       NOTE: This disposition is nonprecedential.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 Liti-
gation 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 Em-
ployment Opportunity Commission alleging that the
Army had discriminated against him based on his age (76
at the time). An administrative judge found no age dis-
crimination, 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 eviden-
tiary 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 ad-
ministrative 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 violat-
ed 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 enti-
tled 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 oppor-
tunity to show why the claim should not be dismissed on
that basis. J.A. 57-58. On March 1, 2013, the adminis-
trative 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 oppor-
tunity to respond to each of the three Orders, the admin-
istrative 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 selec-
tion 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 ju-
risdiction 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 with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 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 pro-
cess 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 appro-
priate here because (1) his previous appeal “was in refer-
ence 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 preclu-
sion 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 find-
ing 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 Chris-
ti, Texas, Army Depot in 2004. Although Mr. Burroughs
contends that his 2006 Board appeal and the present
appeal involved different vacancy announcement num-
bers, 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. Bur-
roughs’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 pro-
cess 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); Bur-
roughs 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
