The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BYRON GILES, DOCKET NUMBER
Appellant, DA-3443-15-0523-I-1
v.
DEPARTMENT OF VETERANS DATE: March 10, 2016
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Byron Giles, Shreveport, Louisiana, pro se.
Brandi M. Powell, New Orleans, Louisiana, 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 the appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a GS-11 Information Technology (IT) Specialist, appealed
his nonselection for promotion to the GS-12 position of Supervisory IT Specialist.
Initial Appeal File (IAF), Tab 1. He requested a hearing. Id. The administrative
judge dismissed the appeal for lack of jurisdiction without holding the hearing
that the appellant requested, finding that generally the Board does not have
jurisdiction over nonselections, and that the appellant failed to allege jurisdiction
under any of the exceptions to the general rule, i.e., that the agency’s decision
constituted retaliation for whistleblowing, discrimination based on uniformed
service, or a violation of his veterans’ preference rights. 2 IAF, Tab 10, Initial
Decision.
¶3 In his petition for review, the appellant alleges that the administrative judge
erred in finding that he failed to allege a violation of his veterans’ preference
rights under the Veterans Employment Opportunities Act of 1998 (VEOA) and
that he failed to allege discrimination on the basis of uniformed service under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). Petition for Review (PFR) File, Tab 1.
¶4 To establish jurisdiction over a VEOA appeal alleging a violation of
veteran’s preference rights, an appellant must (1) show that he exhausted his
remedy with the Department of Labor; and (2) make nonfrivolous allegations that:
(i) he is a preference eligible within the meaning of VEOA, (ii) the action at issue
took place on or after the date that VEOA was enacted, and (iii) the agency
violated his rights under a statute or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(a)(1)(A); Jarrard v. Social Security
Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed.
Cir. 2012).
2
Because the administrative judge dismissed the appeal for lack of jurisdiction, she did
reach the issue of whether the appeal was timely filed. IAF, Tab 10, Initial Decision.
3
¶5 The appellant alleged below that he was entitled to veterans’ preference,
and he referenced his military obligation to the Air Force Reserves. IAF,
Tabs 1, 9. While it is unclear whether he was attempting to raise a VEOA claim
below, he clearly raised one on review. PFR File, Tab 1. The administrative
judge did not inform the appellant of the VEOA jurisdictional standard. The
acknowledgment order that she issued identified the VEOA statutory provision,
but did not inform the appellant that the provision referenced VEOA, and did not
specifically inform the appellant of the Board standard to prove jurisdiction under
VEOA. IAF, Tab 2 at 2. An appellant must receive explicit information on what
is required to establish an appealable jurisdictional issue. Burgess v. Merit
Systems Protection Board, 758 F.2d 641, 643‑44 (Fed. Cir. 1985). Thus, the
appellant must be afforded an opportunity to establish jurisdiction under VEOA
under the standard set forth above.
¶6 Similarly, it appears that the appellant may have been attempting to raise a
claim under USERRA. The administrative judge, though, did not inform the
appellant of the standard to prove jurisdiction under USERRA. To establish
jurisdiction over a USERRA discrimination claim before the Board, an appellant
must nonfrivolously allege that: (1) he performed duty or has an obligation to
perform duty in a uniformed service of the United States; (2) the agency denied
him initial employment, reemployment, retention, promotion, or any benefit of
employment; and (3) the denial was due to his performance of duty or obligation
to perform duty in the uniformed service. Gossage v. Department of
Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (quoting 38 U.S.C. § 4311(a)).
¶7 Here, the appellant alleged on his appeal form that he was a veteran and that
he was entitled to veterans’ preference. IAF, Tab 1. Subsequently, he stated that
about 2 months after his nonselection, he had completed his military obligation
with the Air Force Reserves. IAF, Tab 9 at 3. Thus, we find that the appellant
met elements (1) and (2) of the USERRA jurisdictional standard. At issue is
whether the appellant established element (3) of the test.
4
¶8 A claim under USERRA should be broadly and liberally construed in
determining whether an appellant has established the Board’s jurisdiction,
particularly where, as here, the appellant is pro se. Swidecki v. Department of
Commerce, 113 M.S.P.R. 168, ¶ 6 (2010); Gaston v. Peace Corps, 100 M.S.P.R.
411, ¶ 8 (2005). Because the appellant alleged that his nonselection and his
military obligation occurred very close together in time, we find that he has made
a nonfrivolous allegation that his nonselection was due to his obligation to
perform a duty in the uniformed service, and thus he met element (3) of the
USERRA jurisdictional test.
¶9 The relative weakness of an appellant’s assertions in support of his claim
under USERRA is not a basis for a jurisdictional dismissal. Thus, we find that
the appellant has established jurisdiction over his USERRA claim. Further, once
an appellant has established the Board’s jurisdiction over his USERRA appeal, he
has a right to a hearing on the merits of his claim. 38 U.S.C.A. § 4301 et seq.
¶10 Accordingly, we remand the case to afford the appellant the opportunity to
establish Board jurisdiction under VEOA, and for the hearing that he requested on
his claim that the agency discriminated against him in violation of USERRA.
IAF, Tab 1.
ORDER
¶11 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.