Brasch v. Merit Systems Protection Board
664 F. App'x 915
| Fed. Cir. | 2016Background
- Petitioner Stanley C. Brasch, a Computer Specialist at FAA in St. Louis, filed two Board appeals (April 13 and June 2, 2015) alleging USERRA violations (denial of employment benefits, discrimination/retaliation for protected USERRA activity, harassment/hostile work environment).
- The Board AJ issued jurisdictional notice orders explaining USERRA pleading standards; Brasch submitted proof of military service, prior Board appeals, and reiterated alleged agency actions.
- The AJ dismissed both appeals for lack of jurisdiction, finding Brasch failed to make non-frivolous allegations that military status or USERRA activity was a motivating factor; the Board affirmed those dismissals.
- Brasch appealed to the Federal Circuit, which reviews Board jurisdiction de novo and must affirm unless the Board’s decision is arbitrary, contrary to law, procedurally defective, or unsupported by substantial evidence.
- Brasch’s §4311(a) claims alleged nine discrete denials of employment benefits (e.g., badge access, training, admin access, leave, restored hard drive, travel processing); §4311(b) claims alleged retaliation for raising USERRA claims to the Board.
- The court held Brasch adequately proved service membership but failed to allege factual causal links showing military status or USERRA activity was a substantial or motivating factor in the adverse actions; thus the Board lacked jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had jurisdiction over §4311(a) claims (denial of employment benefits based on military service) | Brasch argued the Agency denied multiple employment benefits because of his military service | Agency (and Board) argued Brasch alleged only conclusory claims without factual nexus to military service | Court held Brasch failed to make non-frivolous factual allegations tying denials to military status; jurisdiction lacking |
| Whether the Board had jurisdiction over §4311(b) reprisal claims (retaliation for USERRA activity) | Brasch argued Agency retaliated for his prior USERRA complaints to the Board | Agency argued allegations were conclusory and lacked factual causal connection between protected activity and adverse actions | Court held allegations were conclusory and failed to show protected activity was a motivating factor; jurisdiction lacking |
| Standard of review and pleading burden for USERRA jurisdiction | Brasch implicitly contended his submissions met Board’s notice requirements | Board required non-frivolous factual allegations showing service membership, denial of a benefit, and military status or protected activity as a motivating factor | Court reiterated petitioner bears burden; non-frivolous, non-conclusory factual allegations required and absent here |
| Sufficiency of alleged harms as "benefits of employment" under §4311(a) | Brasch treated listed actions (access, training, leave, admin rights) as employment benefits | Board questioned whether some alleged harms were cognizable benefits and noted lack of causal allegations | Court affirmed that even assuming some were benefits, Brasch failed to allege facts linking them to military service; dismissal affirmed |
Key Cases Cited
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir. 1995) (standard for appellate review of Board decisions)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir. 1998) (de novo review of Board jurisdiction questions)
- Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885 (Fed. Cir. 1998) (petitioner bears burden to show Board jurisdiction)
- Sheehan v. Dep’t of Navy, 240 F.3d 1009 (Fed. Cir. 2001) (elements and pleading requirements for USERRA §4311(a) and (b) jurisdiction)