The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TROY KELLEY, DOCKET NUMBER
Appellant, SF-4324-25-0236-I-1
v.
DEPARTMENT OF STATE, DATE: June 11, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Troy Kelley , Tacoma, Washington, pro se.
Camille V’Estres , Marianne Perciaccante , Esquire,
and Michael E. Yohannan , Esquire, Washington, D.C., for the agency.
Gerard E. Riddick , Clarksburg, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended
at 38 U.S.C. §§ 4301-4335) (USERRA). For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
In October 2024, the appellant filed a USERRA appeal alleging that he is a
preference-eligible veteran and that the agency discriminated against him on the
basis of his uniformed military service when it did not select him for a Foreign
Service Office Management Specialist position advertised in job announcement
number OMS-2023-0002. Initial Appeal File (IAF), Tab 1 at 1-5, Tab 5 at 74-83.
The appellant requested a hearing. IAF, Tab 1 at 1. The administrative judge
issued an order informing him of his jurisdictional burden and proof requirements
and directed him to submit evidence and argument amounting to a nonfrivolous
allegation of jurisdiction. IAF, Tab 2 at 3-8. In response, the appellant alleged
that the agency’s most senior examiner treated him in a more hostile manner than
she treated the other candidates, and that the agency withdrew its conditional
offer of appointment shortly after he submitted his veterans’ preference
document. IAF, Tab 3 at 4-5.
In the initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant did not nonfrivolously allege that
his uniformed service was a substantial or motivating factor in his nonselection.
IAF, Tab 10, Initial Decision (ID) at 15. The appellant has filed a petition for
review, and the agency has responded in opposition. Petition for Review (PFR)
File, Tabs 1, 3.
The Board has adopted, and the U.S. Court of Appeals for the Federal
Circuit has endorsed, a “liberal approach in determining whether jurisdiction
exists under USERRA.” Yates v. Merit Systems Protection Board, 145 F.3d 1480,
1484-85 (Fed. Cir. 1998); Beck v. Department of the Navy, 120 M.S.P.R. 504, ¶ 8
(2014). Under this approach, the relative weakness of the specific factual
3
allegations initially made by an appellant in his USERRA claim should not serve
as the basis for dismissing the appeal for lack of jurisdiction; rather, if he fails to
develop those allegations, his USERRA claim should be denied on the merits.
Beck, 120 M.S.P.R. 504, ¶ 8. Thus, to establish jurisdiction over his USERRA
claim, the appellant need only allege the following: (1) he served in the military;
(2) he was denied initial employment, reemployment, retention in employment,
promotion, or a benefit of employment; and (3) the denial was due to his service
in the military. Id.
Applying the Board’s liberal approach in USERRA appeals, we find that
the appellant’s allegations that the agency denied him initial employment based
on his status as a veteran are sufficient to establish jurisdiction over his USERRA
appeal. See id.; Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 8
(2010) (finding that, although the appellant’s allegations were vague and lacked
specificity, he established jurisdiction by alleging that the agency was aware of
his prior uniformed service and denied him employment because of it, and denied
him a benefit of employment when it withdrew funds from his civil service
retirement account). In finding that the appellant failed to establish jurisdiction,
the administrative judge noted, among other things, that the agency was aware of
the appellant’s military status when it extended the conditional offer of
employment and that it appears to have had strong grounds for rescinding that
offer that are unrelated to the appellant’s uniformed service. ID at 9. However
sound the administrative judge’s reasoning may have been, we find that it goes to
the relative weakness of the appellant’s specific factual allegations, not to
whether he has established Board jurisdiction. See Beck, 120 M.S.P.R. 504, ¶ 8.
An appellant who establishes jurisdiction over a USERRA appeal has an
unconditional right to a hearing if he requests one. Kirkendall v. Department of
the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007) (en banc); Searcy, 115 M.S.P.R.
260, ¶ 7. Because the appellant requested a hearing and made sufficient
4
allegations under the liberal pleading standard applied in USERRA cases to
establish jurisdiction, we remand the appeal for a hearing on his USERRA claim.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.