NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MILO D. BURROUGHS,

Petitioner,

v.

DEPARTMENT OF THE ARMY,

Respondent.

______________________ 

2014-3008

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA4324130149-I-1.

______________________ 

Decided: March 10, 2014

______________________ 

MILO D. BURROUGHS, of Yelm, Washington, pro se. 

NATHANAEL B. YALE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

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

on the brief were STUART F. DELERY, Principal Deputy 

Assistant Attorney General, BRYANT G. SNEE, Acting 

Director, and STEVEN J. GILLINGHAM, Assistant Director.

______________________ 
2 BURROUGHS v. ARMY

Before RADER, Chief Judge, LINN, and TARANTO, Circuit 

Judges.

PER CURIAM. 

Milo Burroughs petitions for review of a final decision 

of the Merit Systems Protection Board that dismissed his 

claims under the Uniformed Services Employment and 

Reemployment Rights Act, the Veterans Employment 

Opportunities Act, and the Whistleblower Protection Act. 

Because the Board’s decision is in accordance with the law 

and supported by substantial evidence, we affirm the 

dismissal. 

BACKGROUND

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 for 

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 Employment Opportunity Commission alleging that the 

Army had discriminated against him based on his age (76 

at the time). An administrative judge found no age discrimination, 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 

Uniformed 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 evidentiary hearing by videoconference, receiving testimony 
BURROUGHS v. ARMY 3

from Mr. Burroughs and all three members of the Army 

committee that screened 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. Dec. 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 accurately 

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 administrative judge found no violation of USERRA. When 

the full Board denied Mr. Burroughs’s petition for review, 

the 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. Burroughs 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 

Supreme Court denied. 552 U.S. 1280 (2008). 

In 2012, Mr. Burroughs initiated the present action 

with the Board. He alleged, again, that the agency violated the USERRA by not selecting him in 2004 to fill the 

position of Lead Aerospace Engineer at the Corpus Chris-
4 BURROUGHS v. ARMY

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 entitled 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 opportunity to show why the claim should not be dismissed on 

that basis. J.A. 57-58. On March 1, 2013, the administrative 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 opportunity to respond to each of the three Orders, the administrative 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 selection 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. DA4324-13-0149-I-1 (M.S.P.B. Sept. 16, 2013). 
BURROUGHS v. ARMY 5

Mr. Burroughs now appeals to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. 

§ 7703(b)(1).

DISCUSSION

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 without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Because we find none of those 

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 under 

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 applicant selection process as was at issue in the previous Board appeal he 

initiated on September 7, 2006. 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 judgment 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, Inc. 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 appropriate here because (1) his previous appeal “was in reference 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. 
6 BURROUGHS v. ARMY

§ 4311(b). Both contentions are without merit. And

because we affirm the Board’s finding that claim preclusion bars Mr. Burroughs’s USERRA claim, we also affirm 

the Board’s decision not to grant Mr. Burroughs a second 

hearing on the merits of that claim (the first hearing 

having occurred during his 2006 Board appeal). 

First, substantial evidence supports the Board’s finding 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 Aerospace Engineer at the Corpus Christi, Texas, Army Depot in 2004. Although Mr. Burroughs 

contends that his 2006 Board appeal and the present 

appeal involved different vacancy announcement numbers, he does not dispute that both involve the same open 

position—for which he applied through both available 

routes—and the same applicant selection process. The 

Board did not err in treating those concrete facts, not the 

formalities of announcement numbers, as the decisive 

ones in determining that both appeals involved 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, his claim now is barred regardless. The crucial 

fact is that he identifies nothing 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 that 
BURROUGHS 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—Mr. 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. Burroughs’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 from 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-
8 BURROUGHS v. ARMY

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 in 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 process for the position of Lead Aerospace Engineer at the 

Corpus Christi, Texas, Army Depot in 2004, as opposed 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); Burroughs v. Merit Sys. Prot. Bd., 417 F. App’x. 964 (Fed. Cir. 

2011) (MSPB No. 2010-3180); 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) (MSPB 

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. Burroughs did not exhaust his 

administrative remedies. Accordingly, we affirm its 

dismissal of his WPA claim for lack of jurisdiction. 

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the Board. 

No costs. 

AFFIRMED