                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                       05-3195

                                ROBERT A. KURSAR,

                                                Petitioner,

                                           v.

                       DEPARTMENT OF TRANSPORTATION,

                                                Respondent.

                           ___________________________

                           DECIDED: December 12, 2005
                           ___________________________


Before RADER, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.

                                      DECISION

      Robert A. Kursar appeals from a decision of the Merit Systems Protection Board,

No. SE-315H-03-0187-I-2, holding that his termination from the Transportation Security

Administration (“TSA”) did not violate the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”). In his petition for review to the full

Board, Mr. Kursar proffered certain evidence that he contended was new and material.

The Board summarily denied his petition. Because the record is insufficient to support a
conclusion that the proffered evidence was not new and material, we vacate the Board’s

order and remand the case to the Board for further consideration of that issue.

                                     BACKGROUND

       On April 7, 2002, Mr. Kursar was selected for an excepted service position with

the TSA as a Federal Air Marshal. His appointment was subject to a one-year trial

period. Mr. Kursar reported to his assigned field office in Seattle on April 22, 2002. On

April 23, Mr. Kursar’s supervisor, Special Agent In Charge William Blake, Jr., informed

Mr. Kursar that there were some questions regarding Mr. Kursar’s employment

application, and that he would be placed on administrative suspension pending further

background investigation. On April 25, Mr. Blake gave Mr. Kursar written notice of his

intention to terminate Mr. Kursar because of false or incorrect information on his

employment application.     Mr. Kursar submitted a written response to the proposed

termination on April 29.    After considering that response, Mr. Blake terminated Mr.

Kursar on May 3, 2002.

       The present dispute stems from a conversation that Mr. Blake had with Major

Wellington Y. Hom on April 22, 2002, the day before Mr. Blake put Mr. Kursar on

administrative suspension. Major Hom served with Mr. Kursar in an Army Reserve unit

in 1994 and 1995. On April 22, Major Hom was in the Seattle field office for a meeting

with Mr. Blake. While he was there, Major Hom recognized Mr. Kursar and told Mr.

Blake that Mr. Kursar had had employment problems in the past. The contents of that

conversation are critical to the present dispute.

       Mr. Kursar contends that Major Hom had a grudge against him based, in part, on

a USERRA claim that Mr. Kursar had filed against the Whatcom County Sheriff’s office




05-3195                                      2
in 1996, a claim that apparently led to reprimands for some of Major Hom’s friends who

worked at the sheriff’s office. In his appeal to the MSPB, Mr. Kursar asserted that Major

Hom told Mr. Blake that Mr. Kursar would not hesitate to file similar complaints against

law enforcement agencies such as the TSA. Although it is unclear from the record how

Mr. Kursar reached that conclusion as to what Major Hom and Mr. Blake discussed in

their April 22 conversation, he contended that in light of that conversation, his

termination must have been based on his 1996 USERRA claim and/or his status as an

Army reservist.

       Mr. Blake and Major Hom presented a different version of their April 22

conversation. They claimed that the conversation focused on Mr. Kursar’s history of

lying on employment applications, and they further claimed that, as of April 22, neither

Mr. Blake nor Major Hom even knew about Mr. Kursar’s 1996 USERRA claim.

       Mr. Kursar appealed his termination to the MSPB in March of 2003.             The

administrative judge noted that because Mr. Kursar’s position was probationary, he was

not an “employee” within the meaning of 5 U.S.C. § 7511(a)(1) and therefore had no

right to appeal his termination. Based on that preliminary conclusion, the administrative

judge issued an order to show cause why the appeal should not be dismissed for lack of

jurisdiction. In response to that order, Mr. Kursar alleged that his termination violated

USERRA because it was motivated by his status as an Army reservist and/or his 1996

USERRA claim. Because Mr. Kursar was a probationary employee, the administrative

judge found that the Board had jurisdiction to hear Mr. Kursar’s USERRA claim, but did

not have jurisdiction to otherwise review the merits of his termination.




05-3195                                      3
      After a hearing held on March 2 and 3, 2004, the administrative judge issued an

Initial Decision in August 2004 denying Mr. Kursar’s request for relief under USERRA.

The administrative judge found that Mr. Blake’s and Major Hom’s version of the April 22

conversation was credible. In particular, the administrative judge concluded that there

was no evidence that Mr. Blake or Major Hom even knew about Mr. Kursar’s 1996

USERRA claim as of April 22, 2002. Thus, although the administrative judge found that

Mr. Blake based his decision to terminate Mr. Kursar on a “gut feeling” that was “entirely

[based] on the allegations contained in Major Hom’s declaration,” the administrative

judge concluded that there was no evidence supporting Mr. Kursar’s allegation that his

termination was motivated by his military status or his 1996 USERRA claim.

      In late May of 2004, nearly three months after the hearing, Mr. Kursar’s lawyer—

William B. Knowles—obtained a letter from Matthew Johnson, an investigator who

worked for the Ministry of the Attorney General in British Columbia. The letter was

apparently sent in response to a Freedom of Information Act request that Mr. Knowles

pursued after Major Hom’s deposition, in which Major Hom said that he had talked to

background investigators about Mr. Kursar. In July of 2004, Mr. Knowles was indicted

on unrelated matters. Although Mr. Knowles’s office had a copy of Mr. Johnson’s letter,

Mr. Kursar was not able to obtain a copy of the letter until September 29, 2004, through

newly hired counsel. On October 4, 2004, Mr. Johnson signed an affidavit swearing to

the contents of his earlier letter. According to the affidavit, Mr. Johnson conducted a

background check on Mr. Kursar in 2002, pursuant to an employment application that

Mr. Kursar submitted after his termination from the TSA. As part of that background

check, Mr. Johnson interviewed Major Hom.         According to Mr. Johnson’s affidavit,




05-3195                                     4
during that interview Major Hom talked about Mr. Kursar’s 1996 USERRA claim and

stated that he knew about Mr. Kursar’s 1996 USERRA claim because he knew the

individuals at the sheriff’s office who were involved in the claim.    According to Mr.

Johnson, Major Hom also said that he told Mr. Blake about Mr. Kursar’s 1996 USERRA

claim. When asked by Mr. Johnson why he told Mr. Blake about Mr. Kursar’s 1996

USERRA claim, Major Hom responded, in essence, that he thought it was important for

Mr. Blake to know that Mr. Kursar was a “troublemaker” who would not hesitate to make

reports against other law enforcement officers.

      Although Mr. Johnson’s letter was apparently sent in response to Mr. Knowles’s

Freedom of Information Act request, the record contains no evidence regarding how or

when that request reached Mr. Johnson. Based on Mr. Johnson’s affidavit, all that the

record shows is that Mr. Kursar’s first contact with Mr. Johnson (through Mr. Kursar’s

lawyer, Mr. Knowles) was in April 2004, and that Mr. Johnson was on vacation and

unreachable from February 2004 (just before Mr. Kursar’s hearing on March 2 and 3)

through mid-April 2004.

      Mr. Kursar filed a petition for review of the Initial Decision on October 27, 2004,

arguing that Mr. Johnson’s affidavit constituted new and material evidence. The Board

summarily rejected the petition, and Mr. Kursar appeals.

                                     DISCUSSION

      In his appeal, Mr. Kursar raises two issues. First, Mr. Kursar argues that he was

denied due process because he was terminated without an adequate opportunity to

respond to Major Hom’s allegations. However, because Mr. Kursar was completing a

probationary period in an excepted service position—a conclusion Mr. Kursar does not




05-3195                                    5
challenge—he has failed to show that he was denied procedural rights to which he was

entitled. Under 5 U.S.C. §§ 7511-13, for purposes of appealing a removal action, a

petitioner must be included in one of several possible categories in order to meet the

definition of “employee.” Mr. Kursar was employed by the TSA on a trial basis for less

than one month. Accordingly, he was not within the statutory definition of “employee” in

section 7511(a)(1), regardless of whether he was, as he asserts in his brief, a

preference eligible veteran. Because he was not an “employee” under section 7511, he

was not entitled to the protections of section 7513, which include the right to 30 days

written notice, an opportunity to respond, and the right to appeal an adverse decision to

the MSPB. See Horner v. Lucas, 832 F.2d 596, 597 (Fed. Cir. 1987) (holding that

petitioner was not entitled to the protections of 5 U.S.C. §§ 7511(a)(1) and 7513

because under section 7511(a)(1)(A) the temporary status of his position in the

competitive service prevented him from qualifying as an employee). And because of

Mr. Kursar’s status as a probationary employee, the Board correctly concluded that Mr.

Kursar had no right to appeal the merits of his termination to the MSPB.1

      The second issue raised by Mr. Kursar on appeal is whether the Board should

have granted his petition for review based on Mr. Johnson’s affidavit, which Mr. Kursar

contends is new and material evidence supporting his USERRA claim. To prevail on his

USERRA claim, Mr. Kursar bore the initial burden of showing that his military status or




      1
             As a probationary employee, Mr. Kursar lacked a property interest in his
position that entitled him to procedural protections under the Fifth Amendment’s Due
Process Clause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985);
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972); Silva v. Bieluch, 351 F.3d 1045, 1047
(11th Cir. 2003); Williams v. Seniff, 342 F.3d 774, 787 (7th Cir. 2003); Finley v.
Giacobbe, 79 F.3d 1285, 1297-98 (2d Cir. 1996).


05-3195                                    6
his past USERRA claim was “at least a motivating or substantial factor” in the agency’s

decision to terminate him. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014 (Fed.

Cir. 2001). By regulation, the Board will grant a petition for review when it finds that

“new and material evidence is available that, despite due diligence, was not available

when the record closed.” 5 C.F.R. § 1201.115(d)(1); see Wright v. U.S. Postal Serv.,

183 F.3d 1328, 1332 (Fed. Cir. 1999). New evidence is “material” if it is “of sufficient

weight to warrant an outcome different from that of the initial decision.” Bucci v. Dep’t of

Educ., 42 M.S.P.R. 47, 55 (1989).

       Although Mr. Kursar’s petition for review was based on Mr. Johnson’s affidavit,

neither the TSA in its response to the petition, nor the Board in its order denying the

petition, specifically addressed Mr. Johnson’s affidavit. Rather, the TSA simply argued

in its response, as it does in its brief in this court, that the initial decision boiled down to

a credibility determination—weighing the credibility of Major Hom and Mr. Blake against

the credibility of Mr. Kursar—and that Mr. Kursar’s “new” evidence merely challenges

the administrative judge’s credibility determination. That response is incomplete for two

reasons. First, while it may be true, as the agency argues, that new evidence regarding

witness credibility is rarely material, see, e.g., Bucci, 42 M.S.P.R. at 55, it is also true

that a decision resting entirely on a credibility determination might be affected by

evidence that was not presented to the administrative judge, but that directly

undermines the central credibility determination, Wright, 183 F.3d at 1332. Second, Mr.

Johnson’s affidavit does more than merely impeach Mr. Blake’s and Major Hom’s

credibility. Rather, it directly contradicts the critical factual determination on which the

Initial Decision hinged. The Initial Decision on Mr. Kursar’s USERRA claim hinged on




05-3195                                        7
the administrative judge’s conclusion that Major Hom and Mr. Blake did not discuss Mr.

Kursar’s 1996 USERRA claim during their April 22 conversation and that neither of them

even knew about Mr. Kursar’s past USERRA claim.              While that conclusion was

reasonable in light of the administrative record at the time of the hearing, Mr. Johnson’s

affidavit directly contradicts that critical conclusion based on a statement reportedly

made by Major Hom. Not only does Mr. Johnson’s affidavit suggest that Major Hom

and Mr. Blake knew about Mr. Kursar’s 1996 USERRA claim, but it further suggests that

the critical conversation between Major Hom and Mr. Blake focused, at least in part, on

Major Hom’s assertion that Mr. Kursar was unfit for a TSA position precisely because he

had filed a USERRA claim in the past. If that assertion was a motivating factor in Mr.

Blake’s “gut feeling” to terminate Mr. Kursar, then Mr. Kursar would likely have met his

initial burden of showing that his military service or his past USERRA claim was a

motivating or substantial factor in his termination, and the agency would have to show

that Mr. Kursar would have been terminated regardless of his 1996 USERRA claim and

his military status.       Sheehan, 240 F.3d at 1014.   Contrary to the agency’s vague

response to Mr. Kursar’s petition for review, Mr. Johnson’s affidavit was therefore at

least facially material.

       The full Board’s order dismissing Mr. Kursar’s petition for review did not refer to

the materiality of Mr. Johnson’s affidavit. Rather, the Board summarily concluded that

Mr. Kursar had presented “no new, previously unavailable, evidence.” Similarly, TSA’s

brief in this court asserts, without much elaboration, that Mr. Johnson’s affidavit was not

“new” evidence. The record, however, shows that Mr. Johnson’s first contact with Mr.

Kursar was in late April 2004, more than a month after Mr. Kursar’s hearing, and that




05-3195                                      8
Mr. Kursar did not obtain Mr. Johnson’s letter and his affidavit until after the

administrative judge’s decision in the case. If, despite due diligence, Mr. Kursar could

not have obtained the evidence before the record closed, Mr. Johnson’s affidavit would

appear to be “new.”

      Although we do not conclude here that Mr. Johnson’s affidavit was new or

material, we believe the record, in its current state, does not support a conclusion that

substantial evidence shows that the affidavit did not constitute “new and material”

evidence.   Further proceedings are necessary to ascertain whether Mr. Johnson’s

affidavit was new and material evidence and, if so, whether that evidence, if considered

by the administrative judge, would result in a different outcome in this case.       We

therefore vacate the Board’s order and remand this case to the Board for further

proceedings addressed to Mr. Kursar’s new and material evidence claim.




05-3195                                    9
