providing that U.S. Postal Service employees are excluded from the application of 5 U.S.C. § 6323
How later courts described this case
- providing that U.S. Postal Service employees are excluded from the application of 5 U.S.C. § 6323
- providing that dismissal for failure to state a claim is appropriate only if, taking the appellant’s allegations as true and drawing all reasonable inferences in his favor, he cannot prevail as a matter of law
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY TRAVIS CREDLE, DOCKET NUMBER
Appellant, DC-3443-19-0256-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 31, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffery Travis Credle , Waldorf, Maryland, pro se.
Candace D. Embry , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) for failure to state a claim upon
which relief can be granted. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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. Except as expressly MODIFIED to
find that the agency’s Employee and Labor Relations Manual (ELM) does not
provide a basis for relief, we AFFIRM the initial decision.
On review, the appellant, a retired U.S. Postal Service employee, renews
his arguments that he is entitled to an extra 66 days of paid military leave
pursuant to O’Farrell v. Department of Defense, 882 F.3d 1080 (Fed. Cir. 2018).
Initial Appeal File (IAF), Tab 1 at 1, 5; Petition for Review File, Tab 1 at 2.
As set forth in the initial decision, the appellant cannot obtain relief under
5 U.S.C. § 6323, the statute addressed in O’Farrell, because U.S. Postal Service
employees are excluded from the application of 5 U.S.C. § 6323. IAF, Tab 10
at 3; see Welshans v. U.S. Postal Service, 550 F.3d 1100, 1102-03 (Fed. Cir.
2008) (providing that U.S. Postal Service employees are excluded from the
application of 5 U.S.C. § 6323).
The appellant also argued that the agency’s ELM § 517.431 provides for
the leave to which he claims he is entitled, but the administrative judge did not
address whether the appellant could obtain relief under the ELM. IAF, Tab 9
at 2. Although 5 U.S.C. § 6323 does not apply to employees of the U.S. Postal
Service, the agency’s employees are entitled to military leave under the ELM.
Welshans, 550 F.3d at 1103. In examining a claim for relief under USERRA, the
Board will enforce employee rights derived from agency rules, regulations,
3
procedures, and collective bargaining agreements. Miller v. U.S. Postal Service,
105 M.S.P.R. 89, ¶ 11 (2007). The ELM is widely available to the public, thus
we take administrative notice of the ELM provisions provided by the agency in
the record below. 2 IAF, Tab 6 at 17-21; see Azdell v. Office of Personnel
Management, 88 M.S.P.R. 319, 323 (2001) (providing that the Board may take
administrative notice of public documents).
We have considered the appellant’s argument that ELM § 517.431 entitles
him to 22 additional days of military leave per fiscal year, but find that he has
failed to state a claim upon which relief can be granted in this respect. To obtain
relief under USERRA, the appellant must show that, as a result of the agency’s
improper administration of military leave, he was forced to use annual leave or
leave without pay in order to fulfill his military duty. Miller, 105 M.S.P.R. 89,
¶ 12. Under ELM § 517.431, an employee who is a member of the National
Guard is only granted additional paid military leave “if they are ordered by
appropriate authority to provide military aid to enforce the law of their contracted
state or their chartered jurisdiction” as set forth in section 517.431a1 and will not
be granted leave “when military orders do not specify one or more of the duties
and statutory requirements referenced in 517.431a1[.]” The appellant’s orders
calling him to active military duty during the relevant time period only specify
that the appellant is ordered to full-time National Guard duty for “Operational
Support” and do not specify any of the duties set forth in ELM § 517.431a1. 3
2
Although the agency provided a copy of the ELM in effect as of September 2018,
several previous versions of the ELM were in effect during the time period in which the
appellant alleges that he is entitled to additional military leave. IAF, Tab 6 at 17-21;
United States Postal Service, Employee and Labor Relations Manual ELM Archives,
https://about.usps.com/manuals/elm/elmarch.htm (last visited May 31, 2024).
However, our review of previous versions of the ELM reflect that the agency has not
made substantive changes to ELM § 517.431 during the relevant time period.
3
ELM § 517.431a1 provides, in relevant part:
Military aid to enforce the law means engagement in the suppression of
riots, violent assembly, widespread looting, and civil disorder where the
guardsman is ordered to perform state military duty under a state law that
4
IAF, Tab 5 at 10-15. Even if we accept the appellant’s allegations as true, he can
prove no set of facts in support of his claim that would entitle him to relief under
the ELM. See Alford v. Department of Defense, 113 M.S.P.R. 263, ¶ 11 (2010),
aff’d, 407 F. App’x 458 (Fed. Cir. 2011) (providing that dismissal for failure to
state a claim is appropriate only if, taking the appellant’s allegations as true and
drawing all reasonable inferences in his favor, he cannot prevail as a matter of
law). Accordingly, we affirm the dismissal of the appeal for failure to state a
claim upon which relief can be granted.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
specifically confers law enforcement powers on the guardsman or under
the authority of an executive order of the governor (or the highest
authority of the jurisdiction) pursuant to state law that specifically confers
on the governor the authority to confer law enforcement powers on
activated guardsmen.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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 Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.