Elijah Jimmy Williams, Jr. v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELIJAH JIMMY WILLIAMS, JR., DOCKET NUMBER

Appellant, AT-4324-15-0702-I-1

v.

DEPARTMENT OF VETERANS DATE: March 1, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elijah Jimmy Williams, Jr., Lithonia, Georgia, pro se.

Jeremy Vance Tramel, Decatur, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal filed under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA) for lack of jurisdiction.

Generally, we grant petitions such as this one only when: the initial decision

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

contains erroneous findings of material fact; the initial decision is based on an

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, and based on the

following points and authorities, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The appellant is employed as a Restoration Technician, GS-0644-09, with

the agency in Decatur, Georgia. Initial Appeal File (IAF), Tab 1 at 1, Tab 4

at 16. His initial pleading shows that he filed a USERRA complaint with the

Department of Labor (DOL) and that DOL investigated and closed out the

complaint. IAF, Tab 1 at 6-7. The appellant asserted that the full performance

level for his position is GS-11, and the agency’s failure to noncompetitively

promote him to that grade violated his rights under USERRA. Id. at 3. In

response to the agency’s motion to dismiss, IAF, Tab 4, the administrative judge

issued an order informing the appellant of his jurisdictional burden of proof, IAF,

Tab 5. When the appellant did not timely respond, the administrative judge

issued the initial decision. IAF, Tab 6, Initial Decision (ID). The administrative

judge found that the appellant exhausted his administrative remedies with DOL,

but failed to nonfrivolously allege that the agency violated his rights pursuant

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to 38 U.S.C. § 4311(a) or (b). 2 ID at 2-4. The administrative judge dismissed the

appeal for lack of jurisdiction. ID at 4-5.

¶3 The appellant filed a petition for review. 3 Petition for Review (PFR) File,

Tab 1. On review, the appellant challenges the agency’s representation that he

had reached the full performance level for his particular position, suggesting that

the position had promotion potential to GS-11 at an earlier time, but had been

downgraded. PFR File, Tab 3 at 7. He asserts that the agency did not promote

him to GS-11 in retaliation for his union activity. Id. at 7. He also asserts that

the agency was obligated to appoint him to a position at the GS-11 level pursuant

to 38 U.S.C. § 4214(b)(1)(A). PFR File, Tab 3 at 6; see PFR File, Tab 1 at 5-6.

¶4 Based on our review, we find that the appellant has not alleged any reason

for the Board to grant his petition for review. See 5 C.F.R. § 1201.115. He has

not shown that any of the administrative judge’s factual determinations are

incorrect and of sufficient weight to warrant an outcome different from that of the

initial decision. 5 C.F.R. § 1201.115(a). He incorrectly asserts that he is due a

noncompetitive career ladder promotion to GS-11 based on the position

description for Position Number 4991. PFR File, Tab 3 at 9. However, the

appellant does not encumber Position Number 4991. Instead, he encumbers

Position Number 5472, the full performance level for which is and has been at the

2

The administrative judge explained that the facts of the case do not implicate any

violation of reemployment rights under USERRA. ID at 2 n.1. Although the appellant

argues that his employment or reemployment rights were violated, Petition for Review

(PFR) File, Tab 1 at 4-5, we find that the administrative judge properly analyzed his

complaint under the USERRA provisions pertaining to discrimination.

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The administrative judge issued the jurisdictional order on August 18, 2015, with a

10-day period in which to respond. IAF, Tab 5 at 7. On August 31, 2015, the appellant

filed with the Clerk of the Board (Clerk) a document entitled “Supplement to PFR” via

the e-Appeal system under MSPB Docket No. AT-3443-15-0677-I-1. PFR File, Tab 1

at 1. The text of the pleading, however, referenced the docket number for the instant

appeal and states that the pleading is in response to the agency’s motion to dismiss. Id.

at 4. The Clerk treated the appellant’s filing as a premature petition for review and

granted sua sponte an extension of time in which he could file a petition in response to

the September 1, 2015 initial decision. PFR File, Tab 2.

4

GS-09 level. PFR File, Tab 3 at 10; IAF, Tab 4 at 16, 34; see id. at 17, 22, 27,

30.

¶5 The appellant likewise has not shown that the initial decision was based

upon an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case. 5 C.F.R. § 1201.115(b); see ID

at 4. Specifically, he failed to allege facts, which, if proven, could establish that

his nonpromotion to GS-11 was based upon his former military service, or upon

his activities to enforce protections afforded to any person under chapter 43 of

title 38 of the U.S. Code. See 38 U.S.C. § 4311(a), (b); Tindall v. Department of

the Army, 84 M.S.P.R. 230, ¶ 8 (1999). Indeed, he argues on review that the

agency refused to promote him in retaliation for his labor-related activities. PFR

File, Tab 3 at 7-8. Although the appellant argues that 38 U.S.C. § 4214(b)(1)(A)

entitles him to employment in a GS-11 position, 4 id. at 6, we cannot infer Board

jurisdiction on that basis, see Antol v. Perry, 82 F.3d 1291, 1296-98 (3d Cir.

1996) (declining to infer a private right of action for an agency’s failure to

comply with 38 U.S.C. § 4214(c)).

¶6 The appellant also has not alleged that the administrative judge abused his

discretion. 5 C.F.R. § 1201.115(c). He likewise has not submitted any new

evidence or argument that was unavailable despite his due diligence when the

record closed below. 5 C.F.R. § 1201.115(d). The appellant appended several

items to his petition for review, including documents pertaining to his position

description. PFR File, Tab 3 at 9-13. These items are discussed above. He

additionally included a copy of 38 U.S.C. § 4214, PFR File, Tab 3 at 14-15; a

2006 complaint of employment discrimination, id. at 16-21; a series of email

messages from June 2015 regarding his leave requests and a pending disciplinary

investigation, id. at 22-27; and a copy of his collective bargaining agreement, id.

4

Qualified veterans are eligible for veterans recruitment appointments and for

subsequent career-conditional appointments up to and including the level of GS-11 or

equivalent. See 38 U.S.C. § 4214(b)(1)(A).

5

at 28-355. The appellant has not asserted that these items were unavailable to him

before the record closed. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

214 (1980) (holding that the Board will not consider evidence submitted for the

first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence). Moreover, with

the exception of the statute, these documents do not address the dispositive issues

before the Board in a USERRA appeal. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant

a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial

decision). Accordingly, we find the initial decision to be correctly decided and

affirm the decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. Court

of Appeals for the Federal Circuit. You must submit your request to the court at

the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court

has held that normally it does not have the authority to waive this statutory

deadline and that filings that do not comply with the deadline must be dismissed.

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

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title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.

27, 2012). You may read this law as well as other sections of the United States

Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional

information is available at the court’s website, www.cafc.uscourts.gov. Of

particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”

which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.