NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3195 ROBERT A. KURSAR, Petitioner,

v. DEPARTMENT OF TRANSPORTATION, Respondent.

___________________________ DECIDED: December 12, 2005

___________________________ Before RADER, BRYSON, and GAJARSA, Circuit Judges

. PER CURIAM. DECISION Robert A. Kursar appeals from a decision of the Merit Systems Protection Board, No. SE-315H-03-0187-I-2, holding that his termi nation from the Transportation Security Administration (“TSA”) did not violate t he Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). In his petition for review to the full Board, Mr. Kursar proffered certain evi dence that he contended was new and material. The Board summarily denied his pet ition. Because the record is insufficient to support aconclusion that the proffered evi dence was not new and material, we vacate the Board’s order and remand the case to the Board for further consideration of that issue. BACKGROUND On April 7, 2002, Mr. Kursar was sele cted for an excepted se rvice position with the TSA as a Federal Air Marshal. His appoi ntment was subject to a one-year trial period. Mr. Kursar reported to his assigned field office in Seattle on April 22, 2002. On April 23, Mr. Kursar’s supervisor, Special Agent In Charge William Blake, Jr., informed Mr. Kursar that there were some questi ons regarding Mr. Kurs ar’s employment application, and that he woul d be placed on administrative suspension pending further background investigation. On April 25, Mr. Bl ake gave Mr. Kursar written notice of his intention to terminate Mr. Kursar because of false or incorrect information on his employment application. Mr. Kursar submi tted a written response to the proposed termination on April 29. After consideri ng that response, Mr. Blake terminated Mr. Kursar on May 3, 2002. The present dispute stems from a conv ersation that Mr. Blake had with Major Wellington Y. Hom on April 22, 2002, the day before Mr. Blake put Mr. Kursar on administrative suspension. Major Hom served with Mr. Kursar in an Army Reserve unit in 1994 and 1995. On April 22, Major Hom was in the Seattle field office for a meeting with Mr. Blake. While he was there, Majo r Hom recognized Mr. Kursar and told Mr. Blake that Mr. Kursar had had em ployment problems in the pa st. The contents of that conversation are critical to the present dispute. Mr. Kursar contends that Major Hom had a grudge against him based, in part, on a USERRA claim that Mr. Kursar had filed against the Whatcom County Sheriff’s office

05-3195 2in 1996, a claim that apparently led to reprim ands for some of Major Hom’s friends who worked at the sheriff’s office. In his appeal to the MSPB, Mr. Kursar asserted that Major Hom told Mr. Blake that Mr. Ku rsar would not hesitate to file similar complaints against law enforcement agencies such as the TSA. Although it is unc lear from the record how Mr. Kursar reached that conclusion as to what Major Hom and Mr. Blake discussed in their April 22 conversation, he contended that in light of that conversation, his termination must have been based on his 1996 USE RRA claim and/or his status as an Army reservist. Mr. Blake and Major Hom presented a di fferent version of their April 22 conversation. They claimed that the conversation focused on Mr. Kursar’s history of lying on employment applications, and they furt her claimed that, as of April 22, neither Mr. Blake nor Major Hom even knew about Mr. Kursar’s 1996 USERRA claim. Mr. Kursar appealed his termination to the MSPB in March of 2003. The administrative judge noted that because Mr. Kursar’s positi on was probationary, he was not an “employee” within the meaning of 5 U.S.C. § 7511(a)(1) an d therefore had no right to appeal his termination. Based on that preliminary c onclusion, the administrative judge issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction. In response to that order, Mr. Kursar alleged that his termination violated USERRA because it was motivated by his stat us as an Army reservist and/or his 1996 USERRA claim. Because Mr. Kursar was a probationary employee, the administrative judge found that the Board had ju risdiction to hear Mr. Kursar’s USERRA claim, but did not have jurisdiction to otherwise review the merits of his termination.

05-3195 3After a hearing held on March 2 and 3, 2004, the administrative judge issued an Initial Decision in August 2004 denying Mr. Ku rsar’s request for relief under USERRA. The administrative judge found t hat Mr. Blake’s and Major Hom’s version of the April 22 conversation was credible. In particular, the administrative judge concluded that there was no evidence that Mr. Blake or Major Hom even knew about Mr. Kursar’s 1996 USERRA claim as of April 22, 2002. Thus , although the administr ative judge found that Mr. Blake based his decision to terminate Mr. Kurs ar on a “gut feeling” that was “entirely [based] on the allegations contained in Majo r Hom’s declaration,” the administrative judge concluded that there was no evidence s upporting Mr. Kursar’s allegation that his termination was motivated by his military status or his 1996 USERRA claim. In late May of 2004, nearly three months after the hearing, Mr. Kursar’s lawyer— William B. Knowles—obtained a letter from Matthew Johnson, an investigator who worked for the Ministry of the Attorney G eneral in British Columbia. The letter was apparently sent in response to a Freedom of Information Act request that Mr. Knowles pursued after Major Hom’s deposition, in wh ich Major Hom said that he had talked to background investigators about Mr. Kursar. In July of 2004, Mr. Knowles was indicted on unrelated matters. Although Mr. Knowles’s o ffice had a copy of Mr. Johnson’s letter, Mr. Kursar was not able to obtain a copy of the letter until September 29, 2004, through newly hired counsel. On October 4, 2004, Mr. Johnson signed an affidavit swearing to the contents of his earlier letter. Accord ing to the affidavit, Mr. Johnson conducted a background check on Mr. Kursar in 2002, purs uant to an employment application that Mr. Kursar submitted after his termination fr om the TSA. As part of that background check, Mr. Johnson interviewed Major Hom. According to Mr. Johnson’s affidavit,

05-3195 4during that interview Major Hom talked about Mr. Kursar’s 1996 USERRA claim and stated that he knew about Mr. Kursar’s 1996 USERRA claim because he knew the individuals at the sheriff’s office who were involved in the claim. According to Mr. Johnson, Major Hom also said that he told Mr. Blake about Mr. Kursar’s 1996 USERRA claim. When asked by Mr. Johnson why he told Mr. Blake about Mr. Kursar’s 1996 USERRA claim, Major Hom responded, in ess ence, that he thought it was important for Mr. Blake to know that Mr. Kursar was a “t roublemaker” who would not hesitate to make reports against other law enforcement officers. Although Mr. Johnson’s letter was apparently sent in response to Mr. Knowles’s Freedom of Information Act request, the record contains no evidence regarding how or when that request reached Mr. Johnson. Bas ed on Mr. Johnson’s affidavit, all that the record shows is that Mr. Kursar’s first contact with Mr. Johnson (through Mr. Kursar’s lawyer, Mr. Knowles) was in April 2004, and that Mr. Johnson was on vacation and unreachable from February 2004 (just before Mr. Kursar’s hearing on March 2 and 3) through mid-April 2004. Mr. Kursar filed a petition for review of the Initial Decision on October 27, 2004, arguing that Mr. Johnson’s affidavit constitu ted new and material evidence. The Board summarily rejected the petition, and Mr. Kursar appeals. DISCUSSION In his appeal, Mr. Kursar raises two issues . First, Mr. Kursar argues that he was denied due process because he was terminat ed without an adequate opportunity to respond to Major Hom’s allegations. However, because Mr. Kursar was completing a probationary period in an except ed service position—a conclusion Mr. Kursar does not

05-3195 5challenge—he has failed to show that he wa s denied procedural rights to which he was entitled. Under 5 U.S.C. §§ 7511-13, for purposes of appealing a removal action, a petitioner must be included in one of several possible categories in order to meet the definition of “employee.” Mr. Kursar was employed by the TSA on a trial basis for less than one month. Accordingly, he was not within the statutory definition of “employee” in section 7511(a)(1), regardless of whether he was, as he asserts in his brief, a preference eligible veteran. Because he was not an “employee” under section 7511, he was not entitled to the protections of sect ion 7513, which include the right to 30 days written notice, an opportunity to respond, and the right to appeal an adverse decision to the MSPB. See Horner v. Lucas , 832 F.2d 596, 597 (Fed. Cir. 1987) (holding that petitioner was not entitled to the protections of 5 U.S.C. §§ 7511(a)(1) and 7513 because under section 7511(a)(1)(A) the tempor ary status of his position in the competitive service prevented him from qua lifying as an employee). And because of Mr. Kursar’s status as a probationary employ ee, the Board correctly concluded that Mr. Kursar had no right to appeal the merits of his termination to the MSPB. 1 The second issue raised by Mr. Kursar on appeal is whether the Board should have granted his petition for review based on Mr. Johnson’s affidavit, which Mr. Kursar contends is new and material evidence supporting his USERRA claim. To prevail on his USERRA claim, Mr. Kursar bor e the initial burden of showing that his military status or

1 As a probationary em ployee, Mr. Kursar lacked a property interest in his position that entitled him to procedural protections under the Fifth Amendment’s Due Process Clause. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 541 (1985); Bd. of Regents v. Roth , 408 U.S. 564, 577 (1972); Silva v. Bieluch , 351 F.3d 1045, 1047 (11th Cir. 2003); Williams v. Seniff , 342 F.3d 774, 787 (7th Cir. 2003); Finley v. Giacobbe , 79 F.3d 1285, 1297-98 (2d Cir. 1996).

05-3195 6his past USERRA claim was “at least a motivating or substantial factor” in the agency’s decision to terminate him. Sheehan v. Dep’t of the Navy , 240 F.3d 1009, 1014 (Fed. Cir. 2001). By regulation, the Board will grant a petition for review when it finds that “new and material evidence is available tha t, despite due diligence, was not available when the record closed.” 5 C.F.R. § 1201.115(d)(1); see Wright v. U.S. Postal Serv. , 183 F.3d 1328, 1332 (Fed. Cir. 1999). New evidence is “material” if it is “of sufficient weight to warrant an outcome different from that of the initial decision.” Bucci v. Dep’t of Educ. , 42 M.S.P.R. 47, 55 (1989). Although Mr. Kursar’s petition for review was based on Mr. Johnson’s affidavit, neither the TSA in its respons e to the petition, nor the B oard in its order denying the petition, specifically addressed Mr. Johnson’s affidavit. Rather, the TSA simply argued in its response, as it does in its brief in this court, that t he initial decision boiled down to a credibility determination—weighing the credi bility of Major Hom and Mr. Blake against the credibility of Mr. Kursar— and that Mr. Kursar’s “new” evidence merely challenges the administrative judge’s credib ility determination. That res ponse is incomplete for two reasons. First, while it may be true, as the agency argues, that new evidence regarding witness credibility is rarely material, see, e.g. , Bucci , 42 M.S.P.R. at 55, it is also true that a decision resting entir ely on a credibility determination might be affected by evidence that was not pres ented to the administrative judge, but that directly undermines the central cr edibility determination, Wright , 183 F.3d at 1332. Second, Mr. Johnson’s affidavit does more than mere ly impeach Mr. Blake’s and Major Hom’s credibility. Rather, it direct ly contradicts the critical fa ctual determination on which the Initial Decision hinged. The Initial Decisi on on Mr. Kursar’s USERRA claim hinged on

05-3195 7the administrative judge’s conc lusion that Major Hom and Mr. Blake did not discuss Mr. Kursar’s 1996 USERRA claim during their April 22 conversation and that neither of them even knew about Mr. Kursar’s past USERRA claim. While that conclusion was reasonable in light of the administrative record at the time of the hearing, Mr. Johnson’s affidavit directly contradict s that critical conclusion based on a statement reportedly made by Major Hom. Not only does Mr. J ohnson’s affidavit suggest that Major Hom and Mr. Blake knew about Mr. Kurs ar’s 1996 USERRA claim, but it further suggests that the critical conversation between Major Hom and Mr. Blake focused, at least in part, on Major Hom’s assertion that Mr. Kursar was unf it for a TSA position precisely because he had filed a USERRA claim in t he past. If that assertion was a motivating factor in Mr. Blake’s “gut feeling” to terminate Mr. Kurs ar, then Mr. Kursar would likely have met his initial burden of showing that his military service or hi s past USERRA claim was a motivating or substantial factor in his termination, and the agency would have to show that Mr. Kursar would have been terminated regardless of his 1996 USERRA claim and his military status. Sheehan , 240 F.3d at 1014. Contrary to the agency’s vague response to Mr. Kursar’s petition for review , Mr. Johnson’s affidavit was therefore at least facially material. The full Board’s order dismissing Mr. Kursar ’s petition for review did not refer to the materiality of Mr. Johnson’s affidavit. Rather, the Board summarily concluded that Mr. Kursar had presented “no new, previously unavailable, evidence.” Similarly, TSA’s brief in this court asserts, without much el aboration, that Mr. Johns on’s affidavit was not “new” evidence. The record, however, show s that Mr. Johnson’s first contact with Mr. Kursar was in late April 2004, more than a month after Mr. Kursar’s hearing, and that

05-3195 8Mr. Kursar did not obtain Mr. Johnson’s letter and his affidavit until after the administrative judge’s decision in the case. If, despite due diligence, Mr. Kursar could not have obtained the evidence before the reco rd closed, Mr. Johns on’s affidavit would appear to be “new.” Although we do not conclude here that Mr. Johnson’s affidavit was new or material, we believe the reco rd, in its current state, does not support a conclusion that substantial evidence shows t hat the affidavit did not constitute “new and material” evidence. Further proceedings are necessa ry to ascertain whether Mr. Johnson’s affidavit was new and material evidence and, if so, whether that evidence, if considered by the administrative judge, w ould result in a different out come in this case. We therefore vacate the Board’s order and rem and this case to the Board for further proceedings addressed to Mr. Kursar’s new and material evidence claim.

05-3195 9