NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3194
JANET E. JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Janet E. Jones, of Fremont, California, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3194
JANET E. JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in
DE4324080396-I-1.
__________________________
DECIDED: October 13, 2009
__________________________
Before NEWMAN, PLAGER, and MOORE, Circuit Judges.
PER CURIAM.
Janet E. Jones petitions for review of a decision of the Merit Systems Protection
Board (Board) dismissing her appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) and the Veterans Employment
Opportunities Act of 1998 (VEOA). 1 We affirm.
1
Jones v. Dep’t of the Air Force, No. DE-4324-08-0396-I-1 (M.S.P.B. Oct.
8, 2008) (initial decision); Jones v. Dep’t of the Air Force, No. DE-4324-08-0396-I-1
(M.S.P.B. Feb. 12, 2009) (final order denying petition for review).
Ms. Jones served in the United States Air Force Reserve. The events that form
the basis for Ms. Jones’s claim occurred in 1993. She applied for and was selected for
a civilian position with the Air Force (agency). Several days before she was scheduled
to enter on duty, representatives from the Office of Personnel Management (OPM)
informed the agency that Ms. Jones had been improperly awarded a five-point veterans’
preference. Without those points, her examination score was too low to qualify for the
position. The agency rescinded the job offer, and Ms. Jones was left unemployed
because she had already resigned from her previous position.
Ms. Jones pursued various avenues of relief, including a complaint filed with the
Department of Labor. The Department concluded that OPM and the agency had erred
in determining that she did not qualify for veterans’ preference and was ineligible for the
position, but the Department was unable to persuade OPM and the agency that their
position was incorrect. Eventually, Ms. Jones’s claim was referred to the Office of
Special Counsel, which after reviewing her case informed her that it would not seek
corrective action under USERRA.
Ms. Jones filed an appeal with the Board, which dismissed her appeal. We
review a decision of the Board to determine, among other things, whether it is arbitrary,
capricious, an abuse of discretion, not in accordance with law, or unsupported by
substantial evidence. See 5 U.S.C. § 7703(c).
Because Ms. Jones’s claim arose before the 1994 effective date of USERRA, the
substantive provisions of USERRA do not apply to her claim. See Fernandez v. Dep’t
of the Army, 234 F.3d 553, 557 (Fed. Cir. 2000). The Board, however, has authority
under USERRA to adjudicate her claim under a predecessor statute, the Vietnam Era
2009-3194 2
Veterans’ Readjustment Assistance Act of 1974 (VRRA). See id. In 1993 the VRRA
provided that “[a]ny person who seeks [employment with the federal government] shall
not be denied hiring . . . or other incident or advantage of employment because of any
obligation as a member of a Reserve component of the Armed Forces.” 38 U.S.C.
§ 4301(b)(3) (1988 & Supp. V). Thus, in order to state a claim under the VRRA, Ms.
Jones must allege that the agency retracted her job offer due to her membership in the
Reserves. See Monroe v. Standard Oil Co., 452 U.S. 549 (1981).
The essence of Ms. Jones’s claim is that the agency’s decision not to hire her
was based on an erroneous determination regarding her veterans’ preference rights.
She also alleges that the agency intended to hire a previously displaced employee for
the position. As the Board correctly found, neither of these allegations states a claim for
discrimination based on her Reserve status. Therefore, the Board did not err in
dismissing her claim under USERRA and the VRRA.
Ms. Jones’s allegation that her veterans’ preference rights were violated is the
type of claim that is typically brought under the VEOA. Unfortunately, the VEOA does
not apply retroactively to conduct that occurred before the VEOA’s enactment on
October 31, 1988. Lapuh v. Merit Sys. Prot. Bd., 284 F.3d 1277, 1282 (Fed. Cir. 2002).
Thus the Board correctly determined that it had no authority to adjudicate a VEOA claim
in Ms. Jones’s case. Though we are left with the distinct impression that Ms. Jones was
not properly treated by the agency, as the Department of Labor determined, the
available law does not permit us to do anything but affirm.
2009-3194 3
COSTS
Each party shall bear its own costs.
2009-3194 4