NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SAMUEL EARL TOOTLE, II,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3182

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT4324120819-I-1.

______________________ 

Decided: March 7, 2014

______________________ 

SAMUEL EARL TOOTLE, II, of Biloxi, Mississippi, pro se. 

MICHAEL A. CARNEY, General Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC. With him on the brief was BRYAN G.

POLISUK, General Counsel.

______________________ 

Before REYNA, WALLACH, and TARANTO, Circuit Judges.
2 TOOTLE v. MSPB

PER CURIAM. 

Samuel Earl Tootle, II, seeks review of a decision by 

the Merit Systems Protection Board that it lacked jurisdiction over his appeal under the Uniformed Services 

Employment Rights Act of 1994 (“USERRA”), codified at 

38 U.S.C. §§ 4301-335. We affirm.

BACKGROUND

Mr. Tootle served in the United States Navy from 

April 1979 until June 1993. Although Mr. Tootle received 

three honorable discharges during his military career, Mr. 

Tootle’s fourth and final discharge was dishonorable, 

based on a court martial conviction. As a result of his 

conviction, Mr. Tootle was incarcerated from November 6, 

1997, until October 16, 2003. 

Effective August 28, 2011, the Department of Veterans Affairs (the “agency”) appointed Mr. Tootle to a 

position as a Housekeeping Aid at the Veterans Health 

Care System in Biloxi, Mississippi. This appointment 

was subject to a two-year probationary period. On August 

29, 2011, Mr. Tootle filled out Optional Form 306, Declaration for Federal Employment. In response to question 9 

on that form, which asks “During the last 10 years, have 

you been imprisoned, been on probation, or been on 

parole?,” Mr. Tootle responded “No.” 

The agency conducted a routine background investigation of Mr. Tootle during the first few months of his 

probationary employment. It learned that Mr. Tootle had 

been “convicted of a court martial and received a dishonorable discharge from the United States Navy and incarcerated from November 6, 1997 to October 16[,] 2003.” 

This meant that Mr. Tootle’s response to question 9 on 

Optional Form 306 was inaccurate. On November 1, 

2011, the agency notified Mr. Tootle of the results of its 

investigation and that it intended to terminate his appointment in accordance with 5 C.F.R. § 315.805. On 
TOOTLE v. MSPB 3

June 1, 2012, after receiving Mr. Tootle’s response to the 

allegations, the agency notified him that it would be 

terminating his employment as of June 16, 2012. Mr. 

Tootle resigned from his position on June 15, 2012, one 

day before the effective date of his termination. 

On July 11, 2012, Mr. Tootle filed a claim under 

USERRA with the Veterans’ Employment and Training 

Service, which then assigned the claim to the Office of 

Special Counsel in accordance with the applicable law. 

On July 30, 2012, the Office of Special Counsel notified 

Mr. Tootle that it had completed its review of his complaint, but that it was unable to take further action

because his dishonorable discharge meant that he was not 

entitled to the protections of USERRA. 

Mr. Tootle then filed an appeal with the Merit Systems Protection Board alleging (1) that the decision to 

terminate his employment violated agency procedures, 

was a prohibited personnel practice, or was not in accordance with law, (2) that the agency violated his rights 

under USERRA, and (3) that the agency violated a law or 

regulation relating to a preference for veterans. The 

administrative law judge docketed Mr. Tootle’s appeal as 

three separate appeals. 

On September 12, 2012, an administrative law judge 

dismissed the first appeal for lack of jurisdiction. The 

next day, the administrative law judge issued orders in 

the two other appeals, addressing whether Mr. Tootle’s 

USERRA and veterans’ preference claims were within the 

Board’s jurisdiction. The USERRA order, which is the 

subject of the present appeal, specifically explains that 

there are two types of cases arising under USERRA that 

are within the Board’s jurisdiction (discrimination and 

reemployment cases) and details the “non-frivolous allegations,” i.e., allegations “supported by affidavits or other 

evidence,” that an appellant would have to make in order 

to come within either category. The orders gave Mr. 
4 TOOTLE v. MSPB

Tootle twelve days to file a response that addressed the 

identified jurisdictional requirements. 

On September 26, 2012, Mr. Tootle filed a motion requesting a 60-day extension of time to file a response to 

the “COURTS MULTIPLE ORDERS.” Although Mr. 

Tootle did not specify the orders for which he was seeking 

an extension, it appears that he meant to ask for an 

extension to respond to the September 12, 2012, dismissal 

for lack of jurisdiction as well as the two September 13, 

2012 jurisdictional orders. On October 4, 2012, the administrative law judge granted Mr. Tootle’s request in 

part, allowing him until October 18, 2012, to respond to 

the “Board’s September 13th Order.” The administrative 

law judge did not clarify which of the Board’s September 

13, 2012 jurisdictional orders it was referring to, but the 

docket number indicates that it was the USERRA appeal.1 

Mr. Tootle filed no response to the USERRA jurisdictional order, and on November 21, 2012, the administrative law judge issued an initial decision on the merits. 

The judge stated that, in order to “establish jurisdiction 

over a USERRA discrimination appeal under 38 U.S.C. 

§ 4311(a), an appellant must allege that: (1) he performed 

duty or has an obligation to perform duty in a uniformed 

service of the United States; (2) the agency denied his 

initial employment, reemployment, retention, promotion, 

or any benefit of employment; and (3) the denial was due 

to the performance of duty or obligation to perform duty 

in the uniformed service.” Tootle v. Dep’t of Veterans 

Affairs, No. AT-4324-12-0819-I-1, slip op. at 3 (M.S.P.B. 

1 There is no indication in the record before us that 

the administrative law judge separately addressed Mr. 

Tootle’s requests for extensions to respond to the other 

two orders, and we therefore understand those to have 

been denied. 

 
TOOTLE v. MSPB 5

Nov. 21, 2012). The judge found that, although Mr. Tootle 

served in the military and was the subject of an adverse 

employment decision, he failed to allege that the proposed 

removal resulted from his performance of his military

service. The judge also noted that, even if Mr. Tootle had 

made such an allegation, he was disqualified from seeking 

relief under USERRA because of his dishonorable discharge. The judge therefore dismissed the appeal for lack 

of jurisdiction. 

Mr. Tootle filed a petition for review with the Board. 

In his petition, Mr. Tootle alleged for the first time that 

the agency had discriminated against him when it proposed his removal based on his court martial conviction 

and dishonorable discharge. On August 22, 2013, the 

Board denied the petition for review and issued a final 

order affirming the dismissal. The Board explained that, 

although Mr. Tootle now alleged that the agency had 

discriminated against him for incidents that occurred 

during his military service, it would not consider that 

allegation because Mr. Tootle had not made the allegation

until his petition for review and he had failed to make a 

showing that it was based on new and material evidence 

not previously available. The Board also found that it 

lacked jurisdiction on the independent ground that Mr. 

Tootle’s dishonorable discharge terminated his entitlement to pursue a claim under USERRA. 

Mr. Tootle appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(9).

DISCUSSION

Whether the Board has jurisdiction over an appeal is 

a question of law, which we review without deference. 

Hayes v. U.S. Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir.

2004). 

The Board has jurisdiction over claims made by federal employees who are entitled to the rights and protec-
6 TOOTLE v. MSPB

tions of USERRA. 38 U.S.C. §§ 4304(1), 4324(b); 5 C.F.R. 

§ 1208.2(a). That Act provides specific rights to workers 

who have been “denied . . . employment, reemployment, 

retention in employment, promotion, or any benefit of 

employment” because of their military service. 38 U.S.C. 

§ 4311(a); 5 C.F.R. § 1208.2(a). In order to establish that 

the Board has jurisdiction over an appeal based on an 

alleged USERRA violation, a petitioner must make nonfrivolous allegations that he or she was a member of the 

uniformed services, and was denied initial or continued 

employment or a benefit of employment, and that military 

service was a “substantial or motivating factor” in the 

denial. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 

(Fed. Cir. 2001); see Hayes, 390 F.3d at 1376. The Board 

properly found that Mr. Tootle failed to do so.

The administrative law judge’s jurisdictional order

correctly informed Mr. Tootle that his USERRA claim 

depended on his making a non-frivolous allegation that 

the performance of his military service was “a substantial 

or motivating factor” in the agency’s decision to terminate 

him. Despite being advised of this requirement and 

requesting and receiving additional time to respond to the 

Board’s order, Mr. Tootle chose not to make the required 

evidence-supported allegation at any time before the 

administrative law judge dismissed his USERRA appeal. 

Mr. Tootle did eventually allege that the agency discriminated against him on the basis of his prior military service (i.e., a court martial that occurred during his military 

service, and subsequent conviction and dishonorable 

discharge), but he did not make that allegation until his 

petition for review. We see no error in the Board’s decision not to consider this new allegation made by Mr. 

Tootle. 

The applicable regulation provides in relevant part 

that the Board “may grant a petition . . . for review” when

it is established that “[n]ew and material evidence . . . is 

available that, despite due diligence, was not available 
TOOTLE v. MSPB 7

when the record closed.” 5 C.F.R. § 1201.115(d); see

Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1328 

(Fed. Cir. 2006) (“Both this court and the Board have held 

that a party submitting new evidence in connection with a 

petition for review must satisfy the burden of showing 

that the evidence is material and that it could not have 

been obtained earlier with the exercise of due diligence.”). 

Mr. Tootle did not meet his burden. As the Board correctly pointed out, Mr. Tootle failed to show that his new 

discrimination allegation was in any way based on new 

and material evidence: He failed to make any statement 

in his petition for review explaining why he could not 

have made this allegation earlier, before the record closed. 

In these circumstances, the Board committed no error in 

declining to consider the new allegation, denying the 

petition for review, and affirming the administrative law 

judge’s determination that the USERRA claim was deficient for jurisdictional purposes. 

The Board likewise committed no error in finding no 

jurisdiction on a second ground—that, even if Mr. Tootle 

had made the required discrimination allegation, he still 

could not pursue a claim under USERRA. Under the 

plain language of 38 U.S.C. § 4304(1), “[a] person’s entitlement to the benefits [of USERA] . . . terminates upon 

the occurrence of . . . [a] separation of such person from 

such uniformed service with a dishonorable or bad conduct discharge.” Despite Mr. Tootle’s three honorable 

discharges, his one dishonorable discharge takes away 

any standing he would otherwise have had to bring his 

USERRA claim. Downs v. Dep’t of Veterans Affairs, 110 

M.S.P.R. 139, 146-47 (2008); Whisnant v. U.S. Postal 

Serv., NY-3443-99-0131-I-1, 1999 WL 803850 (M.S.P.B. 

Sept. 29, 1999) (affirming a dismissal for lack of jurisdiction under section 4304 where the appellant’s discharge 

from the military was dishonorable). 

In response, Mr. Tootle argues that section 4304, in 

terminating USERRA rights for those dishonorably 
8 TOOTLE v. MSPB

discharged, is unconstitutional on equal protection, due 

process, or cruel and unusual punishment grounds. This 

argument, even if it had merit, would not undermine the 

correctness of the Board’s dismissal, because it has no 

bearing on the independent ground that he did not present necessary allegations under USERRA. In any event, 

we see no merit in the argument. Mr. Tootle has not 

pointed to anything in the cited constitutional standards 

that prevented Congress from excluding those dishonorably discharged from the special benefits it provided to 

those who served in the military and completed such 

service honorably. Mr. Tootle was entitled to pursue 

remedies available to those not granted the special benefits of USERRA, which is a step that he, in fact, took. 

Mr. Tootle’s remaining arguments do not alter our 

conclusion. Mr. Tootle contends that certain facts and 

documents were not included in the record before the 

Board, but most of the identified documents are orders in 

a separate appeal that would not alter our holding in the 

present appeal. And to the extent that Mr. Tootle contends that the administrative law judge erred by not

providing him with the full 60-day extension that he 

requested, we see no abuse of discretion in the provision 

of only fourteen days—which, in any event, has no effect 

on the dishonorable-discharge bar to Mr. Tootle’s claim.

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the Board. 

No costs. 

AFFIRMED