                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3269


                                 MATHEW B. TULLY,

                                                            Petitioner,


                                          v.


                            DEPARTMENT OF JUSTICE,

                                                            Respondent.



      Mathew B. Tully, of Niskayuna, New York, pro se.

       Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Martin F. Hockey, Jr., Assistant Director. Of counsel was Meghann Proie, Bureau
of Prisons, United States Department of Justice, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit


                                       2007-3269


                                 MATHEW B. TULLY,

                                                             Petitioner,


                                           v.


                             DEPARTMENT OF JUSTICE,

                                                             Respondent.




                            DECIDED: November 8, 2007




Before RADER, SCHALL, and MOORE, Circuit Judges.

PER CURIAM.

                                      DECISION

       Mathew B. Tully petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) ordering the Department of Justice (“Agency”) to install Mr.

Tully in the position of a Correctional Officer and to award him back pay. Tully v. Dep’t

of Justice, NY-3443-03-0191-I-6 (M.S.P.B. Apr. 25, 2007).       We dismiss for lack of

jurisdiction.
                                          DISCUSSION

                                                 I.

       Beginning in 2000, Mr. Tully, a Correctional Officer in New York City,

commenced filing with the Board various appeals under the Uniformed Services

Employment and Reemployment Rights Act (“USERRA”). In these appeals, Mr. Tully

alleged discrimination on the basis of his status as a uniformed service member. On

July 10, 2000, Mr. Tully and the Agency settled the pending disputes, with Mr. Tully

agreeing to resign his position. On August 29, 2000, Mr. Tully filed two applications for

a Correctional Officer position in Brooklyn, New York, which the Agency failed to

process.    Eventually, Mr. Tully lodged an appeal with the Board, claiming that the

Agency’s failure to process his applications was in retaliation for his prior USERRA

appeals.

       Ultimately, a Board administrative judge (“AJ”) rendered an initial decision

holding that the Agency had retaliated against Mr. Tully in violation of USERRA. Tully v.

Dep’t of Justice, NY-3443-03-0191-I-6 (M.S.P.B. Mar. 21, 2007). The AJ ordered the

Agency to appoint Mr. Tully to the position of Correctional Officer, effective August 22,

2002; to compute the amount of back pay to which he was entitled; and to pay him that

amount. In due course, on April 25, 2007, the AJ’s initial decision became the final

decision of the board. As noted, it is from that decision that Mr. Tully appeals.

                                                 II.

       On appeal, Mr. Tully essentially contends that the Board committed numerous

legal errors in its failure to award him certain benefits to which he contends he is entitled

under 38 U.S.C. § 4324(c)(3). Specifically, Mr. Tully apparently believes that he is




2007-3269                                    2
entitled to the following additional damages: (1) performance evaluation records from

2002 to the present; (2) lost overtime pay that would have been acquired from 2002 to

the present; (3) interest on the Board’s monetary awards 1 ; (4) military, sick, and annual

leave that would have been acquired from 2002 to the present; (5) “allowances and

differentials” that would have been acquired from 2002 to the present; (6) award of

federal law enforcement credentials that would have been earned from 2002 to the

present; and (7) compensation in line with various settlements received by other Agency

employees at the Brooklyn facility where Mr. Tully applied for a position. Additionally,

Mr. Tully asserts various abuses of discretion on the part of the Board in failing to award

certain benefits allegedly conferred by federal statutes. In that regard, he requests that

we provide remedies “which this Court has never explicatively ordered to victims of

USERRA discrimination but should,” including, inter alia, issuing injunctions precluding

future violations and requiring notification to all employees of their right to be free from

unlawful discrimination.

         The Agency counters that we lack jurisdiction over Mr. Tully’s appeal.

Specifically, the Agency asserts that we do not possess jurisdiction to enforce non-

adverse decisions of the Board, thereby precluding our deciding the present case since

Mr. Tully prevailed before the Board. Additionally, the Agency contends that Mr. Tully’s

case is not ripe for review, thereby removing his appeal from the ambit of jurisdiction

available to federal courts under Article III of the United States Constitution.       The

Agency points out that Mr. Tully currently is petitioning the Board for enforcement of its

final decision in this case and that the issues he is raising before us may ultimately be

         1
              In fact, that the Board did order back pay with interest. See Tully, slip op.
at 24.


2007-3269                                    3
addressed when the Board determines whether the Agency has complied with the

Board’s final decision.

                                                III.

       We agree with the government that we lack jurisdiction in this matter.        In a

USERRA case, a party “adversely affected or aggrieved by a final order or decision of

the Merit Systems Protection Board . . . may petition the United States Court of Appeals

for the Federal Circuit to review the final order or decision.” 38 U.S.C. § 4324(d)(1). In

accordance with the doctrine of ripeness derived from Article III of the United States

Constitution, we conclude that we lack jurisdiction inasmuch as the Board may

ultimately provide the relief Mr. Tully seeks, thereby obviating the necessity of our

reviewing the Board’s final decision.

       In Abbott Laboratories v. Gardener, 387 U.S. 136 (1967), overruled on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court articulated the

standard applied to determining whether agency decisions are ripe for appellate review:

the ripeness doctrine seeks “to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative

policies, and also to protect the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way by the

challenging parties,” id. at 148–49.

       Mr. Tully has failed to demonstrate that he has suffered the injuries he alleges.

Aside from the fact the he prevailed before the Board—so that it cannot be said that the

Board’s decision was adverse to him—Mr. Tully may petition the Board, which he is

doing. The Board’s order provided that Mr. Tully would receive “the appropriate amount




2007-3269                                   4
of back pay, with interest and [with benefits adjusted to reflect the] appropriate credits

and deductions in accordance with Office of Personnel Management regulations.” In

adjudicating Mr. Tully’s petition for enforcement, the Board will determine his precise

level of entitlement to back pay, as well as any other benefits to which he may be

entitled. In short, Mr. Tully has access to, and is pursuing, judicial recourse, as a result

of which he may obtain the relief he desires. We lack jurisdiction to decide the issue of

entitlement to such benefits prior to the Board’s deciding that issue. We therefore must

dismiss his appeal for lack of jurisdiction.

       No costs.




2007-3269                                      5
