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NOTE: This disposition is nonprecedential.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
Case: 19-2217 Document: 41 Page: 4 Filed: 05/11/2020
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
Case: 19-2217 Document: 41 Page: 5 Filed: 05/11/2020
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).
Case: 19-2217 Document: 41 Page: 7 Filed: 05/11/2020
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
Case: 19-2217 Document: 41 Page: 8 Filed: 05/11/2020
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
Case: 19-2217 Document: 41 Page: 9 Filed: 05/11/2020
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.