Eric Williams v. Department of the Navy ( 2022 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    ERIC WILLIAMS,                                   DOCKET NUMBER
    Appellant,                   AT-4324-16-0662-I-1
    v.
    DEPARTMENT OF THE NAVY,                          DATE: August 25, 2022
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Eric Williams, North Charleston, South Carolina, pro se.
    Kristin A. Martin, Norfolk, Virginia, for the agency.
    Mary Kate DeMane, Portsmouth, Virginia, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    Tristan L. Leavitt, Member
    REMAND ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed for lack of jurisdiction his request for corrective action under the
    Uniformed Services Employment and Reemployment Rights Act of 1994
    (codified as amended at 
    38 U.S.C. §§ 4301-4335
    ) (USERRA). For the reasons
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 ad ministrative 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
    discussed below, we GRANT the appellant’s petition for re view, VACATE the
    initial decision, and REMAND the case to the regional office for further
    adjudication in accordance with this Remand Order.
    ¶2         In July 2016, the appellant filed a USERRA appeal alleging that he is a 30%
    disabled veteran and that the agency discriminated against him on the basis of
    his uniformed military service when it did not select him for the GS-9/11
    Contract Specialist position advertised under vacancy ID 1460254 (job
    announcement number EA51102-12-1460254LZ122318D). 2 Initial Appeal File
    (IAF), Tab 1 at 1-5.        The appellant requested a hearing.           
    Id. at 1
    .    The
    administrative judge issued an order informing the appellant of his jurisdictional
    burden and proof requirements and directed him to submit evidence and
    argument amounting to a nonfrivolous allegation of jurisdiction.              IAF, Tab 3
    at 2-5, 7. In response, the appellant alleged that the agency took the following
    improper actions, which led to his nonselection, because of his status as a
    veteran: (1) violated the pass over provisions of 
    5 U.S.C. § 3318
    (b); (2) failed to
    give appropriate consideration to his disability rating; (3) violated his veterans’
    preference rights under the category rating procedures; (4) inappropriately used
    Expedited Hiring Authority to make its selections for the Contract Specialist
    position; (5) failed to properly rate and rank his application; (6) failed to credit
    him with all valuable experience for the position; (7) failed to properly advertise
    the position; (8) denied him the opportunity to compete for the position; and
    (9) committed other procedural irregularities. IAF, Tabs 6, 8.
    2
    The appellant also has challenged this nonselection in two separate appeals before the
    Board under the Veterans Employment Opportunities Act of 1998. In Williams v.
    Department of the Navy, MSPB Docket No. AT-3330-16-0663-I-1, Initial Decision
    (Aug. 4, 2016), the administrative judge dismissed the appeal for lack of jurisdiction.
    The initial decision became the final decision of the Board when n either party
    petitioned for review. In Williams v. Department of the Navy, MSPB Docket
    No. DC-3330-16-0292-B-1, on remand the administrative judge denied the appellant’s
    request for corrective action, and the Board denied the appellant’s petition for revi ew of
    the remand initial decision. Williams v. Department of the Navy, MSPB Docket No.
    DC-3330-16-0292-B-1, Final Order (Aug. 25, 2022).
    3
    ¶3        In the initial decision, the administrative judge dismissed the appeal for
    lack of jurisdiction, finding that the appellant failed to make more than bare
    allegations that his rights under USERRA were violated and instead merely
    catalogued how he believed his veterans’ preference rights were violated. IAF,
    Tab 10, Initial Decision (ID).
    ¶4        The appellant has filed a petition for review of the initial decision, and the
    agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
    ¶5        Two types of cases arise under USERRA:             (1) reemployment cases, in
    which the appellant claims that an agency has not met its obligations under
    
    38 U.S.C. §§ 4312-4318
     following the appellant’s absence from civilian
    employment to perform uniformed service; and (2) “discrimination” cases, in
    which the appellant claims that an agency has taken an action prohibited by
    
    38 U.S.C. § 4311
    (a) or (b). Clavin v. U.S. Postal Service, 
    99 M.S.P.R. 619
    , ¶ 5
    (2005). The Board has adopted, and the U.S. Court of Appeals for the Federal
    Circuit has endorsed, a “liberal approach in determining whether jurisdiction
    exists under USERRA.”        Yates v. Merit Systems Protection Board, 
    145 F.3d 1480
    , 1484 (Fed. Cir. 1998); Beck v. Department of the Navy, 
    120 M.S.P.R. 504
    ,
    ¶ 8 (2014). Under this approach, the relative weakness of the specific factual
    allegations initially made by an appellant in his USERRA claim should not serve
    as the basis for dismissing the appeal for lack of jurisdiction; rather, if he fails to
    develop those allegations, his USERRA claim should be denied on the merits.
    Beck, 
    120 M.S.P.R. 504
    , ¶ 8. Thus, to establish jurisdiction over his USERRA
    claim, the appellant need only allege the following: (1) he served in the military;
    (2) he was denied initial employment, reemployment, retention in employment,
    promotion, or a benefit of employment; and (3) the denial was due to his service
    in the military. 
    Id.
    ¶6        As noted above, the administrative judge found that the appellant failed to
    establish Board jurisdiction over his USERRA claim. ID at 3. However, in light
    of the liberal pleading standard applied in such cases, we find that the appellant’s
    4
    contentions that the agency denied him initial employment on the basis of his
    status as a veteran are sufficient to establish jurisdiction over his USERRA
    appeal. See Beck, 
    120 M.S.P.R. 504
    , ¶ 8; Searcy v. Department of Agriculture,
    
    115 M.S.P.R. 260
    , ¶ 8 (2010) (finding that, although the appellant’s allegations
    were vague and lacked specificity, he established jurisdiction by alleging that the
    agency was aware of his prior uniformed service and denied him employment
    because of it, and denied him a benefit of employment when it withdrew funds
    from his civil service retirement account).
    ¶7        An appellant who establishes jurisdiction over a USERRA appeal has an
    unconditional right to a hearing if he requests one. Kirkendall v. Department of
    the Army, 
    479 F.3d 830
    , 844-46 (Fed. Cir. 2007); Searcy, 
    115 M.S.P.R. 260
    , ¶ 7.
    Because the appellant requested a hearing and made sufficient allegations under
    the liberal pleading standard applied in USERRA cases to establish jurisdiction,
    we remand the appeal for a hearing on his USERRA claim.
    ORDER
    ¶8        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:                           /s/ for
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: AT-4324-16-0662-I-1

Filed Date: 8/25/2022

Precedential Status: Non-Precedential

Modified Date: 2/22/2023