NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3385
CHARLES R. JORDAN,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
__________________________
DECIDED: March 10, 2006
__________________________
Before NEWMAN, RADER, and PROST, Circuit Judges.
PER CURIAM.
Charles R. Jordan petitions for review of the final decision of the Merit Systems
Protection Board (the “Board”) which dismissed his claim that the United States
Department of Labor (“Labor”) violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (the “USERRA”) for lack of jurisdiction. Jordan v.
Dep’t of Labor, No. SF3443050161-I-1 (M.S.P.B Sept. 2, 2005). We affirm.
BACKGROUND
Mr. Jordan was employed by the United States Postal Service (the “USPS”) as a
letter carrier, and was also a member of the United States Air Force Reserve. Mr.
Jordan was ordered to active reserve duty status in Cuba from December 14, 1994 to
March 16, 1995. Instead of seeking military leave from the USPS, Mr. Jordan
requested sick leave, annual leave, and leave without pay. Mr. Jordan’s supervisor,
believing that Mr. Jordan had deliberately misrepresented his physical condition in order
to receive paid leave from the USPS while also being paid for military service, reported
that belief to his superiors. Subsequent investigation resulted in Mr. Jordan being
charged with misrepresenting his physical abilities to perform available duties,
falsification of a form, and misrepresenting a request for leave. On July 1, 1995, Mr.
Jordan was removed from his position with the USPS based upon those charges.1 His
removal has previously been sustained twice on appeal to this court. See Jordan v.
Merit Sys. Prot. Bd., No. 00-3046, 2000 WL 380097 (Fed. Cir. Apr. 12, 2000); Jordan v.
U.S. Postal Serv., No. 03-3237, 2003 WL 22872527 (Fed. Cir. Dec. 4, 2003).
Mr. Jordan was not an employee or applicant for employment with Labor,
although Labor administers claims for compensation for work-related injuries for federal
employees under the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq.
During and subsequent to his employment with the USPS, Mr. Jordan filed a number of
claims for compensation with Labor, including claims for a right foot injury, right carpal
tunnel syndrome, right rotor cuff sprain, carpal tunnel syndrome (unspecified), left lateral
epicondylitis, mental stress, and tumors in his left colon.
On November 22, 2004, Mr. Jordan filed the present appeal to the Board,
alleging that Labor was in violation of the USERRA. On November 30, 2004, the
1
Mr. Jordan, however, asserts that he was not dismissed for cause, but
rather given disability retirement status.
05-3385 2
administrative judge ordered him to show cause as to why his appeal should not be
dismissed for lack of jurisdiction because it did not appear that Mr. Jordan had ever
been employed by Labor. In response, Mr. Jordan argued that Labor “had an improper
motive and conspired with the U.S. Air Force to be the cause of denial of benefits,” and
that his “removal as a letter carrier, were [sic] just a smoke screen for the real reason,
‘discrimination because of . . . [his] military service.’” Jordan v. Dep’t of Labor, No.
SF3443050161-I-1, slip op. at 4 (M.S.P.B. Dec. 17, 2004) (“Initial Decision”).
On December 17, 2004, the administrative judge issued an initial decision
dismissing Mr. Jordan’s appeal for lack of jurisdiction. The administrative judge noted
that the Board lacked jurisdiction over Mr. Jordan’s claims because he had neither
alleged nor shown that he was ever employed by Labor, and thus could not assert a
USERRA claim against that agency. Initial Decision, slip op. at 2-3. Additionally, the
administrative judge noted that to the extent that his claim might be read as an appeal
of his removal as a letter carrier with the USPS, that matter had already been litigated
and was barred by the doctrine of res judicata. Initial Decision, slip op. at 3-4.
Accordingly, the administrative judge dismissed for lack of jurisdiction.
Mr. Jordan filed a petition for review of the initial decision with the full Board. The
Board denied his petition for review making the administrative judge’s initial decision the
final decision of the Board.
Mr. Jordan timely sought review in this court, and we have jurisdiction under 28
U.S.C. § 1295(a)(9).
05-3385 3
DISCUSSION
The scope of judicial review of Board decisions is narrowly defined and limited by
statute. This court reviews the record and holds unlawful any “agency action, findings,
or conclusions” found to be:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(2) obtained without procedures required by law, rule, or regulation having
been followed; or
(3) unsupported by substantial evidence;
5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357,
1361 (Fed. Cir. 1998).
The USERRA prohibits discrimination in employment on the basis of military
service. The operative provision, 38 U.S.C. § 4311(a), provides that:
A person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in a
uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for membership,
performance of service, application for service, or obligation.
38 U.S.C. § 4311(a) (2000) (emphasis added). This court has held that such language
“makes clear that the ‘benefit of employment’ that cannot be lawfully deprived by an
employer is one that flows as a result of the person’s employment by the employer in
question.” Thomsen v. Dep’t of Treasury, 169 F.3d 1378, 1381 (Fed. Cir. 1999).
In this case, Mr. Jordan’s employer was the USPS. As correctly noted by the
administrative judge in the initial decision, Mr. Jordan did not allege that he was
employed by Labor or that he was an applicant for employment with Labor.
Accordingly, he has failed to raise a USERRA claim against “an employer” as required
by the statute.
05-3385 4
Additionally, to the extent that Mr. Jordan’s claim could be read as a USERRA
claim against the USPS, any relief would be barred by res judicata (i.e., claim
preclusion) because the same parties (i.e., Mr. Jordan and the USPS) previously
litigated the same issues upon “the same set of transactional facts” which led to a final
judgment on the merits of his previous claim.2 Jet, Inc. v. Sewage Aeration Sys., 223
F.3d 1360, 1362 (Fed. Cir. 2000) (citation omitted). Thus, Mr. Jordan cannot relitigate
his USERRA claim against the USPS.
CONCLUSION
The Board lacked jurisdiction to entertain Mr. Jordan’s USERRA claim against
Labor because Labor was not Mr. Jordan’s employer under 38 U.S.C. § 4311(a).
Accordingly, the Board’s final decision is affirmed.
2
The Board and this court have already denied Mr. Jordan’s USERRA
claim against the USPS after a review of the merits. Jordan v. U.S. Postal Serv., 90
M.S.P.R. 525, 527-28 (2002), 94 M.S.P.R. 482 (2003) (Table), aff’d, 82 F. App’x 42
(Fed. Cir.), reh’g denied (Jan. 13, 2004).
05-3385 5