Note: This disposition is nonprecedential. 

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

______________________

STANLEY C. BRASCH

, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

______________________

2016

- 1923, 2015

- 1925

______________________ Petitions for review of the Merit Systems Protection Board in No s. CH

- 4324

- 15

- 0487 -I- 1, CH

- 4324

- 15

- 0390 -I- 1.

______________________

Decided: November 3, 2016

______________________

S TANLEY C. B RASCH , St. Louis, MO, pro se.

L INDSEY S CHRECKENGOST , Office of the General Cou nsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before O ’M ALLEY , R EYNA , and C HEN , Circuit Judges

. P ER C URIAM

.BRASCH v. MSPB 2

Stanley C. Brasch petitions for review of two final decisions of the Merit Systems Protection Board (“ the Board ”) (Nos. CH

- 4324

- 15

- 0487 -I- 1 and CH

- 4324

- 15

- 0390

- I-1 ). Mr. Brasch argues that the Board improperly di smissed his appeals under the Uniformed Services E mployment and Reemployment Rights Act of 1994 (“USERRA”) for lack of jurisdiction . We affirm

. B ACKGROUND Mr. Brasch is a Computer Specialist with the D epartment of Transportation, Federal Avia tion Admi nistration’s (“the Agency”) Air Traffic Organization Technology office in St. Louis, Missouri. On April 13, 2015 and June 2, 2015, Mr. Brasch filed two initial a ppeals of agency personnel action s with the Board

, alleging that the Agency had viola ted USERRA . Specifically, Mr. Brasch alleged that the Agency had (1) denied him e mployment benefits

, (2) discriminated against him for engaging in protected whistleblower activity, and (3) subjected him to harassment, retaliation, discrimin ation, and a hostile work environment.
On April 14, 2015 and June 4, 2015, the Board A dministrative Judge (“AJ”) issued orders on USERRA Jurisdiction and Notice of Proof Requirements. The order s described the legal requirements to establish jurisdiction in a USERRA app eal and explained that conclusory, vague, or unsupported allegations were insu fficient to meet this standard. In response, Mr. Brasch provided proof of his military service, listed his prior Board appeals alleging the Agency committed USERRA violations, a nd reiterated the Agency actions listed in his appeals

. On November 16, 2015 and November 19, 2015, the AJ dismissed both of Mr. Brasch’s appeals for lack of jurisdiction , stating that Mr. Brasch had failed to make a

non

- frivolous allegation that his milit ary status was at le ast a motivating factor in the A gency’s alleged actionsBRASCH v. MSPB 3

against him. On February 26, 2015, the Board denied Mr. Brasch’s petiti on for review and affirmed the I nitial D ecisions. Mr. Brasch appeals these decisions; we have jurisdiction over Mr. Brasch’s appeal s pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A)

. D ISCUSSION As stated in 5 U.S.C. § 7703(c), we must affirm a dec ision of th e Board unless we find it to be: (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. Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995). Whether the Board has jurisdiction to adjudicate a pa rticular appeal is a question of law that this court reviews de novo. Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998). The petitioner bears the burden to show that the Board may e xercise jurisdiction in a case. Prewitt v. Merit Sys. Prot. Bd. , 133 F.3d 885, 886 (Fed. Cir. 1998).
The Board has jurisdiction over claims made by fede ral employees subject to the rights and protections of USERRA. 38 U.S.C. §§ 4304(1) , 4324(b); 5 C.F.R. § 1208.2(a). Mr. Brasch alleges the Agency committed USERRA violations that fall under both §§ 4311(a) and (b). Under § 4311(a), USERRA provides specific rights to covered employees who have been “denied . . . emplo yment, reemployment, retention in empl oyment, prom otion, or any benefit of employment” due to their military service. 38 U.S.C. § 4311(a); 5 C.F.R § 1208.2(a). In § 4311(b), USERRA prohibits employment discrimination against any person who “(1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investig a-BRASCH v. MSPB 4

tion under this chapter, or (4) has exercised a right pr ovided for in this chapter.” 38 U.S.C. § 4311(b).

To establish that the Board has jurisdiction over an alleged USERRA violation under § 4311(a), a petitioner must make non

- frivolous allegations that (1) he or she was a member of the uniformed service s, (2) the agency denied initial or continued employment or a benefit of employment, and (3) 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)

. To establish that the Bo ard has jurisdiction over the reprisal

- type USERRA violation under § 4311(b), a petition must make

non

- frivolous allegations that (1) the petitioner took action to enforce a protec tion afforded to any person under C hapter 43 of Title 38 of the U.S. Code, a nd (2) the pet itioner’ s action was a “substantial or motivating factor” in the agency discrimination or retaliation. Id. Under either cause of action, the Board has jurisdiction over the appeal only if the petitioner alleges facts that , if proven, would establish a violation of USERRA. See id. Concl usory, vague, or unsupported allegation s are not sufficient to meet this standard.
Between his two appeals, Mr. Brasch alleges the Agency committed nine separate § 4311(a) USERRA violations by : (1) denying five requests to speak with management in April and May 2015 concerning emplo yment issues; (2) denying his badge access to the St. Louis Tower, which provided him computer support; (3) failing to respond to his January 2015 annual leave restoration request ; (4) failing to speedily process his fiscal year 2014 local travel; (5) denying his request to have his hard drive restored after it was infected by a computer virus; (6) denying him computer administrative access rights, in violation of Agency policies; (7) denying his request to attend the Agency’s Program for Emerging Leaders; (8) denying his request for administrative leave to assist the U.S. Department of Defense at a U.S. Chamber ofBRASCH v. MSPB 5

Commerce Foundation, Hiring Our Heroes event; and (9) requiring that

, in the future, he would have to submit a daily activity report.

Mr. Brasch has failed to establish that the Board has jurisdiction over his § 4311(a) appeal s

. Mr. Brasch’s allegations under § 4311(a) are all of a similar type

— he alleges that the Agency denied him certain benefits provided to non

- military Agency personnel because of his military service. Mr. Brasch submitted sufficient doc umentation of his military service for the AJ to find that Mr. Brasch had been a member of the uniformed services and thus that th e requirements of the first prong of § 4311(a) were fulfilled. But p rongs two and three of § 4311(a) require Mr. Brasch to also show that the Agency denied him a benefit of employment, and that prior mil itary service was a “substantial or motivating factor” in the Agency’s denial

. While it is not clear whether the Board determined in its decision that the benefits Mr. Brasch claimed were , in fact, benefits of employment, it is clear that Mr. Brasch has no t provided any factual basis to link the Agency’s denial of the alleged benefits to his prior military service

. The essence of a meritorious § 4311(a) USERRA claim is that a covered individual wa s denied a benefit because he or she served in the military.
We agree with the Board’s determination that Mr. Brasch has “failed to allege facts, which, if proven, could establish that his military status or his USERRA activity was at least a motivating factor in the cited agency a ctions.” Brasch v. Dept. of Transp

., CH

- 4324

- 15

- 0390 -I-1, Final Order at 4 (M.S.P.B. Feb. 26, 2016). Because Mr. Brasch failed to make non

- frivolous allegations that the Agency denied him benefits based on his prior military service , we affirm the Board’s decisions dism issing his § 4311(a) cl aims for lack of jurisdiction.

We also find Mr. Brasch has failed to establish the Board’s jurisdiction over his reprisal

- type § 4311(b)BRASCH v. MSPB 6

claims . Mr. Brasch alleges that the Agency violated § 4311(b) by retaliating against him for raising multiple USERRA claims to the Board

. As with his § 4311(a) claims, Mr. Brasch’s § 4311(b) claims are wholly conclus ory

. We agree that Mr. Bra sch has failed to allege facts which, if proven

, may establish that his USERRA activity was at least a motivating factor in the Agency’s ac tions. Because Mr. Brasch has not alleged an adequate causal link between the alleged Agency reprisal and Mr. Brasch’s multiple USERRA claim s, we find that the Board properly affirmed the AJ’s Initial D ecisions dismissing the se § 4311(b) appeal s for lack of jurisdiction.

C ONCLUSION We have considered Mr. Brasch’s remaining arg uments and conclude that they are without merit. For the foregoing reasons, we affirm the Board’s decisions.

AFFIRM ED