland, pro se. 

MICHAEL D. AUSTIN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and DONALD E. KINNER, 

Assistant Director. 

__________________________ 
ALFORD v. DEFENSE 2

Before RADER, Chief Judge, GAJARSA and PROST, Circuit 

Judges. 

PER CURIAM. 

Petitioner Mr. Leroy Alford appeals from the final decision of the Merit Systems Protection Board (“Board”) 

dismissing his claim under the Veterans Employment 

Opportunities Act of 1998 (“VEOA”) for failure to state a 

claim upon which relief can be granted and dismissing his 

Uniformed Services Employment and Reemployment 

Rights Act of 1994 (“USERRA”) claim for lack of jurisdiction. We affirm. 

BACKGROUND

Mr. Alford began his civil service employment with 

the Defense Intelligence Agency (“DIA” or “Agency”) on 

June 26, 2006. At the same time, he was on terminal 

leave from his job with the United States Air Force. Mr. 

Alford retired from the Air Force on August 31, 2006 

following a twenty-three year military service career. 

During the overlap between his terminal leave and starting with the agency, Mr. Alford alleged that he was 

credited only four hours of annual leave per pay period 

based on his years of civilian service. Mr. Alford later 

learned that a Department of Justice legal opinion required that civilian employees accrue annual leave during 

the time period of their terminal leave from the military 

at a rate which accounts for their years of military service. Thus, Mr. Alford sought to be credited annual leave 

at a rate of eight hours per pay period for the duration of 

his terminal leave, rather than four hours per pay period. 

After various alleged attempts to receive credit for the 

missing annual leave, Mr. Alford appealed to the Board. 

The administrative judge issued a show cause order 
3 ALFORD v. DEFENSE

informing Mr. Alford that it was his burden to prove that 

the Board had jurisdiction over his appeal under VEOA or 

USERRA. In the initial decision, the administrative 

judge found that Mr. Alford failed to establish the Board’s 

jurisdiction over his VEOA claim because 5 U.S.C. § 6303 

is a statutory provision governing the accrual of annual 

leave by Federal employees having nothing to do with 

veterans’ preference. The administrative judge also found 

that Mr. Alford failed to establish the Board’s jurisdiction 

under a USERRA claim because as an employee of an 

intelligence agency, Mr. Alford’s USERRA claim was 

ineligible for judicial review. The administrative judge 

further determined that Mr. Alford failed to state a claim 

under either VEOA or USERRA. 

Mr. Alford petitioned the full Board for review. The 

Board denied his petition, noting that it did not meet the 

criteria for review set by 5 C.F.R. § 1201.115. The Board 

found that Mr. Alford’s petition did not make any argument establishing error by the administrative judge or 

presenting any new and material evidence affecting the 

outcome of the case. The Board, however, reopened Mr. 

Alford’s case to modify and affirm the administrative 

judge’s decision. The Board concluded that a veteran’s 

claim of violation of veterans’ preference rights should be 

liberally construed and that the judge erred in determining that the Board lacked jurisdiction over Mr. Alford’s 

VEOA claim. Nevertheless, the Board affirmed the 

administrative judge’s finding that Mr. Alford failed to 

state a claim upon which relief can be granted under 

VEOA. It reasoned that the leave accrual provisions of 5 

U.S.C. § 6303 do not stand in some relation to, have a 

bearing on, concern, or have a connection with veterans’ 

preference rights. The Board also affirmed the judge’s 

finding that Mr. Alford failed to establish the Board’s 

jurisdiction of his USERRA claim, therefore vacating the 
ALFORD v. DEFENSE 4

judge’s alternative finding that Mr. Alford’s USERRA 

claim must be dismissed for failure to state a claim. This 

petition for review followed. 

DISCUSSION

We must affirm a Board's decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c). We review questions of law and determinations of jurisdiction without deference to the Board. 

Carley v. Dep’t of the Army, 413 F.3d 1354, 1356 (Fed. Cir. 

2005). 

Mr. Alford contends that agency violated 5 U.S.C. § 

6303 (dealing with employee leave accrual), thereby 

denying him enumerated rights under the VEOA. Mr. 

Alford argues that the VEOA clearly “conveys a veteran 

preference for a retired uniformed service member [sic] 

sacrifices during a during a [sic] period of war or in a 

campaign or expedition.” 

The government responds, arguing that the underlying statute that Mr. Alford claims was violated does not 

implicate any right a preference eligible veteran may 

have under the VEOA. According to the government, the 

statutory provision upon which Mr. Alford relies concerns 

how leave is to be credited once a veteran is employed by 

the agency in no way relates to any right a veteran may 

have when competing for a federal position. 

The government is correct. “Veterans’ preference 

rights are defined by the Veterans’ Preference Act of 1944 

(‘VPA’), Pub.L. No. 78-359, 58 Stat. 387 (codified at 5 
5 ALFORD v. DEFENSE

U.S.C. §§ 2108, 3309-3320), and its attendant regulations, 

see 5 C.F.R. §§ 302.101-302.403 (2005). The VPA generally gives a qualifying veteran, known as a ‘preference 

eligible,’ various preferences in applying for civil service 

positions within the competitive and excepted services.” 

Patterson v. Dep’t of the Interior, 424 F.3d 1151, 1155 

(Fed. Cir. 2005). The various preference rights available 

to preference eligible veterans during the civil service 

hiring process, however, are not implicated by Mr. Alford’s claim under the VEOA relating to accrual of annual 

leave. See 5 U.S.C. § 6303. Thus, the Board did not err in 

determining that Mr. Alford failed to state a claim under 

VEOA for which relief can be granted. 

Turning now to Mr. Alford’s second claim, he argues 

that the agency violated USERRA by failing to credit him 

the leave sought. He further alleges that the Board erred 

in determining that it lacked jurisdiction over his 

USERRA claim and that intelligence agencies are not 

exempt from their obligations to comply with USERAA. 

See 38 U.S.C. §§ 4315, 4325. 

In response, the government argues that the Board 

correctly determined that it did not have jurisdiction over 

Mr. Alford’s USERRA claim. The government argues that 

according to 5 U.S.C. § 2302(a)(2)(C)(ii), the DIA, where 

Mr. Alford was employed, is excluded from the definition 

of a Federal executive agency falling within the scope of 

the Board’s grant of authority over prohibited personnel 

actions. 

We agree with the government. There is no dispute 

that that the DIA is an intelligence agency and that Mr. 

Alford was employed by the DIA at the time of his claim. 

Under USERRA, “[a] person may submit a complaint 

against a Federal executive agency or the Office of Per-
ALFORD v. DEFENSE 6

sonnel Management” directly to the Board. See 38 U.S.C. 

§ 4324. “Federal executive agency” is defined to include 

“any Executive agency . . . other than an agency referred 

to in section 2302(a)(2)(C)(ii) of title 5.” This section, 

however, excepts “the Federal Bureau of Investigation, 

the Central Intelligence Agency, the Defense Intelligence 

Agency, the National Geospatial-Intelligence Agency, the 

National Security Agency, and . . . any Executive agency 

or unit thereof the principal function of which is the 

conduct of foreign intelligence or counterintelligence 

activities” from Board review. 5 U.S.C. § 2302(a)(2)(C)(ii) 

(emphasis added). Thus, even if Mr. Alford is correct that 

intelligence agencies are not exempted from their obligations under USERRA, the Board lacks jurisdiction to hear 

any claim that the DIA failed to comply with its alleged 

obligations under USERRA. 

In sum, there exists no reversible error in the Board’s 

determination that Mr. Alford failed to state a claim upon 

which relief could be granted under VEOA and the 

Board’s determination that it did not have jurisdiction 

over Mr. Alford’s USERRA. We have reviewed Mr. Alford’s other arguments and consider them unpersuasive.1 

Accordingly, we affirm the decision of the Board dismissing Mr. Alford’s appeal. 

AFFIRMED

 1 We note that Mr. Alford has been paid $1,392 as 

compensation for the hours of annual leave he claimed 

were due him. He continues, however, to protest related 

issues regarding back interest, etc.