Jonathan Dowling v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JONATHAN DOWLING,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2025-1703
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-22-0298-I-1.
______________________
Decided: July 21, 2026
______________________
J ONATHAN D OWLING, Omaha, NE, pro se.
J OSHUA D AVID T ULLY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE HOSFORD, P ATRICIA M. MC CARTHY , BRETT SHUMATE.
______________________
Before P ROST , REYNA, and STARK, Circuit Judges.
P ER CURIAM .
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DOWLING v. AIR FORCE 2
Jonathan Dowling is a non-party witness from a non-
selection proceeding before the Merit Systems Protection
Board. He challenges a credibility determination reached
by an administrative judge and the denial of a motion to
intervene in the selection proceeding. Because
Mr. Dowling lacks a statutory right to seek judicial review
under 5 U.S.C. § 7703(a)(1), we dismiss.
I. BACKGROUND
Mr. Dowling, a Commander in the U.S. Navy, served
as the chair of a hiring panel for a GS-13 civilian attorney
position with the U.S. Air Force. The other hiring panelists
included Dr. Karen Miller, Command Historian, and Mark
Barth, Senior Civilian Advisor.
The selecting official for the position, Colonel Laura
Calese, approved eight candidates to interview for the po-
sition. James Tucker, who was serving on active duty in
the Air Force, interviewed for the position but was not se-
lected. Mr. Tucker was ranked fourth of the candidates
that interviewed. The candidate eventually selected was
not a service member in the uniformed services.
Mr. Dowling informed Mr. Tucker that Mr. Barth had
made comments during the hiring process indicating that
he had a preference for hiring civilians in possible violation
of the Uniformed Services Employment and Reemployment
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DOWLING v. AIR FORCE 3
Rights Act of 1994 (“USERRA”).1 App’x 55, App’x 60–63.2
Mr. Tucker appealed his non-selection to the Merit Sys-
tems Protection Board (“Board”), alleging that the Air
Force’s hiring process violated USERRA. Tucker v. Dep’t
of Air Force, No. DE-4324-22-0298-I-1, 2023 WL 4110663,
at *1 (MSPB June 21, 2023).
Mr. Dowling testified in support of Mr. Tucker at the
oral hearing before the Board. He testified that Mr. Barth
had improperly expressed a preference for hiring civilians
over members of the military reserves.
Mr. Barth offered competing testimony that his prior
experience in active service and as a reservist demon-
strates that he does not have a bias against uniformed ser-
vice members, and that he consistently applies veterans’
preference laws when making hiring decisions. Mr. Barth
also provided reasons unrelated to uniformed service why
he preferred multiple other candidates to Mr. Tucker.
Ms. Calese also testified that Mr. Dowling and Mr. Barth
1 USERRA protects veterans from being discrimi-
nated against based on military service when, inter alia,
applying for jobs. See 38 U.S.C. § 4311(a). An appellant
alleging a USERRA discrimination claim bears the initial
burden of demonstrating that “the employee’s military ser-
vice was a substantial or motivating factor” in the adverse
employment action. Adams v. Dep’t of Homeland Sec.,
3 F.4th 1375, 1377 (Fed. Cir. 2021) (internal quotations
omitted). If an appellant makes that showing, the em-
ployer then “has the opportunity to come forward with evi-
dence to show . . . that the employer would have taken the
adverse action anyway, for a valid reason.” McMillan v.
Dep’t of Justice, 812 F.3d 1364, 1372 (Fed. Cir. 2016).
2 “App’x” refers to the appendix filed by Mr. Dowling
at ECF No. 28.
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DOWLING v. AIR FORCE 4
“often had negative interactions, for which she had to in-
tervene.” App’x 22.
The administrative judge (“AJ”) at the Board deter-
mined that the “only evidence suggesting that uniformed
service was a negative factor was from Dowling about
Barth.” App’x 24. The AJ then pointed to Mr. Tucker’s and
Mr. Dowling’s admissions that they were “friends outside
the office, which may suggest a bias” on Mr. Dowling’s part.
Id. And he credited Ms. Calese’s testimony that
Mr. Dowling and Mr. Barth had a negative relationship,
making it “likely that Dowling was primed to view Barth’s
actions with an unnecessarily harsh lens.” Id. The AJ
therefore determined that Mr. Barth had credibly testified
that he “did not favor civilian candidates.” Id.
The AJ further determined that, even if Mr. Tucker
had proved his uniformed service was a substantial or mo-
tivating factor in how Mr. Barth ranked him, Mr. Tucker
would not have been selected for the position. The AJ is-
sued an Initial Decision holding that Mr. Tucker had not
met his burden to prove a USERRA violation. Mr. Tucker
petitioned the Board for review of the Initial Decision, and
the full Board adopted the AJ’s decision as final.
Following the AJ’s Initial Decision, Mr. Dowling moved
to intervene. Tucker v. Dep’t of Air Force, 2023 WL
4110663, at *1. He argued that the AJ’s credibility deter-
mination regarding his hearing testimony undermined “his
ability to obtain relief in complaints he filed against his
employing agency” and “negatively impacted” his career.
Id. The Board found that Mr. Dowling’s argument about
inability to obtain relief in future proceedings was “mere
speculation,” and determined that Mr. Dowling had not
shown that he would be “affected directly by the outcome
of [Mr. Tucker’s] proceeding,” as required by
5 C.F.R. § 1201.114(i)(3). Tucker, 2023 WL 4110663, at *2.
The Board referred to Mr. Dowling as “merely a witness
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DOWLING v. AIR FORCE 5
who is disappointed with the outcome of [Mr. Tucker’s] ap-
peal,” and denied his motion to intervene. Id. Mr. Dowling
filed a second motion to intervene in Mr. Tucker’s petition
for review reasserting the same argument, which the
Board again denied in its Final Decision.
Mr. Tucker did not petition for review of the Board’s
Final Decision denying his USERRA claim. Mr. Dowling
alone petitioned for review to this court. In response, we
ordered the parties to address whether Mr. Dowling has
constitutional standing and whether “Congress has af-
forded him [] a right to judicial review.” ECF No. 13 at 2;
see also ECF No. 22.
II. D ISCUSSION
We consider whether Mr. Dowling, a non-party witness
and unsuccessful intervenor to the underlying proceeding,
has a statutory right to seek judicial review of the Board’s
Final Decision. We conclude that he does not, and there-
fore that we lack jurisdiction over Mr. Dowling’s petition
for review.3
Although this court generally has jurisdiction over fi-
nal Board decisions, see 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A), a petitioner seeking review of a final Board
decision must show that Congress has afforded him a right
to judicial review. Pursuant to 5 U.S.C. § 7703(a)(1), only
a defined group of individuals has the right to seek judicial
review of a final Board decision. Section 7703(a)(1) sets
forth that “[a]ny employee or applicant for employment ad-
versely affected or aggrieved by a final order or decision of
the Merit Systems Protection Board may obtain judicial re-
view of the order or decision.” 5 U.S.C. § 7703(a)(1) (em-
phases added). An “employee” is defined in 5 U.S.C.
3 Because we determine that Mr. Dowling lacks a
statutory right to petition for review, we do not reach the
issue of constitutional standing.
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DOWLING v. AIR FORCE 6
§ 2105(a) as a person who is, inter alia, “appointed in the
civil service.”
Here, Mr. Dowling concedes he is not an “employee” or
“applicant for employment” within the context of 5 U.S.C.
§ 7703(a)(1). ECF No. 18 at 1 (“Petitioner Dowling is not
an employee within the meaning of the Civil Service Re-
form Act (“CSRA”).”), 4. Mr. Tucker, not Mr. Dowling, was
the “applicant for employment.” Mr. Tucker has not sought
judicial review of the Final Decision. Accordingly, we must
dismiss Mr. Dowling’s petition for review for want of juris-
diction.4
CONCLUSION
For the foregoing reasons, we dismiss Mr. Dowling’s
petition for review before this court.
DISMISSED
COSTS
No costs.
4 Mr. Dowling requested, if we determine we lack ju-
risdiction under § 7703(a)(1), that we transfer his petition
for review to the United States District Court for the Dis-
trict of Nebraska. ECF No. 18 at 5–8. He includes a one
paragraph argument that the District of Nebraska has ju-
risdiction to hear his case under 5 U.S.C. § 704, a different
statute from that at issue here, which provides for judicial
review of “final agency action for which there is no other
adequate remedy in a court.” Id. at 6; 5 U.S.C. § 704.
Mr. Dowling presents no legal support as to why the dis-
trict court would have jurisdiction under § 704. We find
Mr. Dowling’s argument to be underdeveloped and there-
fore abandoned. SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). Thus, we deny
Mr. Dowling’s motion to transfer.
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