NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LEROY ALFORD,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2010-3112
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC3330090703-I-1.
__________________________
Decided: January 19, 2011
__________________________
LEROY ALFORD, Temple Hills, Maryland, pro se.
MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DONALD E. KINNER,
Assistant Director.
__________________________
ALFORD v. DEFENSE 2
Before RADER, Chief Judge, GAJARSA and PROST, Circuit
Judges.
PER CURIAM.
Petitioner Mr. Leroy Alford appeals from the final de-
cision of the Merit Systems Protection Board (“Board”)
dismissing his claim under the Veterans Employment
Opportunities Act of 1998 (“VEOA”) for failure to state a
claim upon which relief can be granted and dismissing his
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”) claim for lack of jurisdic-
tion. We affirm.
BACKGROUND
Mr. Alford began his civil service employment with
the Defense Intelligence Agency (“DIA” or “Agency”) on
June 26, 2006. At the same time, he was on terminal
leave from his job with the United States Air Force. Mr.
Alford retired from the Air Force on August 31, 2006
following a twenty-three year military service career.
During the overlap between his terminal leave and start-
ing with the agency, Mr. Alford alleged that he was
credited only four hours of annual leave per pay period
based on his years of civilian service. Mr. Alford later
learned that a Department of Justice legal opinion re-
quired that civilian employees accrue annual leave during
the time period of their terminal leave from the military
at a rate which accounts for their years of military ser-
vice. Thus, Mr. Alford sought to be credited annual leave
at a rate of eight hours per pay period for the duration of
his terminal leave, rather than four hours per pay period.
After various alleged attempts to receive credit for the
missing annual leave, Mr. Alford appealed to the Board.
The administrative judge issued a show cause order
3 ALFORD v. DEFENSE
informing Mr. Alford that it was his burden to prove that
the Board had jurisdiction over his appeal under VEOA or
USERRA. In the initial decision, the administrative
judge found that Mr. Alford failed to establish the Board’s
jurisdiction over his VEOA claim because 5 U.S.C. § 6303
is a statutory provision governing the accrual of annual
leave by Federal employees having nothing to do with
veterans’ preference. The administrative judge also found
that Mr. Alford failed to establish the Board’s jurisdiction
under a USERRA claim because as an employee of an
intelligence agency, Mr. Alford’s USERRA claim was
ineligible for judicial review. The administrative judge
further determined that Mr. Alford failed to state a claim
under either VEOA or USERRA.
Mr. Alford petitioned the full Board for review. The
Board denied his petition, noting that it did not meet the
criteria for review set by 5 C.F.R. § 1201.115. The Board
found that Mr. Alford’s petition did not make any argu-
ment establishing error by the administrative judge or
presenting any new and material evidence affecting the
outcome of the case. The Board, however, reopened Mr.
Alford’s case to modify and affirm the administrative
judge’s decision. The Board concluded that a veteran’s
claim of violation of veterans’ preference rights should be
liberally construed and that the judge erred in determin-
ing that the Board lacked jurisdiction over Mr. Alford’s
VEOA claim. Nevertheless, the Board affirmed the
administrative judge’s finding that Mr. Alford failed to
state a claim upon which relief can be granted under
VEOA. It reasoned that the leave accrual provisions of 5
U.S.C. § 6303 do not stand in some relation to, have a
bearing on, concern, or have a connection with veterans’
preference rights. The Board also affirmed the judge’s
finding that Mr. Alford failed to establish the Board’s
jurisdiction of his USERRA claim, therefore vacating the
ALFORD v. DEFENSE 4
judge’s alternative finding that Mr. Alford’s USERRA
claim must be dismissed for failure to state a claim. This
petition for review followed.
DISCUSSION
We must affirm a Board's decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review questions of law and deter-
minations of jurisdiction without deference to the Board.
Carley v. Dep’t of the Army, 413 F.3d 1354, 1356 (Fed. Cir.
2005).
Mr. Alford contends that agency violated 5 U.S.C. §
6303 (dealing with employee leave accrual), thereby
denying him enumerated rights under the VEOA. Mr.
Alford argues that the VEOA clearly “conveys a veteran
preference for a retired uniformed service member [sic]
sacrifices during a during a [sic] period of war or in a
campaign or expedition.”
The government responds, arguing that the underly-
ing statute that Mr. Alford claims was violated does not
implicate any right a preference eligible veteran may
have under the VEOA. According to the government, the
statutory provision upon which Mr. Alford relies concerns
how leave is to be credited once a veteran is employed by
the agency in no way relates to any right a veteran may
have when competing for a federal position.
The government is correct. “Veterans’ preference
rights are defined by the Veterans’ Preference Act of 1944
(‘VPA’), Pub.L. No. 78-359, 58 Stat. 387 (codified at 5
5 ALFORD v. DEFENSE
U.S.C. §§ 2108, 3309-3320), and its attendant regulations,
see 5 C.F.R. §§ 302.101-302.403 (2005). The VPA gener-
ally gives a qualifying veteran, known as a ‘preference
eligible,’ various preferences in applying for civil service
positions within the competitive and excepted services.”
Patterson v. Dep’t of the Interior, 424 F.3d 1151, 1155
(Fed. Cir. 2005). The various preference rights available
to preference eligible veterans during the civil service
hiring process, however, are not implicated by Mr. Al-
ford’s claim under the VEOA relating to accrual of annual
leave. See 5 U.S.C. § 6303. Thus, the Board did not err in
determining that Mr. Alford failed to state a claim under
VEOA for which relief can be granted.
Turning now to Mr. Alford’s second claim, he argues
that the agency violated USERRA by failing to credit him
the leave sought. He further alleges that the Board erred
in determining that it lacked jurisdiction over his
USERRA claim and that intelligence agencies are not
exempt from their obligations to comply with USERAA.
See 38 U.S.C. §§ 4315, 4325.
In response, the government argues that the Board
correctly determined that it did not have jurisdiction over
Mr. Alford’s USERRA claim. The government argues that
according to 5 U.S.C. § 2302(a)(2)(C)(ii), the DIA, where
Mr. Alford was employed, is excluded from the definition
of a Federal executive agency falling within the scope of
the Board’s grant of authority over prohibited personnel
actions.
We agree with the government. There is no dispute
that that the DIA is an intelligence agency and that Mr.
Alford was employed by the DIA at the time of his claim.
Under USERRA, “[a] person may submit a complaint
against a Federal executive agency or the Office of Per-
ALFORD v. DEFENSE 6
sonnel Management” directly to the Board. See 38 U.S.C.
§ 4324. “Federal executive agency” is defined to include
“any Executive agency . . . other than an agency referred
to in section 2302(a)(2)(C)(ii) of title 5.” This section,
however, excepts “the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency, the
National Security Agency, and . . . any Executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities” from Board review. 5 U.S.C. § 2302(a)(2)(C)(ii)
(emphasis added). Thus, even if Mr. Alford is correct that
intelligence agencies are not exempted from their obliga-
tions under USERRA, the Board lacks jurisdiction to hear
any claim that the DIA failed to comply with its alleged
obligations under USERRA.
In sum, there exists no reversible error in the Board’s
determination that Mr. Alford failed to state a claim upon
which relief could be granted under VEOA and the
Board’s determination that it did not have jurisdiction
over Mr. Alford’s USERRA. We have reviewed Mr. Al-
ford’s other arguments and consider them unpersuasive. 1
Accordingly, we affirm the decision of the Board dismiss-
ing Mr. Alford’s appeal.
AFFIRMED
1 We note that Mr. Alford has been paid $1,392 as
compensation for the hours of annual leave he claimed
were due him. He continues, however, to protest related
issues regarding back interest, etc.