                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MILO D. BURROUGHS,                              DOCKET NUMBER
                  Appellant,                         DA-4324-12-0105-B-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: January 23, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Milo D. Burroughs, Yelm, Washington, pro se.

           Kenneth M. Muir, Esquire, Corpus Christi, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA). Generally, we grant petitions such as this one only


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
                                      BACKGROUND
¶2        In November 2011, the appellant filed an appeal claiming that the agency
     discriminated and retaliated against him in violation of USERRA when it failed to
     select him for a Lead Aerospace Engineer position. Burroughs v. Department of
     the Army, 120 M.S.P.R. 392, ¶¶ 2, 6-7 (2013). The administrative judge denied
     the appellant’s request for corrective action, finding that he failed to show by
     preponderant evidence that his uniformed service was a motivating factor in the
     nonselection. Id., ¶ 3. In an Opinion and Order dated December 5, 2013, the
     Board affirmed the administrative judge’s finding that he failed to establish his
     USERRA discrimination claim.        Id., ¶ 6.   The Board remanded the appeal,
     however, for consideration of the appellant’s USERRA retaliation claim, which it
     found the administrative judge did not address. Id., ¶¶ 7-8.
¶3        After affording the parties an opportunity to submit evidence and argument
     concerning the retaliation claim, Remand Appeal File (RAF), Tab 16, the
     administrative judge issued a remand initial decision based on the written record
                                                                                          3

     denying the appellant’s request for corrective action, RAF, Tab 18, Remand
     Initial Decision (RID). 2      Specifically, the administrative judge found that the
     appellant did not show that his protected activity was a substantial or motivating
     factor in the nonselection. RID at 3-4.
¶4           The appellant has filed a petition for review. Remand Petition for Review
     (RPFR) File, Tab 1. The agency has filed a response in opposition, RPFR File,
     Tab 3, to which the appellant has replied, RPFR File, Tab 4.
                        DISCUSSION OF ARGUMENTS ON REVIEW
¶5           On review, the appellant argues that he submitted an affidavit below that
     proved his USERRA retaliation claim and that, because the agency failed to
     submit any evidence to rebut his sworn assertions, the administrative judge erred
     in finding that he failed to prove his claim by preponderant evidence. RPFR File,
     Tab 1 at 2.
¶6           As the administrative judge properly set forth, if an appellant engages in
     one or more forms of protected activity set forth in 38 U.S.C. § 4311(b), an
     agency violates that section if the appellant’s protected activity is a substantial or
     motivating factor in the agency’s action, unless the agency can prove that it
     would have taken the action in the absence of the appellant’s protected activity.
     RID at 1-2; see Burroughs, 120 M.S.P.R. 392, ¶ 7. In his affidavit, the appellant
     restated the requirements to establish a USERRA retaliation claim as set forth by
     the administrative judge and repeatedly asserted that he had never been
     recognized as a “person” under the law.              RAF, Tab 13.       Contrary to his
     allegations, however, the appellant failed to provide any explanation or evidence
     to support a finding that the agency’s failure to select him for the Lead Aerospace
     Engineer position was a violation of section 4311(b). RID at 3; RAF, Tab 13.
     Under these circumstances, the administrative judge properly found that the
     appellant failed to meet his burden of showing that his protected activity was a

     2
         The appellant withdrew his initial request for a hearing. RAF, Tab 16.
                                                                                      4

     substantial or motivating factor in his nonselection. RID at 3-4. Consequently,
     the agency’s burden to show that it would not have selected the appellant for the
     position   notwithstanding    his   protected   activity   was   never   triggered.
     Burroughs, 120 M.S.P.R. 392, ¶ 7.
¶7         The appellant also argues that the administrative judge failed to address his
     whistleblower retaliation claim on remand. RPFR File, Tab 1 at 2-3. However,
     the Board noted in its Opinion and Order that any such claim was precluded in the
     present appeal because the appellant did not object to the administrative judge’s
     ruling that the only issue under consideration in the appeal was his USERRA
     claim. Burroughs, 120 M.S.P.R. 392, ¶ 9. Therefore, if the appellant wishes to
     pursue a claim of whistleblower retaliation concerning his nonselection—as
     opposed to a retaliation claim under USERRA, which is at issue in the present
     appeal—he may do so by filing a new appeal with the regional office. Id.
¶8         The appellant also appears to allege that the agency violated his veterans’
     preference rights when it failed to select him for the Lead Aerospace Engineer
     position. RPFR File, Tab 1 at 4. As the Board previously found, however, the
     only issue for consideration in the present appeal is the appellant’s USERRA
     claim. Burroughs, 120 M.S.P.R. 392, ¶ 9. Therefore, to the extent the appellant
     wishes to pursue a claim concerning a violation of his veterans’ preference rights
     in connection with this nonselection, he may do so by filing a new appeal with the
     regional office. See id.
¶9         Lastly, the appellant attaches alleged new evidence in an apparent effort to
     show that the agency’s failure to select him for the Lead Aerospace Engineer
     position was criminal. RPFR File, Tab 1 at 6-42. The alleged new evidence,
     however, is contained in the record below. MSPB Docket No. DA-4323-12-0105-
     I-1, Initial Appeal File, Tab 43. Accordingly, it is not new and we need not
     consider it. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
                                                                                    5

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
        You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                            United States Court of Appeals
                                for the Federal Circuit
                              717 Madison Place, N.W.
                               Washington, DC 20439

        The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
                                                                                6

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,   at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
