The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCKENZIE, DOCKET NUMBER
Appellant, DC-4324-15-0451-I-1
v.
DEPARTMENT OF HOMELAND DATE: March 25, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Benjamin McKenzie, Washington, D.C., pro se.
Lorna J. Jerome, Esquire, Washington, D.C., 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 the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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, 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 agency removed the appellant from his IT Specialist position,
S-2210-13, in July 2013, based on charges of failure to properly complete
required employment records, failure to follow direct orders, inappropriate
communication, failure to cooperate in an official investigation, absence without
leave, and providing false information to a supervisor. Initial Appeal File (IAF),
Tab 2. The appellant filed an appeal in September 2014, in which he challenged
the removal and raised claims under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA) and Veterans Employment Opportunities Act of 1998 (VEOA). The
administrative judge dismissed the adverse action and VEOA appeals for
untimeliness and lack of jurisdiction, respectively. Id. However, the
administrative judge docketed this separate appeal to address the appellant’s
USERRA claim. After notifying the appellant of the jurisdictional requirements
for a USERRA appeal and receiving no response, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant’s bare
allegation that the removal was a “violation of rights under USERRA” was
insufficient to establish jurisdiction. IAF, Tab 4, Tab 5, Initial Decision (ID).
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¶3 After receiving three extensions of time from the Clerk of the Board, the
appellant filed a petition for review in which he argued that he was improperly
denied a hearing. 2 Petition for Review (PFR) File, Tabs 1-8. The appellant also
asserts that some of the agency’s accusations against him are “irrelevant, petty,
and misplaced,” and he claims that he was under the impression that he would
receive a hearing in which he could state the facts of his case and provide
evidence to show that his military service was a substantial or motivating factor
on the agency’s actions. PFR File, Tab 8. In addition, the appellant contends that
the administrative judge erred in applying Searcy v. Department of
Agriculture, 115 M.S.P.R. 260, ¶ 7 (2010), because he is “attempting to do more
than just ‘state USERRA.’” Id.
¶4 To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
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 the performance of duty or obligation to perform
duty in the uniformed service. Mims v. Social Security
Administration, 120 M.S.P.R. 213, ¶ 22 (2013). A discrimination claim under
USERRA should be broadly and liberally construed in determining whether it is
nonfrivolous, particularly where, as here, the appellant is pro se. Id. Once an
appellant has established Board jurisdiction over his USERRA claim, via the
requisite nonfrivolous allegations, he has an unconditional right to a hearing on
2
The appellant also filed a motion for an extension of time to file a supplement to his
petition for review. Petition for Review (PFR) File, Tab 9. The Clerk of the Board
granted this extension, as well as two additional extensions of time, to allow the
appellant more time to supplement his petition for review. PFR File, Tabs 10, 12, 15.
The third extension notified the appellant that any supplement had to be filed on or
before November 2, 2015, and that no further filing extensions would be granted. PFR
File, Tab 15. On November 2, 2015, the Clerk of the Board denied the appellant’s
fourth request for an extension of time and he did not file a supplement to his petition
for review. PFR File, Tabs 16-17.
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the merits of his claim. Downs v. Department of Veterans Affairs, 110 M.S.P.R.
139, ¶¶ 17-18 (2008), cited with approval in Baney v. Merit Systems Protection
Board, 415 F. App’x 244, 246 (Fed. Cir. 2011).
¶5 Here, even though the appellant was provided an opportunity both below
and on review to submit additional evidence and argument to show that the
agency’s decision was based on his status as a veteran or the mere fact of his
prior uniformed service, he has not described the protected right or benefit that he
was allegedly denied because of his military status. IAF, Tab 1; PFR File, Tab 8.
Rather, and as the administrative judge correctly found, the appellant’s only claim
is that the agency’s action is a “violation of rights under USERRA.” Our
reviewing court, in a nonprecedential but nonetheless illustrative opinion, has
observed that, under the Board’s deferential standard, the right to a hearing does
not attach “simply because a claimant files a claim with the Board that he
denominates as a USERRA claim[,]” as the appellant has done in the instant
appeal, but instead “only attaches after a USERRA claimant makes a nonfrivolous
allegation of Board jurisdiction.” Baney, 415 F. App’x at 246 (citing
Downs, 110 M.S.P.R. 139, ¶ 18). Thus, while it is undisputed that the appellant
has former military service, his mere citation to USERRA and his claim that he is
“attempting to do more than just ‘state USERRA,’” without more, is insufficient
to entitle him to a hearing on his claim. IAF, Tab 1; ID at 3-4; see Baney,
415 F. App’x at 246 (citing Downs, 110 M.S.P.R. 139, ¶ 18).
¶6 Accordingly, because the appellant has failed to provide any additional
evidence or argument on review regarding his USERRA claim, we find that the
administrative judge correctly determined that the appellant failed to present
nonfrivolous allegations of fact sufficient to establish the Board’s jurisdiction
over this appeal.
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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
title 5 of the U.S. 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 U.S. 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.