Case: 19-2217    Document: 41     Page: 1   Filed: 05/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                ANDREW SEARCY, JR.,
                     Petitioner

                             v.

         DEPARTMENT OF AGRICULTURE,
                    Respondent
              ______________________

                        2019-2217
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-4324-17-0226-I-1.
                 ______________________

                  Decided: May 11, 2020
                  ______________________

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

     MARGARET JANTZEN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
 KIRSCHMAN, JR.
                   ______________________
Case: 19-2217     Document: 41      Page: 2   Filed: 05/11/2020




 2                     SEARCY   v. DEPARTMENT OF AGRICULTURE



     Before O’MALLEY, BRYSON, and CHEN, Circuit Judges.
 PER CURIAM.
      Andrew Searcy, Jr. appeals from a decision of the Merit
 Systems Protection Board (“Board”) dismissing his appeal
 for lack of jurisdiction. See Searcy v. Dep’t of Agric., No.
 AT-4324-17-0226-I-1, 2017 MSPB LEXIS 1239 (M.S.P.B.
 Mar. 16, 2017) (“Decision on Appeal”). For the reasons dis-
 cussed below, we affirm.
                        I. BACKGROUND
     Searcy is a serial appellant before this court. We have,
 therefore, had several opportunities to recount the history
 of this case. Most of the details relevant here were thor-
 oughly described in Searcy v. Merit Sys. Prot. Bd., 740 F.
 App’x 988, 989–90 (Fed. Cir. 2018) (“Searcy IV”):
      This appeal is the latest in a series of appeals
      Searcy has filed relating to his departure from em-
      ployment 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 full-
      time 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 sat-
      isfy the debt he owed for the tuition payments. Id.
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 SEARCY   v. DEPARTMENT OF AGRICULTURE                     3



    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 subse-
    quently filed a complaint with the U.S. Equal Em-
    ployment Opportunity Commission (“EEOC”),
    which was dismissed as untimely. Id.
    In 2006, Searcy received notice from the Office of
    Personnel Management (“OPM”) that his applica-
    tion for deferred retirement was denied because his
    retirement contributions had been forfeited to pay
    his tuition debt. Id. at 119–20. Searcy filed a sec-
    ond EEO complaint in 2008, alleging that his re-
    tirement contributions “were forfeited due to forced
    termination on the basis of race.” Id. at 120. The
    EEOC administrative judge dismissed that com-
    plaint 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 Employ-
    ment 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 ap-
    peals. 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
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 4                     SEARCY   v. DEPARTMENT OF AGRICULTURE



     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 dis-
     missed 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 separa-
     tion 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 agree-
     ment to pay his tuition. Id. An administrative
     judge (“AJ”) dismissed Searcy’s claims as “barred
     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 pre-
     cluded 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)
     [“Searcy III”].
     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. Searcy v. Dep’t of
     Agric., No. AT-4324-12-0759-C-1, 2017 MSPB
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 SEARCY   v. DEPARTMENT OF AGRICULTURE                     5



    LEXIS 5383 (M.S.P.B. Dec. 26, 2017). Specifically,
    Searcy stated that he was seeking enforcement of
    the Board’s order in that case. Id. In the alterna-
    tive, Searcy moved for a “Corrected Judgement,”
    seeking to overturn the Board’s res judicata deci-
    sion. Id. at *3.
    On December 26, 2017, the AJ issued an initial de-
    cision 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 ap-
    plied.” 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 Judge-
    ment,” the AJ explained that she lacked the au-
    thority to set aside the Board’s previously entered
    final decision, which was affirmed by this
    court. Id. Accordingly, the AJ dismissed 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 deci-
    sion of the Board.
 Searcy appealed and we affirmed the Board. Id. at 992.
     Meanwhile, Searcy requested that Department of La-
 bor, Veteran Employment & Training Service (“DOL-
 VETS”) and OSC reopen his claims. On June 13, 2016,
 DOL-VETS sent Searcy a letter informing him that it was
 declining to do so. Decision on Appeal, 2017 MSPB LEXIS
 1239, at *7. On October 14, 2016, OSC informed Searcy
 that it was declining to reopen his USERRA claim. Id. at
 *7–8.
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 6                    SEARCY   v. DEPARTMENT OF AGRICULTURE



     On October 24, 2016, Searcy filed an appeal to the
 Board, again alleging that the agency had violated his
 rights under VEOA and USERRA. Id. at *1, 3. Searcy also
 alleged DOL-VETS and OSC improperly declined to reopen
 his claims in violation of VEOA. Id. at *3.
     The AJ issued an initial decision dismissing Searcy’s
 appeal for lack of jurisdiction. The AJ held, based on our
 decision in Searcy I, that Searcy’s claims against the
 agency are barred by the doctrine of res judicata. Id. at *6.
 The AJ further explained that Searcy had failed to estab-
 lish the Board’s jurisdiction over a VEOA claim against
 DOL-VETS or OSC. Id. at *7–10.
      Because Searcy withdrew his petition for Board review
 of the AJ’s initial decision, it became the Board’s final de-
 cision on August 5, 2019. Searcy appeals. We have juris-
 diction under 28 U.S.C. § 1295(a)(9).
                       II. DISCUSSION
      We must affirm the Board’s decision unless it is:
 “(1) arbitrary, capricious, an abuse of discretion, or other-
 wise not in accordance with law; (2) obtained without pro-
 cedures 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 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 re-
 view de novo. Id.
                A. Res Judicata Bars Searcy’s
                 Claims Against the Agency
     Res judicata bars parties from litigating claims that
 could have been raised in an earlier-resolved action. Car-
 son v. Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005).
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 SEARCY   v. DEPARTMENT OF AGRICULTURE                      7



 Specifically, res judicata bars a later claim when (1) the
 parties are identical or in privity to the parties in a first
 action, (2) there has been an earlier final judgment on the
 merits in the first action, and (3) the later claim is based
 on the same set of transactional facts as those litigated in
 the first action. Ammex, Inc. v. United States, 334 F.3d
 1052, 1055 (Fed. Cir. 2003).
      Searcy argues that res judicata does not apply to his
 latest claims because “5 U.S.C. § 3330a is distinct in pur-
 pose and scope from . . . 5 U.S.C. § 7701(a)(l).” Appellant’s
 Informal Br. ¶ 2. Section 3330a establishes a substantive
 cause of action under the VEOA for preference eligible vet-
 erans and section 7701 sets out Board appellate proce-
 dures. Searcy’s argument seems to be contending that,
 although he previously litigated his substantive rights re-
 lated to his 1977 dismissal from the agency, his procedural
 rights were violated by the Board’s sua sponte application
 of the doctrine of res judicata in this case. His argument
 fails.
     The Board followed an appropriate procedure prior to
 applying res judicata to find that it did not have jurisdic-
 tion over Searcy’s case. Specifically, the Board informed
 Searcy of its suspicion that his claims may be barred and
 allowed Searcy to respond. Decision on Appeal, 2017
 MSPB LEXIS 1239, at *2–3. This process was sufficient to
 protect Searcy’s process rights. See Cleveland Bd. of Educ.
 v. Loudermill, 470 U.S. 532, 546 (1985) (“The essential re-
 quirements of due process . . . are notice and an opportunity
 to respond.”). And, once the Board determined that it did
 not have jurisdiction to hear Searcy’s case, Searcy had no
 additional rights under 5 U.S.C. § 7701(a)(1), which applies
 only in cases where the Board has jurisdiction.
     Searcy’s attempt, moreover, to distinguish this action
 from his earlier cases fails. Here, he once again raises the
 same set of facts as in his four earlier appeals and brings
 the same substantive claims against the same party. See
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 8                     SEARCY   v. DEPARTMENT OF AGRICULTURE



 Ammex, Inc., 334 F.3d at 1055. Accordingly, we, once
 again, hold that Searcy’s claims against the agency are
 barred by res judicata.
          B. Searcy Fails to Establish Jurisdiction
             Over a Claim Against DOL-VETS
                   and OSC under VEOA
    To establish the Board jurisdiction over a VEOA claim,
 Searcy must:
     (1) show that he exhausted his remedies with the
     Department of Labor and (2) make nonfrivolous al-
     legations that (i) he is preference eligible within the
     meaning of the VEOA, (ii) the action(s) at issue
     took place on or after the October 30, 1998 enact-
     ment date of the VEOA, and (iii) the agency vio-
     lated his rights under a statute or regulation
     relating to veteran’s preference.
 Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319
 (Fed. Cir. 2012) (brackets omitted).
     The Board held that Searcy’s claims could not meet
 these requirements for three reasons: (1) Searcy presented
 no authority to support the proposition that declining to re-
 open an investigation is actionable under VEOA, (2) VEOA
 contemplates investigation of employing agencies not the
 investigatory body itself, and (3) Searcy’s allegations relate
 not to DOL-VETS or OSC violating his rights under a stat-
 ute or regulation relating to veterans’ preference, but to the
 investigatory agency’s case processing. Decision on Appeal,
 2017 MSPB LEXIS 1239, at *9. Searcy does not appear to
 challenge the Board’s conclusions. See Appellant’s Inf. Br.
 at 15 (“The Board is correct that appellant never intended
 to state a VEOA claim as a result of having exhausted his
 remedies . . . .”). For completeness, however, we agree with
 the Board that Searcy indisputably fails to make any non-
 frivolous allegation that DOL-VETS or OSC violated his
 rights under a statute or regulation relating to veteran’s
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 SEARCY   v. DEPARTMENT OF AGRICULTURE                     9



 preference by declining to reopen and investigate his com-
 plaint of his 1977 separation from the agency. We thus af-
 firm the Board’s holding that Searcy failed to establish the
 Board’s jurisdiction over a VEOA claim against DOL-VETS
 and OSC.
                      III. CONCLUSION
     We have considered Searcy’s remaining arguments,
 but find them unpersuasive. We affirm the Board’s dismis-
 sal of Searcy’s appeal for lack of jurisdiction. 1
                        AFFIRMED
                           COSTS
     No costs.




    1     On December 10, 2019, Searcy filed with this court
 a “Motion for Fraud Based Summary Judgment,” ECF No.
 30. The motion requests summary judgment pursuant to
 Federal Rule of Civil Procedure 56 or relief from judgment
 pursuant to Rule 60(b)(3). On January 16, 2020, Searcy
 filed a “Motion for Leave to Correct or Modify the Record,”
 ECF No. 31, which argues that the government’s failure to
 respond to his December 10th motion indicates non-oppo-
 sition and entitles him to the requested relief. The Federal
 Rules of Civil Procedure are not an appropriate basis for
 relief requested for the first time on appeal. Accordingly,
 we deny Searcy’s motions.
