Durr v. MSPB

Case: 20-2131 Document: 47 Page: 1 Filed: 02/02/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN DURR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-2131
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-17-0324-I-1.
______________________
Decided: February 2, 2021
______________________
STEPHEN DURR, Chicago, IL, pro se.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by TRISTAN L. LEAVITT,
KATHERINE MICHELLE SMITH.
______________________
Before PROST, Chief Judge, CLEVENGER and HUGHES,
Circuit Judges.
Case: 20-2131 Document: 47 Page: 2 Filed: 02/02/2021
2 DURR v. MSPB
PER CURIAM.
Mr. Stephen Durr, appearing pro se, appeals a final de-
cision of the Merit Systems Protection Board (“MSPB”)
which dismissed for lack of jurisdiction Mr. Durr’s com-
plaint under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”). Durr v.
United States Postal Serv., MSPB Docket No. CH-4324-17-
0324-I-1 (Initial Dec., May 19, 2017; Order, Aug. 20, 2020).
Mr. Durr argues that the MSPB erred in dismissing his
complaint for failure to make a nonfrivolous allegation in
support of the third element required to establish the
MSPB’s jurisdiction under USERRA. Counsel for the
MSPB agrees that Mr. Durr’s pleadings before the MSPB
made the required allegations. We agree with the parties
that Mr. Durr made the allegations required of him to es-
tablish the MSPB’s jurisdiction under USERRA, and we ac-
cordingly reverse the final judgment of the MSPB and
remand for further proceedings.
BACKGROUND
Mr. Durr previously served in the U.S. Army, and was
honorably discharged on January 8, 1993 for medical rea-
sons with a service-connected physical disability rating of
30 percent. [SApp’x 47, 52–53.] 1 In March 1994, Mr. Durr
was hired by the United States Postal Service (“USPS”) as
a full-time Mailhandler at the Chicago Bulk Mail Center in
Forest Park, Illinois. Beginning on January 16, 1996, Mr.
Durr’s supervisor at USPS recorded Mr. Durr as being ab-
sent without leave (“AWOL”) from his position. [SApp’x 7.]
By written notice dated April 24, 1996, Mr. Durr’s supervi-
sor charged him with being AWOL since January 16 and
proposed his removal. Mr. Durr did not respond to this
1 Citations to “SApp’x __” refer to pages of the sup-
plemental appendix appended to respondent’s response
brief.
Case: 20-2131 Document: 47 Page: 3 Filed: 02/02/2021
DURR v. MSPB 3
notice. Id. On May 16, 1996, USPS issued a written deci-
sion sustaining Mr. Durr’s removal from his position effec-
tive June 1, 1996. Id. Because Mr. Durr is a preference-
eligible disabled veteran, the USPS removal decision in-
cluded a notice to Mr. Durr that he could appeal his re-
moval to the MSPB within 30 days of its effective date. Id.
Mr. Durr appealed his removal to the MSPB on May
14, 2015, almost 19 years after the effective date of the re-
moval. [SApp’x 7.] The MSPB administrative judge dis-
missed Mr. Durr’s challenge as untimely filed and lacking
a showing of good cause to waive the time limits. On Janu-
ary 6, 2016, the full Board affirmed the initial decision. Mr.
Durr appealed to this Court, which subsequently dismissed
his appeal on May 5, 2016 for failure to prosecute. Durr v.
Merit Sys. Prot. Bd., No. 2016-1700 (Fed. Cir. May 5, 2016).
Mr. Durr filed the instant MSPB appeal on April 10,
2017, seeking relief under USERRA. [SApp’x 8, 18–38.]
USERRA does not impose any time limits for filing an
MSPB appeal. 38 U.S.C. § 4327(b); 5 C.F.R. § 1208.12; see
also Erickson v. United States Postal Serv., 636 F.3d 1353,
1358 (Fed. Cir. 2011). To establish the MSPB’s jurisdiction
over an appeal alleging a violation of 38 U.S.C. § 4311(a),
Mr. Durr was required to make nonfrivolous allegations
that: “(1) [he] performed, applied to perform, or [was] obli-
gated to perform duty in a uniformed service of the United
States; (2) [he] lost a benefit of employment or any of the
rights protected by USERRA; and (3) the performance, ap-
plication to perform, or obligation to perform duty in the
uniformed service was a substantial or motivating factor in
the loss of the right or benefit.” Yates v. Merit Sys. Prot.
Bd., 145 F.3d 1480, 1484 (Fed. Cir. 1998); [SApp’x 40–42.]
The MSPB administrative judge directed Mr. Durr to
file a statement addressing these jurisdictional require-
ments. [SApp’x 45.] In response, Mr. Durr alleged that his
psychologist had contacted USPS on December 17, 1995 to
request that Mr. Durr be placed on medical leave, and that
Case: 20-2131 Document: 47 Page: 4 Filed: 02/02/2021
4 DURR v. MSPB
USPS had “deliberately disregarded” that request.
[SApp’x 48–50.] Mr. Durr further alleged that USPS’s “de-
liberate and intentional disregard for the Plaintiff[’s] psy-
chologist[’s] request . . . [was] for reason of the Plaintiff[’s]
status of being a 10-point, military service-connected disa-
bled veteran[,]” and that “if another employee had made a
request for leave for medical reasons, that such would have
been granted.” Id. Mr. Durr further alleged that USPS’s
actions constituted discrimination on the basis of his ser-
vice-connected disability. Id.In an initial decision issued on May 19, 2017, the ad-
ministrative judge dismissed Mr. Durr’s appeal for lack of
jurisdiction. The administrative judge found that Mr. Durr
had satisfied the first two jurisdictional requirements. But
the administrative judge concluded that Mr. Durr had not
satisfied the third jurisdictional requirement, stating that
Mr. Durr “did not . . . allege the denial of FMLA [leave] was
due to the performance of a duty [or] obligation to perform
duty in the uniform service. Rather, he claims the agency
denied him FMLA leave based on a medical condition,
which is not protected under USERRA.” [SApp’x 9–10.]
Following the administrative judge’s initial decision, Mr.
Durr petitioned the full Board to review the initial decision.
Mr. Durr later withdrew this request, and on August 20,
2020, the Clerk of the Board granted Mr. Durr’s request to
withdraw. The Clerk then issued an order closing the case
and noting that, due to the withdrawn petition for review
by the full Board, the administrative judge’s initial decision
is the Board’s final decision in this case. [SApp’x 1.] Mr.
Durr then timely appealed to this Court.
DISCUSSION
This is an appeal from a final decision of the MSPB. We
have jurisdiction under 28 U.S.C. § 1295(a)(9) over final de-
cisions of the MSPB arising under 5 U.S.C. § 7703(b)(1) and
Case: 20-2131 Document: 47 Page: 5 Filed: 02/02/2021
DURR v. MSPB 5
7703(d). 2 The MSPB’s determination of its own jurisdiction
is a legal question which we review de novo. See, e.g., Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
The MSPB’s jurisdiction is “limited to those areas specifi-
cally granted by statute or regulation.” Cowan v. United
States, 710 F.2d 803, 805 (Fed. Cir. 1983). The burden of
establishing the MSPB’s jurisdiction lies with the peti-
tioner, who must “make a nonfrivolous allegation of juris-
dictional facts” required to establish MSPB’s jurisdiction.
Lourens v. Merit Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed.
Cir. 1999); 5 C.F.R. § 1201.57(b).
USERRA, codified at 38 U.S.C. §§ 4301–4335, affords
various protections to current and former military service
members with respect to their employment, and prohibits
employers from discriminating against their employees be-
cause of their military service. 38 U.S.C. § 4311(a) provides
in relevant part:
A person who is a member of, applies to be a mem-
ber of, performs, has performed, applies to perform,
or has an obligation to perform service in a uni-
formed service shall not be denied initial employ-
ment, reemployment, retention in employment,
promotion, or any benefit of employment by an em-
ployer on the basis of that membership, application
2 We agree with the Government’s explanation that
although Mr. Durr made allegations of disability discrimi-
nation before the MSPB, see e.g. [SApp’x 10, 18, 23, 27,
50], as a jurisdictional matter these allegations cannot be
considered in the context of a USERRA complaint, which is
limited to adjudication of discrimination claims based on
military status. Jolley v. Dep’t of Housing and Urban Dev.,
299 Fed. App’x 969, 972 (Fed. Cir. 2008). A USERRA case
cannot be a “mixed case” including both types of claims, be-
cause that would deprive our Court of jurisdiction. Perry v.
Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017).
Case: 20-2131 Document: 47 Page: 6 Filed: 02/02/2021
6 DURR v. MSPB
for membership, performance of service, or obliga-
tion.
As discussed, to establish the MSPB’s jurisdiction over
an appeal alleging a violation of 38 U.S.C. § 4311(a), Mr.
Durr was required to make nonfrivolous allegations that:
“(1) [he] performed, applied to perform, or [was] obligated
to perform duty in a uniformed service of the United States;
(2) [he] lost a benefit of employment or any of the rights
protected by USERRA; and (3) the performance, applica-
tion to perform, or obligation to perform duty in the uni-
formed service was a substantial or motivating factor in the
loss of the right or benefit.” Yates, 145 F.3d at 1484. We
have previously held that the MSPB should take a “liberal
approach in determining whether jurisdiction exists under
USERRA.” Id. So long as they are nonfrivolous, the relative
weakness of the appellant’s initial factual allegations re-
lated to jurisdiction should not serve as a basis to dismiss
a USERRA claim, and should instead serve as a basis to
deny the claim on the merits if the appellant fails to suffi-
ciently develop the allegations. Patterson v. Dep’t of Inte-
rior, 424 F.3d 1151, 1160 (Fed. Cir. 2005).
We agree with the administrative judge that Mr. Durr
satisfied the first two elements of the jurisdictional test,
and the MSPB does not contest that determination in this
appeal. We further agree with Mr. Durr and the MSPB that
the administrative judge erred in concluding that Mr. Durr
failed to meet the third element of the jurisdictional test.
The administrative judge correctly observed that some of
Mr. Durr’s allegations allege discrimination on the basis of
his disability. [SApp’x 9–10.] And we agree with the ad-
ministrative judge’s statement that USERRA proscribes
discrimination on the basis of a veteran’s performance of
military duty, not on the basis of disability (even if that
disability arose from the performance of military duty).
[SApp’x 10 (citing McBride v. U.S. Postal Service, 78
M.S.P.R. 411, 415 (1998)).] However, the administrative
judge erred in failing to credit Mr. Durr’s allegations which
Case: 20-2131 Document: 47 Page: 7 Filed: 02/02/2021
DURR v. MSPB 7
plainly allege discrimination because of his status as a vet-
eran, rather than because of his service-connected disabil-
ity. Most notably, Mr. Durr alleged that USPS’s “deliberate
and intentional disregard for the Plaintiff[’s] psycholo-
gist[’s] request [that Mr. Durr be put on medical leave] . . .
[was] for reason of the Plaintiff[’s] status of being a 10-
point, military service-connected disabled veteran[,]” and
that “if another employee had made a request for leave for
medical reasons, that such would have been granted.”
[SApp’x 48–50.] We agree with Mr. Durr and the MSPB
that these allegations are nonfrivolous and plainly satisfy
the third element of the USERRA jurisdictional test. Ac-
cordingly, we conclude that the MSPB has jurisdiction over
Mr. Durr’s instant appeal.
CONCLUSION
For the reasons discussed, we hold that Mr. Durr
raised allegations sufficient to establish the MSPB’s juris-
diction over his appeal under USERRA. The final decision
of the MSPB dismissing Mr. Durr’s complaint for lack of
jurisdiction is reversed, and the matter is remanded to the
MSPB for further proceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.