N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ MILO D. BURROUGHS, Petitioner,

v.

DEPARTMENT OF THE AR MY, Respondent.

______________________

2014

- 3008

______________________ Petition for review of the Merit Systems Protection Board in No. DA4324130149 -I- 1.

______________________ Decided: March 10, 2014

______________________

M ILO D. B URROUGHS , of Yelm, Washington, p ro se.

N ATHANAEL B. Y ALE , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were S TUART F. D ELERY , Principal Deputy Assista nt Attorney General, B RYANT G. S NEE , Acting Director, and S TEVEN J. G ILLINGHAM , Assistant Director.

______________________BURROUGHS v. ARMY 2

Before R ADER , Chief Judge, L INN , and T ARANTO , Circuit Judges.

P ER C URIAM

. M ilo Burroughs petitions for review of a final decision of the Merit Systems Protection Board that dismissed his claims under the Uni formed Services Employment and Reemployment Rights Act, the Veterans Employment Opportunities Act, and the Whistleblower Protection Act. Because the Board’s decision is in accordan ce with the law and supported by substantial evidence, we affirm the dismissal.

B ACKGROUND Mr. Burroughs, a decorated military veteran, applied for the position of Lead Aerospace Engineer at the Army Depot in Corpus Christi, Texas, in 2004. He applied f or the same position in two ways: he responded both to a general public announcement of the job opening and to an internal government announcement directed to a limited

group, including people like Mr. Burroughs who were “reinstatement eligible

. ” J.A. 112 . After considering his application, the Army decided not to hire him to fill the position. J.A. 115.
Mr. Burroughs filed a complaint with the Equal E mployment Opportunity Commission alleging that the Army had discriminated against him based on his age (76 at the time). An administrative judge found no age di scrimination

, and the Commission’s rejection of his claim became final on August 29, 2006.
On September 7, 2006, Mr. Burroughs filed an action with the Merit Systems Protection Board under the Unif ormed Services Employment and Reemployment Rights Act (USERRA) , contending that the Army had discriminated against him based on his prior military service. A Board administrative judge held an evide ntiary hearing by videoconference

, receiving testimonyBURROUGHS v. ARMY 3

from Mr. Burroughs and all three members of the Army committee that screen ed the job applicants. In December 2006, the administrative judge denied Mr. Burroughs ’s claim. Burroughs v. Dep’t of Army , No. DA

- 3443

- 06

- 0648

- I- 1 (M.S.P.B. De c. 26, 2006). The administrative judge recited in detail the explanations given by each committee member for his or her assessment of Mr. Burroughs’ s qualifications for the position and concluded that there was no evidence that their accounts “do not accu rately reflect the panel members ’ assessment of the appellant’ s qualifications for the subject vacancy.” Id. at 7. The administrative judge concluded that Mr. Burroughs “failed to show that it is more likely true than not that, because of his service in the uniformed services, the agency did not refer him for an interview for the position of Lead Aerospace Engineer.” Id. Accordingly, the a dministrative judge found no violation of USERRA. When the full Board denied Mr. Burroughs ’s petition for r eview,
t he administrative judge’ s initial decision became the final decision of the Board. Burroughs v. Dep’t of Army

, 106 M.S.P.R. 248 (2007).
Mr. Burroughs appealed the Board’s decision to this court, which, in November 2007, affirmed the denial of his claim. Burroughs v. Dep’ t of Army , 254 F. App’x 814 (Fed. Cir. 2007). “Because there [was] nothing in the record to suggest anti

- veteran animus on the part of the screening committee in particular, and the agency as a whole

— other than the fact that Mr. Burroug hs was not referred to the selection committee and ultimately selected,” this court affirmed the Board’s finding that Mr. Burroughs failed to prove a violation of USERRA. Id . at 817. Mr. Burroughs filed a petition for writ of certiorari, which the Suprem e Court denied. 552 U.S. 1280 (2008).
In 2012, Mr. Burroughs initiated the present action with the Board. He alleged, again, that th e agency viola ted the USERRA by not selecting him in 2004 to fill the position of Lead Aerospace Engineer at the Corpus Chri s-BURROUGHS v. ARMY 4

ti, Texas, Army Depot. He also pursued two other claims: (1) that the selection process effectively denied him the benefit of the veterans’ preference to which he was ent itled under the Veterans Employment Opportunities Act ( VEOA), and (2) that the agency retaliated against him in violation of the Whistleblower Protection Act (WPA). On January 30, 2013, the administrative judge issued an Order, informing Mr. Burroughs that his previous Board appeal appeared to bar his USERRA claim under the doctrine of claim preclusion and providing him the oppo rtunity to show why the claim should not be dismissed on that basis. J.A. 57

- 58. On March 1, 2013, the admini strative judge issued two more Orders

— one each for his VEOA and WPA claims

— stating that “the Board might dismiss” each claim for lack of jurisdiction. J.A. 80, 88. The Orders “provide[d] necessary information concerning the jurisdiction issue[s] and steps [Mr. Burroughs] must take to show that the Board should not dismiss for lack of jurisdiction.” J.A. 88.
In April 2006

, after giving Mr. Burroughs the oppo rtunity to respond to each of the three Orders, the admi nistrative judge issued an initial decision denying Mr. Burroughs’s request for relief. Burroughs v. Dep’t of Army , No. DA

- 4324

- 13

- 0149 -I- 1 (M.S.P.B. Apr. 26, 2013). The administrative judge dismissed the USERRA claim as barred by the doctrine of claim preclusion, because the previous Board appeal and the USERRA claim both involved the very same job opening and applicant sele ction process

. The administrative judge dismissed the VEOA and WPA claims for lack of jurisdiction. Mr. Burroughs petitioned the Board for review of the initial decision

, and

, on September 16, 2013, the Board issued a final decision dismissing each of his claims on the same ground as the administrative judge. Burroughs , No. DA

4324

- 13

- 0149 -I- 1 (M.S.P.B. Sept. 16, 2013).BURROUGHS v. ARMY 5

Mr. Burroughs now appeals to this court. We have j urisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).

D ISCUSSION

This court must uphold a decision of the Board unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained wit hout procedures required by law, rule, or regulation having been followed; or (3) unsupported by subst antial ev idence.” 5 U.S.C. § 7703(c). Because we find none of tho se defects, we affirm the dismissal of Mr. Burroughs’s USERRA claim based on claim preclusion and his VEOA and WPA claims for lack of jurisdiction.
We first address Mr. Burroughs’s claim u nder USERRA that the Army, by not selecting him for the position of Lead Aerospace Engineer, discriminated against him because of his military service. The Board rejected the claim based on claim preclusion because Mr. Burroughs challenges the same applic ant selection pr ocess as was at issue in the previous Board appeal he initiated on September 7, 200 6

. It is not disputed that the Board may follow normal principles of claim preclusion. Under those principles, a new claim is barred by an earlier final ju dgment in an earlier proceeding if “(1) there is identity of parties (or their privies); (2) there has been an earlier final judgment on the merits of a claim; and (3) the second claim is based on the same set of transactional facts as the first.” Jet, In c. v. Sewage Aeration Sys. , 223 F.3d 1360, 1362 (Fed. Cir. 2000).
Mr. Burroughs does not dispute that his 2006 Board appeal meets the first two preconditions. He focuses only

on the third, arguing that claim preclusion is not appr opriate here because (1) his previous appeal “was in refe rence to” a different vacancy announcement number and (2) his previous appeal alleged a violation of 38 U.S.C. § 4311(a), while he now alleges a violation of 38 U.S.C.BURROUGHS v. ARMY 6

§ 4311(b). Both contentions are without merit. And because we affirm the Board’s finding that claim precl usion b ar s Mr. Burroughs’s USERRA claim, we also affirm the Board ’s decision not to grant Mr. Burroughs a seco nd hearing on the merits of that claim (the first hearing having occurred during his 2006 B oard appeal).
First, substantial evidence supports the Board’s fin ding that Mr. Burroughs’s current appeal involves the same set of transactional facts as his 2006 Board appeal, namely

, the Army’s decision not to hire him to fill the position of Lead Ae rospace Engineer at the Corpus Chri sti, Texas, Army Depot in 2004. Although Mr. Burroughs contends that his 2006 Board appeal and the present appeal involved different vacancy announcement nu mbers , he does not dispute that both involve the same open posit ion— for which he applied through both available
routes— and the s ame applicant selection process. Th e Board did not err in treating those concrete facts, not the formalities of announcement numbers, as the decisive ones in determining that both appeals inv olved the same set of transactional facts.
Second, although there is some dispute about whether
or not Mr. Burroughs properly presented an allegation of a violation of 38 U.S.C. § 4311(b) in his earlier Board appeal, h is claim now is barred regardless

. The crucial fact is that h e identifies no thing that prevented him from making that allegation in the first Board appeal. If the same transactional facts are involved, claim preclusion “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Brown v. Felsen , 442 U.S. 127, 131 (1979); see Levi Strauss & Co. v. Abercrombie & Fitch Trading Co. , 719 F.3d 1367, 1371 (Fed. Cir. 2013) (“Claim preclusion does not depend on an earlier court’ s resolution of a particular issue, but prevents a litigant, in certain circumstances, from pressing issues in a second suit thatBURROUGHS v. ARMY 7

it could and should have raised in earlier litigation even if it did not.”) ; Carson v. Dep’t of Energy , 398 F.3d 1369, 1375 (Fed. Cir. 2005) ( “[C]laim preclusion forecloses matters that, although never litigated or even raised, could have been advanced in an earlier suit.” ).
We turn next to Mr. Burroughs’s claims under the VEOA and the WPA. The Board dismissed both claims because it found that Mr. Burroughs had not met his burden to establish the Board’s jurisdiction over those claims

. See 5 C.F.R. § 1201.56(a)(2)(1). For his VEOA claim

— that the agency improperly credited his veterans’ preference —M r. Burroughs was required to seek an administrative remedy from the Secretary of Labor before appealing to the Board. See 5 U.S.C. § 3330a(d); see also 5 C.F.R. § 1208.23(a)(4). Because the Board found that Mr. Burroughs “ submitted no evidence or argument that he first sought relief from the Secretary of Labor in his VEOA claim,” it dismissed his VEOA claim for lack of jurisdiction. Burroughs , No. DA

- 4324

- 13

- 0149 -I- 1, slip op. at 2 (M.S.P.B. Sept. 16, 2013). Mr. Burroughs does not challenge this finding on appeal. We therefore affirm the Board’s dismissal.

We also affirm the Board’s dismissal of Mr. Bu rroughs’s claim under the WPA. Mr. Burroughs does not allege that he can bring his WPA claim directly to the Board. Instead, he relies on 5 U.S.C. § 1221(a), which creates an individual right of action to seek corrective relief from the Board with respect to certain prohibited personnel actions

— including the whistleblower reprisals described in 5 U.S.C. § 2302(b)(8). The WPA requires that, for those personnel actions not otherwise appealable to the Board, an individual must first seek corrective relief fr om the Office of Special Counsel. See 5 U.S.C. § 1214(a)(3). “This court has held that the Board has jurisdiction over an [individual right of action] appeal if the appellant has exhausted his administrative remedies before the [Office of Special Counsel ] and makes ‘non

-BURROUGHS v. ARMY 8

frivolous allegations’ that” there has been a violation of the WPA. Yunus v. Dep’t of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). Mr. Burroughs presented a letter from the Office of Special Counsel referring to a complaint i n which he alleged that “the agency’s decision not to hire” him violated the WPA, see J .A. 114, but, as the Board found, the letter does not state what open position was at issue in his complaint or what protected disclosures he allegedly made. Indeed, nothing in the letter demonstrates that Mr. Burroughs’s complaint with the Office of Special Counsel involved the selection pr ocess for the position of Lead Aerospace Engineer at the Corpus Christi, Texas, Army Depot in 2004, as o pposed to one of the numerous other applicant selection processes he has challenged

. See Burroughs v. Dep’t of Army , 524 F. App’x. 611 (Fed. Cir. 2013) (MSPB No. 2012

- 3195); Bu rroughs v. Merit Sys. Prot. Bd. , 417 F. App’x. 964 (Fed. Cir. 2011) (MSPB No. 2 010

- 3180); Burroughs v. Merit Sys. Prot. Bd. , 426 F. App’x. 897 (Fed. Cir. 2011) (MSPB No. 2011

- 3021); Burroughs v. Dep’t of Army , 428 F. App’x. 998 (Fed. Cir. 2011) (MSPB No. 2011

- 3187); Burroughs v. Dep’t of Army , 445 F. App’x. 347 (Fed. Cir. 2011) (MSP B no. 2011

- 3118); Burroughs v. Dep’t of Army , 446 F. App’x. 278 (Fed. Cir. 2011) (case no. 2011

- 3141); Burroughs v. Dep’t of Army , 446 F. App’x. 293 (Fed. Cir. 2011) (MSPB no. 2011

- 3119) . Thus, substantial evidence supports the Board’s finding that Mr. Bu rroughs did not exhaust his administrat ive remedies . A ccordingly, we affirm its dismissal of his WPA claim for lack of jurisdiction.

C ONCLUSION For the foregoing reasons, we affirm the decision of the Board.

No costs.

AFFIRMED