Stoglin v. Merit Systems Protection Board , 640 F. App'x 864 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COREY DEMOND STOGLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3215
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-3330-13-1464-B-1, SF-3330-13-1464-I-1.
______________________
Decided: January 13, 2016
______________________
COREY DEMOND STOGLIN, Minneapolis, MN, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
2 STOGLIN v. MERIT SYS. PROT. BD.
Petitioner Corey Stoglin appeals the final decision of
the Merit Systems Protection Board (“the Board”) dis-
missing his appeal for lack of subject matter jurisdiction.
See Stoglin v. Dep’t of Air Force, No. SF-3330-13-1464-B-
1, 2015 WL 4166462 (M.S.P.B. July 9, 2015). For the
reasons set forth below, this court affirms.
BACKGROUND
Mr. Stoglin applied for the position of Equal Employ-
ment Manager with the Hawaii Air National Guard
(“HANG”) that was announced under the authority set
forth in 32 U.S.C. § 709 (2012). 1 After the Office of Per-
sonnel Management (“OPM”) 2 referred its initial selection
of eligible candidates to the HANG, it reevaluated wheth-
er awarding a veteran employment preference was appro-
priate because 32 U.S.C. § 709(g) precludes awarding
veteran’s preference. Resp’t’s App. 33–34; see 32 U.S.C.
§ 709(g) (“Sections 2108, 3502, 7511, and 7512 of title 5 do
not apply to a person employed under this section.”); 5
U.S.C. § 2108 (veteran’s preference statute). Based on its
reevaluation, OPM determined the job announcement was
incorrect. Resp’t’s App. 33. As a result, OPM released
“[a] new Vacancy Announcement . . . without mention of
veteran’s preference, and the pool of candidates was re-
rated without veteran’s preference.” Id. at 34 (citation
omitted). In January 2011, OPM notified Mr. Stoglin that
his application was received, but that he was not among
the best-qualified candidates and his name was not
referred to the HANG for consideration.
1 The record does not disclose the date that Mr.
Stoglin filed his application.
2 Mr. Stoglin stated in his Petition for Appeal that
“OPM conducted a search on behalf of [the] [HANG].”
Resp’t’s App. 11 (first alteration in original) (citation
omitted).
STOGLIN v. MERIT SYS. PROT. BD. 3
In July 2013, Mr. Stoglin filed an appeal with the
Board regarding his non-selection, which was construed
as a claim under the Veterans Employment Opportunities
Act of 1998 (“VEOA”). See Stoglin v. Dep’t of Air Force,
No. SF-3330-13-1464-I-1 (M.S.P.B. Dec. 6, 2013) (Resp’t’s
App. 31–42). During an August 2013 telephonic confer-
ence call, Mr. Stoglin also suggested his appeal was a
Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) claim. Mr. Stoglin alleged “his
veteran status [as a traditional reservist] should have
given him a hiring preference, and because it was not
applied, a nonveteran was hired instead.” Resp’t’s App.
33.
Initially, an administrative judge within the Board
determined that the Board did not have jurisdiction under
the USERRA or the VEOA and dismissed Mr. Stoglin’s
appeal. See generally id. at 34–37. However, Mr. Stoglin
sought review of the administrative judge’s dismissal, and
the Board granted his petition and remanded the case for
further proceedings on Mr. Stoglin’s USERRA claim. 3 See
Stoglin v. Dep’t of Air Force, No. SF-3330-13-1464-I-1
(M.S.P.B. Sept. 23, 2014) (Resp’t’s App. 21–30). The
Board determined that, while Mr. Stoglin’s allegations
were conclusory, they were “sufficient to establish Board
jurisdiction over his USERRA claim.” Resp’t’s App. 29
(citation omitted).
On remand, the administrative judge granted the
United States Department of the Air Force’s (“Agency”)
motion to dismiss for lack of Board jurisdiction. See
Stoglin v. Dep’t of Air Force, No. SF-3330-13-1464-B-1
(M.S.P.B. Jan. 21, 2015) (Resp’t’s App. 8–20). The admin-
istrative judge determined that, “[a]lthough not raised in
the [i]nitial [a]ppeal, the [A]gency’s motion on [r]emand
3 Mr. Stoglin’s VEOA claim was ultimately dis-
missed for being untimely filed. See Resp’t’s App. 23–28.
4 STOGLIN v. MERIT SYS. PROT. BD.
raises a fundamental question of whether [Mr. Stoglin’s]
USERRA claims concerning actions within the authority
of the [HANG] . . . fall within the Board’s jurisdiction or
should properly be within the jurisdiction of the state
court.” Resp’t’s App. 11. In considering this question, the
administrative judge quoted the applicable provision of
USERRA, which states in relevant part that
(A) Except as provided in subparagraphs (B) and
(C), the term “employer’’ means any person,
institution, organization, or other entity that
pays salary or wages for work performed or
that has control over employment opportuni-
ties, including— . . . (ii) the Federal Govern-
ment; (iii) a State; . . . (v) a person,
institution, organization, or other entity that
has denied initial employment in violation of
section 4311.
(B) In the case of a National Guard technician
employed under section 709 of title 32, the
term “employer” means the adjutant general
of the state in which the technician is em-
ployed.
Id. at 11–12 (quoting 38 U.S.C. § 4303(4)(A), (B)). The
administrative judge determined “under a plain reading
of the statute, the USERRA claim by a National Guard
Technician [] against the employing state agency is
properly before the appropriate state court where the
state agency is located.” Id. at 12. Thus, Mr. Stoglin’s
“USERRA [claim] would properly be before the state
courts of Hawaii, not the Board.” Id.
Mr. Stoglin appealed the administrative judge’s re-
mand decision to the Board, which affirmed the adminis-
trative judge’s dismissal for lack of jurisdiction over Mr.
Stoglin’s USERRA claim. See Stoglin, 2015 WL 4166462at *2. The Board noted the position Mr. Stoglin applied
for with the HANG “was advertised as a nondual status
STOGLIN v. MERIT SYS. PROT. BD. 5
position.” Id. (citations omitted). It observed that “[t]he
employment of such nondual status employees is author-
ized by 10 U.S.C. § 10217(a), and the incumbents are
civilian employees.” Id. (citing 10 U.S.C. § 10217(a)). The
Board further noted that, “[a]lthough they are employees
of the Department of Defense, and thus considered federal
employees for most purposes, National Guard civilian
technicians are considered state employees for USERRA
purposes.” Id. As a result, the Board held that Mr.
Stoglin’s “USERRA claim against the [HANG] [was] not
properly before the Board and [] dismiss[ed] it for lack of
jurisdiction.” Id.The Board found support for its conclusion in the
United States Department of Labor’s regulations that
implement USERRA. It observed that “‘[a] National
Guard civilian technician is considered a State employee
for USERRA purposes, although he or she is considered a
Federal employee for most other purposes.’” Id. (altera-
tion in original) (quoting 20 C.F.R. § 1002.306). The
Board stated these regulations explain that “‘[a]n action
brought against a State Adjutant General, as an employer
of a civilian National Guard technician, is considered an
action against a State for purposes of determining which
court has jurisdiction.’” Id. (alteration in original) (quot-
ing 20 C.F.R. § 1002.305(d)). Thus, the Board concluded
that “an action under USERRA against a state ‘may be
brought in a State court of competent jurisdiction accord-
ing to the laws of the State.’” Id. (quoting 20 C.F.R.
§ 1002.305(b)).
Mr. Stoglin timely appealed. This court possesses ju-
risdiction to review the Board’s final decision pursuant to
28 U.S.C. § 1295(a)(9) (2012).
6 STOGLIN v. MERIT SYS. PROT. BD.
DISCUSSION
I. Standard of Review
“Whether the Board has jurisdiction to adjudicate a
particular appeal is a question of law, which we review de
novo.” Herman v. Dep’t of Justice, 193 F.3d 1375, 1378
(Fed. Cir. 1999) (citation omitted). However, “we are
bound by the [administrative judge’s] factual determina-
tions [that form the basis of the jurisdiction determina-
tion] unless those findings are not supported by
substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154
F.3d 1313, 1316 (Fed. Cir. 1998). “Substantial evidence is
more than a mere scintilla. It means such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB, 305
U.S. 197, 217 (1938) (citations omitted).
II. The Board Did Not Possess Jurisdiction over Mr.
Stoglin’s USERRA Claim
Mr. Stoglin argues the “USERRA was not applied as
liberally as Congress intended . . . [and the Board] failed
to apply the law correctly and never addressed many of
the issues of [his] case . . . .” Pet’r’s Br. 1. Mr. Stoglin
also contends the Board’s decision failed to consider “[t]he
fact that the adverse action taken by the [A]gency was a
result of retaliation by an [A]gency official who violated
USERRA.” Id.The Board did not err in its determination that it
lacked jurisdiction to hear Mr. Stoglin’s USERRA claims.
As explained by the Board, the USERRA explicitly states
“‘[i]n the case of a National Guard technician employed
under section 709 of [T]itle 32 [of the United States Code],
the term ‘employer’ means the adjutant general of the
State in which the technician is employed.’” Stoglin, 2015
WL 4166462 at *2 (first alteration in original) (quoting 38
U.S.C. § 4303(4)(B)). In Mr. Stoglin’s case, the position he
applied for with the HANG was announced “under the
STOGLIN v. MERIT SYS. PROT. BD. 7
authority set forth in 32 U.S.C. § 709,” thus, the “employ-
er” was the State Adjutant General of Hawaii. Resp’t’s
App. 33; see also id. at 11 (discussing the job announce-
ment submitted with Mr. Stoglin’s Petition for Appeal to
the Board).
This court has previously stated the procedure for
“‘[e]nforcement of [USERRA] rights with respect to a
State or private employer’ is set out in 38 U.S.C. § 4323,
which provides for district court jurisdiction over actions
against a state commenced by the United States, and
state court jurisdiction over actions against a state com-
menced by a person.” Asatov v. Merit Sys. Prot. Bd., 595
F. App’x 979, 982 (Fed. Cir. 2014) (unpublished) (altera-
tions in original). This court has also stated “[t]he Na-
tional Guard federal regulations explain that ‘[a]n action
brought against a State Adjutant General, as an employer
of a civilian National Guard technician, is considered an
action against a State for purposes of determining which
court has jurisdiction.’” Id. (second alteration in original)
(quoting 20 C.F.R. § 1002.305(d)).
Because Mr. Stoglin’s claim is against the State Adju-
tant General of Hawaii, as the employer of civilian Na-
tional Guard technicians, he must seek resolution of his
claim in Hawaii state court. See Asatov, 595 F. App’x at
982 (“[T]he scheme of the National Guard Technicians Act
is to create the technicians as nominal federal employees
for a very limited purpose and to recognize the military
authority of the states through their Governors and
Adjutants General to employ, command and discharge
them.” (citation omitted)); 38 U.S.C. § 4323(b)(2).
CONCLUSION
Because the Board properly determined that it did not
possess jurisdiction over Mr. Stoglin’s USERRA claims,
we need not address his arguments as to the merits of his
case. For the reasons set forth above, the final decision of
8 STOGLIN v. MERIT SYS. PROT. BD.
the Merit Systems Protection Board dismissing Mr.
Stoglin’s case for lack of subject matter jurisdiction is
AFFIRMED
COSTS
Each party shall bear its own costs.