NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ANDREW SEARCY, JR.,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2018-1370

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-4324-12-0759-C-1.

______________________ 

Decided: July 10, 2018

______________________ 

ANDREW SEARCY, JR., Peachtree City, GA, pro se. 

 KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by KATHERINE MICHELLE 

SMITH. 

 ______________________ 

Before MOORE, O’MALLEY, and WALLACH, Circuit Judges.

PER CURIAM. 
2 SEARCY v. MSPB

Andrew Searcy, Jr. (“Searcy”) appeals from the final 

decision of the Merit Systems Protection Board (“the 

Board”) dismissing his “Petition for Enforcement and/or 

Motion for Corrected Judgement” for lack of jurisdiction. 

Searcy v. Dep’t of Agric., No. AT-4324-12-0759-C-1, 2017 

MSPB LEXIS 5383 (M.S.P.B. Dec. 26, 2017) (“Decision on 

Appeal”). For the reasons discussed below, we affirm. 

BACKGROUND 

This appeal is the latest in a series of appeals Searcy 

has filed relating to his departure from employment with 

the Department of Agriculture (“the agency”) in the 

1970s. Prior to his employment with the agency, Searcy 

served on active military duty for nearly three years. 

Searcy v. Merit Sys. Prot. Bd., 486 F. App’x 117, 119 (Fed. 

Cir. 2012) (“Searcy I”). Searcy subsequently enrolled fulltime in a post-graduate program and signed an agreement with the agency whereby it would pay his tuition 

and salary in exchange for his continued employment for 

a specified period or repayment of the training costs. Id. 

In 1977, Searcy left the training program without 

completing it and did not return to his position at the 

agency. Id. The agency thereafter terminated his employment for separation by abandonment and placed a 

lien on his retirement account to satisfy the debt he owed 

for the tuition payments. Id. 

Almost twenty years after he left his employment, 

Searcy sought Equal Employment Opportunity (“EEO”) 

counseling, alleging that the agency had discriminated 

against him based on race, and that he was coerced into 

resigning. Id. He subsequently filed a complaint with the 

U.S. Equal Employment Opportunity Commission 

(“EEOC”), which was dismissed as untimely. Id. 

In 2006, Searcy received notice from the Office of Personnel Management (“OPM”) that his application for 

deferred retirement was denied because his retirement 
SEARCY v. MSPB 3

contributions had been forfeited to pay his tuition debt. 

Id. at 119–20. Searcy filed a second EEO complaint in 

2008, alleging that his retirement contributions “were 

forfeited due to forced termination on the basis of race.” 

Id. at 120. The EEOC administrative judge dismissed 

that complaint as untimely. Id. 

In 2009, Searcy submitted a complaint to the U.S. 

Department of Labor (“DOL”), alleging that the agency 

violated the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA”) and the Veterans’ 

Reemployment Rights Act of 1940 (“VRRA”) by discriminating against him based on his status as a veteran. He 

also filed a complaint with the U.S. Office of Special 

Counsel (“OSC”) asserting the same claims. Both DOL 

and OSC denied his complaints. 

In 2010, Searcy filed an appeal with the Board, which 

the Board later docketed as two separate appeals. In one 

appeal, Searcy alleged that he was constructively terminated. The Board dismissed that appeal for lack of jurisdiction because it was untimely filed. Id. at 121. In the 

other appeal, Searcy asserted claims under USERRA, 

VRRA, and the Veterans Employment Opportunity Act of 

1998 (“VEOA”). Id. In 2011, the Board dismissed the 

USERRA and VRRA claims for failure to state a claim 

upon which relief could be granted and dismissed the 

VEOA claim for lack of jurisdiction. Id. Searcy appealed 

both Board decisions to this court, and we affirmed them 

in a single decision. Id. at 118–19. 

Undeterred, in 2012, Searcy filed another appeal with 

the Board, alleging that the agency violated his USERRA 

rights by terminating him for separation by abandonment 

and withdrawing funds from his retirement account. 

Searcy v. Dep’t of Agric., 557 F. App’x 975, 977 (Fed. Cir. 

2014) (“Searcy II”). He also alleged that the agency 

breached the agreement to pay his tuition. Id. An administrative judge (“AJ”) dismissed Searcy’s claims as “barred 
4 SEARCY v. MSPB

by res judicata based on the decision against him in his 

prior USERRA/VRRA appeal.” Id. The Board affirmed 

that decision in August 2013, agreeing with the AJ that 

res judicata precluded Searcy’s claims. Id. Searcy appealed that decision to this court, and we affirmed the 

Board’s dismissal. Id. at 978. 

Searcy subsequently filed a petition for a writ of mandamus, asking this court to order the Board to reopen and 

adjudicate his previously dismissed claims. We denied 

the petition, finding that Searcy had no “clear and indisputable” right to challenge the Board’s final decisions by 

way of mandamus. In re Searcy, 572 F. App’x 986 (Fed. 

Cir. 2014). 

In December 2017, Searcy filed what he captioned as 

a “Petition for Enforcement and/or Motion for Corrected 

Judgement” in connection with the Board’s August 2013 

decision. Decision on Appeal, 2017 MSPB LEXIS 5383, at 

*2. Specifically, Searcy stated that he was seeking enforcement of the Board’s order in that case. Id. In the 

alternative, Searcy moved for a “Corrected Judgement,” 

seeking to overturn the Board’s res judicata decision. Id. 

at *3.

On December 26, 2017, the AJ issued an initial decision dismissing Searcy’s petition and motion for lack of 

jurisdiction. Id. at *2–3. The AJ explained that the 

Board did not issue an order in his favor in its August 

2013 decision, “but instead issued a final order finding it 

lacked jurisdiction over the appeal because the doctrine of 

res judicata applied.” Id. at *2. Because the Board did 

not issue an order in Searcy’s favor, the AJ found that 

there was no order to enforce, and thus the Board lacked 

jurisdiction over the petition for enforcement. Id. at *3. 

As to Searcy’s motion for a “Corrected Judgement,” the AJ 

explained that she lacked the authority to set aside the 

Board’s previously entered final decision, which was 

affirmed by this court. Id. Accordingly, the AJ dismissed 
SEARCY v. MSPB 5

Searcy’s petition for enforcement and denied his motion 

for corrective judgment. Id. 

Because Searcy did not petition the Board to review 

the AJ’s initial decision, it became the final decision of the 

Board. Searcy timely appealed to this court, and we have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

Our jurisdiction to review Board decisions is limited. 

By statute, we must affirm the 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). 

The Board’s jurisdiction “is not plenary, but is limited 

to those matters over which it has been granted jurisdiction by law, rule or regulation.” Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Whether 

the Board has jurisdiction to adjudicate an appeal is a 

question of law, which we review de novo. Id. The petitioner bears the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. Fields v. Dep’t 

of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006).

We agree with the Board that it lacked jurisdiction 

over Searcy’s petition for enforcement. By statute, the 

Board has the authority to “order any Federal agency or 

employee to comply with any order or decision issued by 

the Board . . . and enforce compliance with any such 

order.” 5 U.S.C. § 1204(a)(2). Here, Searcy filed a petition for enforcement pursuant to § 1204(a)(2) in an attempt to overturn the Board’s August 2013 decision

dismissing his appeal on res judicata grounds. But appellants cannot use § 1204(a)(2) to overturn or otherwise 

challenge the merits of prior Board decisions. Instead, 

§ 1204(a)(2) gives the Board the authority to enforce 
6 SEARCY v. MSPB

agency compliance with its final decisions and orders. As 

the AJ explained, moreover, because the Board did not 

issue an order in Searcy’s favor, there is no order for it to 

enforce. Decision on Appeal, 2017 MSPB LEXIS 5383, at 

*2–3. Accordingly, the Board correctly determined that it 

lacked jurisdiction over Searcy’s petition for enforcement.

On appeal, Searcy cites McCarthy v. Merit Systems 

Protection Board, 809 F.3d 1365 (Fed. Cir. 2016), for the 

proposition that the Board was required to reopen its 

previous decisions. Pet’r Informal Br. 4. Searcy’s reliance 

on McCarthy is misplaced, however. In McCarthy, we 

held that we have jurisdiction to review a Board decision 

on a motion to reopen based on a change in law. 809 F.3d 

at 1373 (declining to address whether “we have jurisdiction to review decisions on motions to reopen that are 

premised on other grounds”). Here, Searcy never moved 

to reopen his prior appeals and never identified any 

intervening change in the law. Because there is no Board 

decision on reopening for this court to review, McCarthy is 

not applicable. 

Even if Searcy had filed a request for reopening with 

the Board, this case does not meet the requirements for 

reopening. The Board has the authority to reopen or 

reconsider a final decision on its own motion “to correct its 

own errors or to modify its judgment, decree, or order.” 

Golden v. U.S. Postal Serv., 60 M.S.P.R. 268, 272 (1994); 

see 5 U.S.C. § 7701(e)(1)(B). The Board’s authority to 

reopen an appeal “must be exercised within a ‘reasonable’ 

amount of time, which the Board has held to be measured 

in weeks rather than years.” Golden, 60 M.S.P.R. at 272. 

The Board has said reopening “may be appropriate where 

there is clear and material legal error resulting in a 

conflict between the holding in a decision and controlling 

precedent or statute.” Anthony v. Office of Pers. Mgmt., 

70 M.S.P.R. 214, 219 (1996). Reopening may also be 

appropriate “in the interests of justice, where the evidence 

is of such weight as to warrant a different outcome.” Id. 
SEARCY v. MSPB 7

The Board’s authority to reopen is discretionary and is 

generally reserved for “unusual or extraordinary circumstances.” Id. 

Here, Searcy has not identified any unusual or extraordinary circumstances that would warrant reopening 

or reconsidering any of the Board’s decisions in the prior 

appeals. Instead, he simply disagrees with the Board and

maintains that he should have “previously won on the 

merits.”1 Pet’r Informal Br. 3. We have already affirmed

the Board’s 2011 decision on his USERRA appeal (Searcy 

I) and the Board’s 2013 decision dismissing Searcy’s 

appeal of the same claims based on res judicata (Searcy 

II). We also rejected Searcy’s attempt to overturn the 

Board’s final decisions via a mandamus petition. The 

present appeal is yet another attempt to reverse the 

Board’s final decision on his USERRA appeal. That 

appeal has been fully litigated, and there is neither a final 

Board decision on reopening for this court to review nor 

any grounds for reopening.2 

1 Throughout his briefing on appeal, Searcy argues 

that USERRA “supersedes” the application of res judicata. Pet’r Informal Br. 4–5, 8–9. To the extent Searcy 

suggests that res judicata cannot apply to USERRA 

claims, that argument is without merit. See Kimbrough 

v. Dep’t of Defense, 287 F. App’x 861, 863 (Fed. Cir. 2008) 

(“[W]e agree with the Board that res judicata precluded 

Mr. Kimbrough from relitigating allegations of USERRA 

discrimination relating to his removal.”); Renville v. Dep’t 

of Health & Human Servs., 632 F. App’x 611, 613 (Fed. 

Cir. 2015) (“Mr. Renville’s claim under USERRA is also 

barred under the doctrine of res judicata.”). 

2 On June 7, 2018, Searcy filed what he captioned 

as a “Motion for a Finding of Willfulness,” which we 

construe as a response to this court’s Notice of Submission 

without Oral Argument. Mot. For a Finding of Willful-

 
8 SEARCY v. MSPB

CONCLUSION

For the foregoing reasons, and because we find 

Searcy’s remaining arguments are without merit, we 

affirm the Board’s final decision. 

AFFIRMED

 

ness, Searcy v. Merit Sys. Prot. Bd., No. 18-1370 (Fed. Cir. 

June 7, 2018), ECF No. 38. We have considered Searcy’s 

additional arguments therein and find them unpersuasive.