Case: 20-2089 Document: 37 Page: 1 Filed: 01/21/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW SEARCY, JR.,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2020-2089
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-17-0227-W-1.
______________________
Decided: January 21, 2021
______________________
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 JEFFREY
B. CLARK, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before LOURIE, SCHALL, and DYK, Circuit Judges.
Case: 20-2089 Document: 37 Page: 2 Filed: 01/21/2021
2 SEARCY v. DEPARTMENT OF AGRICULTURE
PER CURIAM.
DECISION
Andrew Searcy, Jr., petitions for review of the final de-
cision of the Merit Systems Protection Board (“Board”) that
dismissed his appeal for failure to state a claim upon which
relief could be granted and as precluded by the doctrine of
res judicata. See Searcy v. Dep’t of Agric., No. AT-1221-17-
0227-W-1 (M.S.P.B. Mar. 16, 2017). For the reasons set
forth below, we affirm.
DISCUSSION
I.
Mr. Searcy joined the Department of Agriculture
(“USDA” or “agency”) in 1974. Subsequently, he enrolled
in a full-time post-graduate program at Northwestern Uni-
versity under an agreement to remain in the employment
of the agency in exchange for tuition benefits. Searcy v.
Merit Sys. Prot. Bd., 486 F. App’x 117, 119 (Fed. Cir. 2012)
(“Searcy I”). Mr. Searcy left Northwestern University in
1977, however, without completing his program and did
not return to his position with USDA. Id. As a result, the
agency terminated him for separation by abandonment, ef-
fective May 30, 1977. At the time of his termination, Mr.
Searcy was in debt to the agency in the amount of
$11,036.99. For that reason, USDA placed a lien in that
amount on his Civil Service Retirement System account.
Id.
On June 12, 2006, Mr. Searcy was notified that his ap-
plication for deferred retirement was denied because his
retirement contributions had been forfeited to pay his debt
to USDA. Id. at 119–20. On February 6, 2008, Mr. Searcy
filed an Equal Employment Opportunity Commission
(“EEOC”) complaint alleging discrimination on the basis of
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SEARCY v. DEPARTMENT OF AGRICULTURE 3
race. Id. at 120. 1 In his complaint, Mr. Searcy alleged that
his retirement contributions were forfeited because of his
forced termination by USDA on the basis of race. Id.
EEOC dismissed the complaint on July 21, 2009 as un-
timely. Id.
In 2010, Mr. Searcy appealed to the Board, alleging
that he was constructively terminated by USDA in 1977.
He also alleged that the agency had violated the Uniformed
Services Employment and Reemployment Rights Act
(“USERRA”), the Veterans’ Reemployment Rights Act
(“VRRA”), and the Veterans Employment Opportunity Act
(“VEOA”) by terminating him based upon abandonment, by
withdrawing money from his retirement funds, and by
denying him employment. Id. at 120–21. The Board dis-
missed Mr. Searcy’s constructive termination claim as un-
timely, id. at 121, and it dismissed his USERRA and VRRA
claims for failure to state claims upon which relief could be
granted. Id. Finally, the Board dismissed Mr. Searcy’s
VEOA claim for lack of jurisdiction because he had failed
to show that he had exhausted his remedies with the De-
partment of Labor. Id. In Searcy I, we affirmed the Board’s
decisions. Id. at 125.
On October 24, 2016, Mr. Searcy filed an appeal with
the Board alleging prohibited personnel practices in viola-
tion of 5 U.S.C. § 2302. 2 Specifically, Mr. Searcy alleged
1 Mr. Searcy had previously filed an EEOC com-
plaint in 1999. That complaint was dismissed because Mr.
Searcy had failed to timely contact an equal Employment
Opportunity counselor. Id. at 119.
2 Following Searcy I, and prior to his October 2016
appeal, Mr. Searcy filed two other appeals with the Board
and three actions in this court. See Searcy v. Dep’t of Agric.,
557 F. App’x 975 (Fed. Cir. 2014) (“Searcy II”); In re Searcy,
572 F. App’x 986 (Fed. Cir. 2014) (“Searcy III”); Searcy v.
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4 SEARCY v. DEPARTMENT OF AGRICULTURE
that, in the course of his separation from USDA in 1977,
the agency had violated his rights under VEOA and
USERRA by (1) breaching a continuing service after train-
ing agreement; (2) terminating him for abandonment of his
position; and (3) withdrawing funds from his Civil Service
Retirement Account. In response to a jurisdictional order
from the Board, Mr. Searcy also alleged that the Depart-
ment of Labor Veterans Employment & Training Service
(“DOL-VETS”) and the Office of Special Counsel (“OSC”)
had improperly declined to reopen his VEOA and USERRA
claims, and that those denials constituted prohibited per-
sonnel practices in violation of 5 U.S.C. § 2302 and the
Whistleblower Protection Enhancement Act (“WPEA”).
Pet’r’s App. 16–17; Suppl. App. 1–2.
The Board issued two initial decisions on March 16,
2017, dismissing the appeal for lack of jurisdiction. In
MSPB No. AT-4324-17-0266-I-1, the Board ruled that Mr.
Searcy’s USERRA and VEOA claims regarding his separa-
tion from USDA were barred by res judicata, citing our de-
cision in Searcy I that USERRA could not provide a valid
basis for Mr. Searcy’s claims. Suppl. App. 3–4. The Board
also ruled that, to the extent Mr. Searcy was attempting to
raise a claim of an agency violation of the Veterans Prefer-
ence Act of 1944 (“VPA”), the Board does not have jurisdic-
tion over VPA claims in the context of a USERRA appeal.
Id. at 4. Finally, the Board ruled that Mr. Searcy had failed
to state a claim under the VEOA against DOL-VETS and
OSC, on the ground that declining to reopen a case is not
actionable under the VEOA. Id. at 5–6. After the initial
decision became final, Mr. Searcy appealed, and we af-
firmed. See Searcy v. Dep’t of Agric., 813 Fed App’x 472,
475 (Fed. Cir. 2020) (“Searcy V”).
Merit Sys. Prot. Bd., 740 F. App’x 988 (Fed. Cir. 2018)
(“Searcy IV”).
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SEARCY v. DEPARTMENT OF AGRICULTURE 5
The second initial decision by the Board on March 16,
2017, was in MSPB No. AT-1221-17-0227-W-1, the decision
on appeal here. In it, the Board addressed whether Mr.
Searcy had stated a claim under the WPEA with respect to
the refusal of DOL-VETS and OSC to reopen and to inves-
tigate his complaints concerning his 1977 separation from
USDA. Pet’r’s App. 18. The Board determined that Mr.
Searcy could not state such a claim because declining to
reopen and investigate a complaint does not constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A) over which
the Board could exercise jurisdiction under the WPEA. Id.
at 19. The Board also determined that Mr. Searcy’s claim
was “ultimately premised on the very same factual predi-
cate that has been previously investigated and litigated—
his 1977 separation from the Department of Agriculture.”
Id. at 20. For the same reasons discussed in the Board’s
initial decision in MSPB No. AT-4324-17-0226-I-1, the
Board ruled that relitigation of Mr. Searcy’s separation
from USDA was barred by res judicata. Id. After the
Board’s initial decision became final, Mr. Searcy appealed.
We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
II.
Our scope of review of a decision of the Board is limited.
We will affirm the Board’s decision unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired 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.” Searcy V, 813 F. App’x at 475 (quoting John-
ston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir.
2008)). Whether the Board has jurisdiction to adjudicate
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6 SEARCY v. DEPARTMENT OF AGRICULTURE
an appeal is a question of law, which we review de novo.
Id.
III.
Mr. Searcy appears to make two main arguments on
appeal. First, he appears to argue that the Board erred
when it failed to grant him a hearing on the issue of juris-
diction. Pet’r’s Br. 6. Second, he appears to argue that the
provisions of USERRA and the VEOA bar the application
of res judicata. Id. at 6–7.
To establish that the Board had jurisdiction over his
appeal under the WPEA, Mr. Searcy needed to have ex-
hausted his administrative remedies before OSC and to
have made “non-frivolous allegations” that he made disclo-
sures or engaged in other protected activity under 5 U.S.C.
§ 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). He also needed
to have made “non-frivolous allegations” that the disclo-
sure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action,
as defined by 5 U.S.C. § 2302(a)(2)(A). See 5 U.S.C.
§§ 1214(a)(3), 1221; Yunus v. Dep’t of Veterans Affairs, 242
F.3d 1367, 1371–72 (Fed. Cir. 2001). The Board held that
it lacked jurisdiction because declining to reopen and in-
vestigate a complaint does not constitute a “personnel ac-
tion” under 5 U.S.C. § 2302(a)(2)(A). 3 As we have
previously stated, the Board’s jurisdictional analysis may
be conducted entirely on the written record and need not
involve a hearing. Kahn v. Dep’t of Justice, 528 F.3d 1336,
1341 (Fed. Cir. 2008). We thus see no error in the Board’s
refusal to grant Mr. Searcy a hearing on the jurisdictional
issue.
3 Mr. Searcy does not appear to challenge this hold-
ing and challenges only the Board’s denial of his request
for a hearing.
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SEARCY v. DEPARTMENT OF AGRICULTURE 7
Relatedly, Mr. Searcy also appears to argue that the
Board erred to the extent it held it lacked jurisdiction over
his claim under 5 U.S.C. § 2302(b)(8). In that regard, he
contends that his claim was made under 5 U.S.C.
§ 2302(b)(11). Pet’r’s Br. 5. This argument does not help
Mr. Searcy. The reason is that, even if he had made his
claim under 5 U.S.C. § 2302(b)(11), the Board still would
have lacked jurisdiction. The Board’s jurisdiction over
WPEA claims under 5 U.S.C. § 1221 is limited to “certain
reprisal cases,” namely, claims under §§ 2302(b)(8) or
2302(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. §§ 1214(a)(3),
1221; see also Weber v. Dep’t of Army, 9 F.3d 97, 100 (Fed.
Cir. 1993) (noting that the Board does not have jurisdiction
over claims brought under 5 U.S.C. § 2302(b)(11))). 4
The Board also did not err in concluding that Mr.
Searcy’s claim was barred by the doctrine of res judicata.
“Res judicata bars parties from litigating claims that could
have been raised in an earlier-resolved action.” Searcy I,
813 F. App’x at 475 (citing Carson v. Dep’t of Energy, 398
F.3d 1369, 1375 (Fed. Cir. 2005)). “Specifically, res judi-
cata 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 transac-
tional facts as those litigated in the first action.” Id. (citing
Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.
Cir. 2003)). Mr. Searcy’s allegations under the WPEA are
premised on the same facts that have been previously in-
vestigated and litigated—his 1977 separation from the
USDA. At the same time, we do not see anything in the
4 We note that, in any event, § 2302(b)(11) requires
that an agency affirmatively “take, recommend, or ap-
prove” or “fail to take, recommend, or approve” a “person-
nel action” as defined under § 2302(a)(2)(A). There is no
indication that this factual predicate exists in this case.
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8 SEARCY v. DEPARTMENT OF AGRICULTURE
statutory provisions which Mr. Searcy cites that would pre-
vent the application of res judicata in this case.
We have considered Mr. Searcy’s remaining arguments
and have found them to be without merit. 5
CONCLUSION
For the foregoing reasons, we affirm the final decision
of the Board.
AFFIRMED
COSTS
No costs.
5 On October 16, 2020, Mr. Searcy filed a “Motion in
Support of Inclusion of Notice of Supplemental Authority
Corrected Attachments” (Dkt. No. 28). In addition, on De-
cember 10, 2020, he filed a “Motion for Leave to File and
Motion For Judgment on the Pleadings” (Dkt. No. 34). We
have considered these motions and they are hereby denied.