Jolley v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM B. JOLLEY,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2014-3202
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-14-0405-I-1.
______________________
Decided: February 10, 2015
______________________
WILLIAM B. JOLLEY, Brunswick, GA, pro se.
JEFFREY LOWRY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by FRANKLIN E.
WHITE, JR.
______________________
Before REYNA, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
2 JOLLEY v. DOJ
William B. Jolley seeks review of a final order of the
Merit Systems Protection Board (“board”) denying his
request for corrective action based on alleged violations of
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335,
by the Department of Justice. See Jolley v. Dep’t of Jus-
tice, No. SF-4324-14-0405-I-1, 2014 MSPB LEXIS 5917
(Aug. 28, 2014) (“Board Decision”); Jolley v. Dep’t of
Justice, No. SF-4324-14-0405-I-1, 2014 MSPB LEXIS
2344 (Apr. 11, 2014) (“Initial Decision”). Because the
board correctly determined that the Department of Jus-
tice was not Jolley’s “employer” for purposes of USERRA,
we affirm.
BACKGROUND
Jolley is a former employee of the U.S. Department of
Housing and Urban Development (“HUD”). In 2008,
HUD transferred him from his position in Jacksonville,
Florida to a position in Boise, Idaho. J.A. 76–78. Jolley
thereafter requested that he be transferred from Boise to
a position “east of the Mississippi River,” but HUD re-
fused his request. On March 31, 2010, Jolley retired from
his position with HUD. He alleges that his retirement
was involuntary, asserting that he was forced to retire
because HUD refused to grant his transfer request.
In June 2010, Jolley filed suit in the United States
District Court for the Southern District of Georgia. He
alleged that HUD violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621–34, when it
forced him to retire. The district court dismissed Jolley’s
claim, ruling that he had failed to provide the Equal
Employment Opportunity Commission with notice of his
intent to sue and that his complaint failed to state a claim
under the ADEA upon which relief could be granted.
Jolley v. Donovan, No. CV 210-097, 2011 U.S. Dist. LEXIS
145412, at *3–4 (S.D. Ga. Dec. 19, 2011).
JOLLEY v. DOJ 3
On March 12, 2014, Jolley filed an appeal with the
board, alleging that the Department of Justice had violat-
ed his rights under USERRA. He asserted that although
he had been working at HUD, the Department of Justice
acted as his “employer” for purposes of USERRA. See
Board Decision, 2014 MSPB LEXIS 5917, at *4. In Jol-
ley’s view, the Department of Justice became responsible
for his allegedly involuntary retirement because it repre-
sented HUD in the ADEA litigation. Id. at *4. Jolley
asserted that the Department of Justice “obtained respon-
sibility” for his employment “by taking control of the
adverse action for litigation and final decisions . . . .”
Initial Decision, 2014 MSPB LEXIS 2344, at *4 (citations
and internal quotation marks omitted). *
An administrative judge of the board dismissed Jol-
ley’s appeal. The judge held that since the Department of
Justice never paid salary or wages to Jolley or exercised
any control over his employment opportunities at HUD, it
could not be considered his “employer” for purposes of a
USERRA claim. Id. at *6–7. Because USERRA only
authorizes actions against an “employer,” the administra-
tive judge concluded that the board was without jurisdic-
tion to consider Jolley’s appeal. Id. at *7.
* The Department of Justice also provided legal ad-
vice to HUD in connection with two USERRA claims
Jolley filed against HUD. See Jolley v. Dep’t of Hous. &
Urban Dev., 299 F. App’x 969, 971–73 (Fed. Cir. 2008)
(affirming a board decision rejecting Jolley’s claim that
HUD violated USERRA when it failed to select him for
several criminal investigator positions); Jolley v. Dep’t of
Hous. & Urban Dev., 299 F. App’x 966, 968 (Fed. Cir.
2008) (affirming a board decision rejecting Jolley’s claim
that HUD’s use of “dual vacancy announcements” violated
USERRA).
4 JOLLEY v. DOJ
On August 28, 2014, the board vacated the adminis-
trative judge’s initial decision, concluding that Jolley’s
appeal should not have been dismissed on jurisdictional
grounds. Board Decision, 2014 MSPB LEXIS 5917, at *7–
8. According to the board, Jolley satisfied the “liberal
pleading standard for USERRA claims” by alleging that
he served in the military and that he was denied a benefit
of employment because of that service. Id. at *8. The
board determined, however, that Jolley’s USSERA claim
failed on the merits. Because there was no showing that
the Department of Justice ever paid Jolley wages for work
performed or “exercised control over his personal em-
ployment opportunities at HUD,” it could not be consid-
ered his employer for purposes of a USERRA claim. Id. at
*10. Jolley then filed a timely appeal with this court.
DISCUSSION
Our review of a board decision is circumscribed by
statute. We can set aside such a decision only if it is: “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see Marino v. Office of Pers. Mgmt., 243
F.3d 1375, 1377 (Fed. Cir. 2001).
USERRA bars “public and private employers from
discriminating against their employees on the basis of
military service” and “guarantees non-career service
members reemployment rights upon the completion of
their military commitments.” Erickson v. U.S. Postal
Serv., 636 F.3d 1353, 1354 (Fed. Cir. 2011); see also
Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1012 (Fed.
Cir. 2001). It provides that “a member of . . . a uniformed
service shall not be denied . . . any benefit of employment
by an employer on the basis of that membership . . . .” 38
U.S.C. § 4311(a) (emphasis added). As the board correctly
determined, Jolley had no right to bring a USERRA claim
JOLLEY v. DOJ 5
against the Department of Justice because it was not his
“employer.” See Board Decision, 2014 MSPB LEXIS 5917,
at *8–10.
Under USERRA, an “employer” is defined as “any
person, institution, organization, or other entity that pays
salary or wages for work performed or that has control
over employment opportunities . . . .” 38 U.S.C.
§ 4303(4)(A). Jolley produced no evidence that the De-
partment of Justice paid him a salary or wages for work
he performed. See Board Decision, 2014 MSPB LEXIS
5917, at *9. Nor was there any showing that it exercised
control over his “employment opportunities,” 38 U.S.C.
§ 4303(4)(A), at HUD. Accordingly, the Department of
Justice does not meet the definition of an “employer”
under USERRA.
The Department of Justice represented HUD during
adjudication of the ADEA claim Jolley filed in district
court. It also provided legal advice to HUD in connection
with the appeals he filed against HUD with the board.
The Department of Justice did not, however, become
Jolley’s employer by virtue of the fact that it provided
HUD with legal representation and advice. See Initial
Decision, 2014 MSPB LEXIS 2344, at *7 (“The fact that
[the Department of Justice] represented HUD does [not]
give it ownership of, or responsibility for, that agency’s
employment relationship with [Jolley].”). Contrary to
Jolley’s assertions, providing legal counsel to HUD did not
give the Department of Justice authority to “control” his
employment. See Satterfield v. Borough of Schuylkill
Haven, 12 F. Supp. 2d 423, 438 (E.D. Pa. 1998) (conclud-
ing that individuals who had “no . . . power” over the
plaintiff could not be considered his “employers” for
purposes of USERRA); Silva v. Dep’t of Homeland Sec.,
2009 M.S.P.B. 189 ¶ 15 (2009) (emphasizing that a gov-
ernment agency will be deemed an “employer” under
USERRA only when it exerts “control” over a plaintiff’s
employment opportunities).
6 JOLLEY v. DOJ
On appeal, Jolley argues that the Department of Jus-
tice violated 5 C.F.R. § 1201.25(c) by failing to properly
respond to an acknowledgement order issued by the
board’s administrative judge. Jolley does not, however,
identify any specific documents that the Department of
Justice failed to produce in response to the acknowledg-
ment order. Jolley further contends that the Department
of Justice “has remained silent on the issues,” and has not
adequately responded to the allegations in his complaint.
We disagree. Before the board, the Department of Justice
responded directly to the merits of Jolley’s appeal, argu-
ing that it could not be held responsible under USERRA
for any adverse actions taken against him because it had
never been his employer. It explained that “it took no
action against [Jolley] because of his military status and
indeed [took] no action [against him] at all.” Board Deci-
sion, 2014 MSPB LEXIS 5917, at *10.
We have considered Jolley’s remaining arguments,
but do not find them persuasive. Accordingly, the deci-
sion of the Merit Systems Protection Board is affirmed.
AFFIRMED