The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY S. OSTWALD, DOCKET NUMBER
Appellant, DE-4324-14-0615-I-1
v.
DEPARTMENT OF VETERANS DATE: June 8, 2015
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jeffrey S. Ostwald, Omaha, Nebraska, pro se.
Paul L. Pullum, Esquire, Omaha, Nebraska, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal for failure to prosecute. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the field office for further adjudication in
accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant is a 10-point preference-eligible veteran with a 30% or more
service-connected disability. Initial Appeal File (IAF), Tab 5 at 19. On
August 25, 2013, the agency appointed him to the excepted service position of
GS-06 Medical Support Assistant. Id. On August 14, 2014, less than 1 year into
his appointment, the agency terminated the appellant for “habitual tardiness and
not satisfactorily meeting the minimum requirements for the position.” Id.
at 11-13.
¶3 On August 21, 2014, the appellant filed a USERRA complaint with the
Department of Labor (DOL). IAF, Tab 1 at 4, 10. On September 13, 2014, he
filed a USERRA appeal with the Board and requested a hearing, disputing the
stated reasons for his termination, and arguing that his service obligations with
the Army National Guard were the real reason for his termination. Id. at 2, 5.
¶4 On September 16, 2014, the administrative judge issued an order informing
the appellant of how to establish jurisdiction over his appeal, and directing him to
file evidence and argument on the issue within 12 days of the date of the order.
IAF, Tab 3. The appellant did not respond. On October 23, 2014, the
administrative judge issued a show cause order, directing the appellant to file
evidence and argument on the jurisdictional issue within 7 days, and informing
the appellant that the appeal might be dismissed for failure to prosecute if he did
not respond. IAF, Tab 6. The appellant did not respond to the order. On
December 2, 2014, the administrative judge issued a “Final Order to Show
Cause,” informing the appellant that he proposed to dismiss the appeal for failure
to prosecute, and warning the appellant that the appeal would be dismissed with
prejudice unless the appellant contacted him no later than December 9, 2014.
IAF, Tab 7. Again, the appellant did not respond. On December 31, 2014, the
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administrative judge issued an initial decision dismissing the appeal for failure to
prosecute. IAF, Tab 8, Initial Decision (ID) at 1-2. The initial decision notified
the appellant of how to file a petition for review with the Board and notified him
that the filing deadline was February 4, 2015. ID at 3-4.
¶5 On March 6, 2015, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. He explained that his petition was untimely because
he was on military orders, attempting to obtain attorney representation, and
working with DOL to resolve his case. Id. at 3-4. He explained that DOL had
since completed its investigation, determined that he had been discriminated
against based on his uniformed service, and concluded that he should be
reinstated. Id. at 4. He attached a copy of DOL’s letter to his petition. Id. at 5-7.
The agency has filed a response to the petition for review, opposing it on both
timeliness and substantive grounds. PFR File, Tab 3.
¶6 To determine whether an appellant has shown good cause for an untimely
filing, the Board will consider the length of the delay, the reasonableness of his
excuse and his showing of due diligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). We have considered
the timeliness arguments that this pro se appellant submitted along with his
petition for review, and we find good cause to waive the filing deadline. PFR
File, Tab 1 at 3-4.
¶7 Regarding the initial decision, we find that the administrative judge did not
abuse his discretion by dismissing the appeal for failure to prosecute. See
Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 10 (2011). Nevertheless, the
record on review contains new and material evidence showing that the appellant
has now exhausted his USERRA claim before DOL and that his Board appeal is
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now ripe for adjudication. 2 PFR File, Tab 1 at 5-7, Tab 3 at 19; see 38 U.S.C.
§ 4324(b) (if an individual files a USERRA complaint with DOL, he must exhaust
those proceedings before filing his Board appeal); see also Gossage v.
Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012) (if an appellant first seeks
corrective action from DOL, then the Board lacks jurisdiction over his USERRA
appeal until he receives notification that DOL was unable to resolve the
complaint); Muse v. U.S. Postal Service, 82 M.S.P.R. 164, ¶ 13 (1999). If the
administrative judge had the benefit of this information below, he would have
dismissed the appeal for lack of jurisdiction without prejudice to refiling, pending
the outcome of the DOL exhaustion process. See Goldberg v. Department of
Homeland Security, 104 M.S.P.R. 215, ¶¶ 13-14 (2006) (finding adjudication of a
USERRA claim was premature in the absence of notification from DOL that it
was unable to resolve the appellant’s complaint). The appellant alleged below
that he has an obligation to perform duty in a uniformed service of the United
States and that the agency denied him employment due to this obligation. IAF,
Tab 1 at 5. This, in conjunction with the new evidence showing that he
completed the DOL exhaustion process, is sufficient to establish Board
jurisdiction over the appeal. See Lubert v. U.S. Postal Service, 110 M.S.P.R. 430,
¶ 11 (2009).
2
DOL issued its closeout letter on December 22, 2014, PFR File, Tab 3 at 19, and the
appellant presumably did not receive it until 5 business days later, which was
December 31, 2014—the same day that the administrative judge issued his initial
decision, see 5 C.F.R. § 1201.4(l) (absent evidence to the contrary, documents filed by
mail are presumed to have been mailed 5 days earlier). We disagree with the agency
that the closeout letter indicates that DOL reversed its “initial conclusion” after
receiving the agency’s response to the “preliminary” letter. PFR File, Tab 3 at 6.
There is nothing about the November 18, 2014 letter to indicate that it was “initial” or
“preliminary.” PFR File, Tab 1 at 5-7. Nor is there anything about the December 22,
2014 letter to indicate that DOL reversed itself. PFR File, Tab 3 at 19. Unlike the
Office of Special Counsel, which can file a petition for corrective action with the
Board, DOL must rely on the agency’s cooperation to correct USERRA violations. See
20 C.F.R. § 1002.290 (reflecting that DOL lacks authority to order agency compliance
with USERRA). Because the agency in this case declined to cooperate, there was little
that DOL could do but close its file.
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ORDER
For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.