Lillie M. Middlebrooks v. Social Security Administration ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIE M. MIDDLEBROOKS, DOCKET NUMBER
Appellant, PH-4324-14-0554-I-1
v.
SOCIAL SECURITY DATE: September 22, 2014
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Lillie M. Middlebrooks, Fairfax, Virginia, pro se.
Stephen Ball and Timothy Patrick Reiley, Philadelphia, Pennsylvania, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 This appeal originates from a February 2014 Final Order denying the
appellant’s Veterans Employment Opportunities Act of 1998 nonselection claim.
MSPB Docket No. PH-3330-13-0012-I-1, Final Order (Feb. 28, 2014). In the
decision, the Board forwarded a separate claim for docketing under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified at 38 U.S.C. §§ 4301-4333) (USERRA). Final Order at 3. In March
2014, the administrative judge issued an acknowledgment order, ordering the
appellant to file a statement within 10 days indicating whether she wished to file
her USERRA appeal directly with the Board or whether she wished Board
proceedings to be delayed in order for her to file a complaint with the Department
of Labor (DOL). Initial Appeal File (IAF), Tab 2 at 2. The appellant did not
respond. In July 2014, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 3, Initial Decision (ID).
The appellant has filed a timely petition for review alleging, inter alia, that she
was not hired due to her status as a disabled veteran, and that she is entitled to a
hearing. Petition for Review (PFR) File, Tab 1 at 4. The agency has responded
in opposition to the petition for review. PFR File, Tab 3.
¶3 It is well settled that an appellant must receive explicit information on what
is required to establish an appealable jurisdictional issue. See, e.g., Burgess v.
Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The
March 2014 acknowledgment order outlined the requirements for establishing
Board jurisdiction over a USERRA claim. IAF, Tab 3. On review, the appellant
claims that she did not receive the order. PFR File, Tab 1 at 6. The
acknowledgment order was served electronically upon the appellant. IAF, Tab 2.
However, the appellant had not registered to e-file in the current appeal at the
3
time the order was issued and had therefore not consented to electronic service.
See 5 C.F.R. § 1201.14(e)(5) (registration as an e-filer applies only to a single
appeal or proceeding as well as certain related proceedings not applicable here).
Thus, the order is not deemed to have been received based upon status as an
e-filer. See Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5
(2009) (documents are deemed received by e-filers on the date of electronic
submission). Additionally, unlike appellants who had been registered as e-filers,
the appellant was not responsible for monitoring the e-Appeal system at the time
the order was issued. See 5 C.F.R. § 1201.14(j)(3). Accordingly, we accept the
appellant’s assertion that she did not receive the order.
¶4 An administrative judge’s failure to provide an appellant with proper
Burgess notice can be cured if the initial decision itself puts the appellant on
notice of the requirements to establish jurisdiction. Mapstone v. Department of
the Interior, 106 M.S.P.R. 691, ¶ 9 (2007). The Board will then determine
whether it has jurisdiction based upon the appellant’s allegations in the petition
for review. Id. In this case, the initial decision outlined the requirements for
establishing Board jurisdiction in a USERRA discrimination appeal. ID at 2-3.
We therefore consider the petition for review to determine whether jurisdiction
has been established.
¶5 To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
allege that: (1) she performed duty or has an obligation to perform duty in a
uniformed service of the United States; (2) the agency denied her 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. Hillman v. Tennessee Valley
Authority, 95 M.S.P.R. 162, ¶ 5 (2003). The Board will broadly and liberally
construe a claim under USERRA to determine whether the appellant has made
nonfrivolous allegations of jurisdiction. Id. The appellant argues that the agency
did not refer her application to the selecting official because she is a disabled
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veteran and that she was discriminated against based on her affiliation with the
military. PFR File, Tab 1 at 4, 8. We find that these allegations are sufficient to
constitute a nonfrivolous claim under 38 U.S.C. § 4311(a). See Searcy v.
Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding that despite the
fact that the appellant’s allegations below were vague and lacking specificity, he
established jurisdiction over his USERRA claim by alleging that he performed
duty in a uniformed service of the United States, the agency was aware of his
prior uniformed service, and the agency denied him employment in a position
because of his prior uniformed service).
¶6 The appellant has indicated that she wants a hearing and has not stated that
she has a pending DOL complaint. PFR File, Tab 1. Therefore, the appellant is
entitled to a remand for further development of the record, her requested hearing,
and adjudication on the merits. See Downs v. Department of Veterans
Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008) (once an appellant has established
Board jurisdiction over her USERRA claim, she has an unconditional right to a
hearing on the merits of the claim).
ORDER
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.