Note: This disposition is nonprecedential.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 Nos. CH-4324-15-0487-I-1, CH-4324-15-0390-I-1. 

______________________ 

Decided: November 3, 2016

______________________ 

STANLEY C. BRASCH, St. Louis, MO, pro se. 

LINDSEY SCHRECKENGOST, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before O’MALLEY, REYNA, and CHEN, Circuit Judges. 

PER CURIAM. 
2 BRASCH v. MSPB

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 dismissed his appeals under the Uniformed Services Employment and Reemployment Rights Act of 1994 

(“USERRA”) for lack of jurisdiction. We affirm. 

BACKGROUND

Mr. Brasch is a Computer Specialist with the Department of Transportation, Federal Aviation Administration’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 appeals of agency personnel actions with the Board, alleging 

that the Agency had violated USERRA. Specifically, Mr. 

Brasch alleged that the Agency had (1) denied him employment benefits, (2) discriminated against him for 

engaging in protected whistleblower activity, and 

(3) subjected him to harassment, retaliation, discrimination, and a hostile work environment. 

On April 14, 2015 and June 4, 2015, the Board Administrative Judge (“AJ”) issued orders on USERRA 

Jurisdiction and Notice of Proof Requirements. The 

orders described the legal requirements to establish 

jurisdiction in a USERRA appeal and explained that 

conclusory, vague, or unsupported allegations were insufficient 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, and 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 military status was at 

least a motivating factor in the Agency’s alleged actions 
BRASCH v. MSPB 3

against him. On February 26, 2015, the Board denied Mr. 

Brasch’s petition for review and affirmed the Initial 

Decisions. Mr. Brasch appeals these decisions; we have 

jurisdiction over Mr. Brasch’s appeals pursuant to 28 

U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). 

DISCUSSION

As stated in 5 U.S.C. § 7703(c), we must affirm a decision of the 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 particular 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 exercise 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 federal 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 . . . employment, reemployment, retention in employment, promotion, 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 investiga-
4 BRASCH v. MSPB

tion under this chapter, or (4) has exercised a right provided 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 services, (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 Board 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 protection afforded to any person under 

Chapter 43 of Title 38 of the U.S. Code, and (2) the petitioner’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. Conclusory, vague, or unsupported allegations 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 employment 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 of 
BRASCH 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) appeals. 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 documentation of his military service for the AJ to find that 

Mr. Brasch had been a member of the uniformed services 

and thus that the requirements of the first prong of 

§ 4311(a) were fulfilled. But prongs two and three of 

§ 4311(a) require Mr. Brasch to also show that the Agency 

denied him a benefit of employment, and that prior military 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 not 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 was 

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 actions.” 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 dismissing his 

§ 4311(a) claims for lack of jurisdiction.

We also find Mr. Brasch has failed to establish the 

Board’s jurisdiction over his reprisal-type § 4311(b)
6 BRASCH v. MSPB

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 conclusory. We agree that Mr. Brasch has failed to allege facts 

which, if proven, may establish that his USERRA activity 

was at least a motivating factor in the Agency’s actions. 

Because Mr. Brasch has not alleged an adequate causal 

link between the alleged Agency reprisal and Mr. Brasch’s 

multiple USERRA claims, we find that the Board properly 

affirmed the AJ’s Initial Decisions dismissing these

§ 4311(b) appeals for lack of jurisdiction.

CONCLUSION

We have considered Mr. Brasch’s remaining arguments and conclude that they are without merit. For the 

foregoing reasons, we affirm the Board’s decisions.

AFFIRMED