UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIJAH JIMMY WILLIAMS, JR., DOCKET NUMBER
Appellant, AT-4324-15-0702-I-1
v.
DEPARTMENT OF VETERANS DATE: March 1, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elijah Jimmy Williams, Jr., Lithonia, Georgia, pro se.
Jeremy Vance Tramel, Decatur, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal filed under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant is employed as a Restoration Technician, GS-0644-09, with
the agency in Decatur, Georgia. Initial Appeal File (IAF), Tab 1 at 1, Tab 4
at 16. His initial pleading shows that he filed a USERRA complaint with the
Department of Labor (DOL) and that DOL investigated and closed out the
complaint. IAF, Tab 1 at 6-7. The appellant asserted that the full performance
level for his position is GS-11, and the agency’s failure to noncompetitively
promote him to that grade violated his rights under USERRA. Id. at 3. In
response to the agency’s motion to dismiss, IAF, Tab 4, the administrative judge
issued an order informing the appellant of his jurisdictional burden of proof, IAF,
Tab 5. When the appellant did not timely respond, the administrative judge
issued the initial decision. IAF, Tab 6, Initial Decision (ID). The administrative
judge found that the appellant exhausted his administrative remedies with DOL,
but failed to nonfrivolously allege that the agency violated his rights pursuant
3
to 38 U.S.C. § 4311(a) or (b). 2 ID at 2-4. The administrative judge dismissed the
appeal for lack of jurisdiction. ID at 4-5.
¶3 The appellant filed a petition for review. 3 Petition for Review (PFR) File,
Tab 1. On review, the appellant challenges the agency’s representation that he
had reached the full performance level for his particular position, suggesting that
the position had promotion potential to GS-11 at an earlier time, but had been
downgraded. PFR File, Tab 3 at 7. He asserts that the agency did not promote
him to GS-11 in retaliation for his union activity. Id. at 7. He also asserts that
the agency was obligated to appoint him to a position at the GS-11 level pursuant
to 38 U.S.C. § 4214(b)(1)(A). PFR File, Tab 3 at 6; see PFR File, Tab 1 at 5-6.
¶4 Based on our review, we find that the appellant has not alleged any reason
for the Board to grant his petition for review. See 5 C.F.R. § 1201.115. He has
not shown that any of the administrative judge’s factual determinations are
incorrect and of sufficient weight to warrant an outcome different from that of the
initial decision. 5 C.F.R. § 1201.115(a). He incorrectly asserts that he is due a
noncompetitive career ladder promotion to GS-11 based on the position
description for Position Number 4991. PFR File, Tab 3 at 9. However, the
appellant does not encumber Position Number 4991. Instead, he encumbers
Position Number 5472, the full performance level for which is and has been at the
2
The administrative judge explained that the facts of the case do not implicate any
violation of reemployment rights under USERRA. ID at 2 n.1. Although the appellant
argues that his employment or reemployment rights were violated, Petition for Review
(PFR) File, Tab 1 at 4-5, we find that the administrative judge properly analyzed his
complaint under the USERRA provisions pertaining to discrimination.
3
The administrative judge issued the jurisdictional order on August 18, 2015, with a
10-day period in which to respond. IAF, Tab 5 at 7. On August 31, 2015, the appellant
filed with the Clerk of the Board (Clerk) a document entitled “Supplement to PFR” via
the e-Appeal system under MSPB Docket No. AT-3443-15-0677-I-1. PFR File, Tab 1
at 1. The text of the pleading, however, referenced the docket number for the instant
appeal and states that the pleading is in response to the agency’s motion to dismiss. Id.
at 4. The Clerk treated the appellant’s filing as a premature petition for review and
granted sua sponte an extension of time in which he could file a petition in response to
the September 1, 2015 initial decision. PFR File, Tab 2.
4
GS-09 level. PFR File, Tab 3 at 10; IAF, Tab 4 at 16, 34; see id. at 17, 22, 27,
30.
¶5 The appellant likewise has not shown that the initial decision was based
upon an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case. 5 C.F.R. § 1201.115(b); see ID
at 4. Specifically, he failed to allege facts, which, if proven, could establish that
his nonpromotion to GS-11 was based upon his former military service, or upon
his activities to enforce protections afforded to any person under chapter 43 of
title 38 of the U.S. Code. See 38 U.S.C. § 4311(a), (b); Tindall v. Department of
the Army, 84 M.S.P.R. 230, ¶ 8 (1999). Indeed, he argues on review that the
agency refused to promote him in retaliation for his labor-related activities. PFR
File, Tab 3 at 7-8. Although the appellant argues that 38 U.S.C. § 4214(b)(1)(A)
entitles him to employment in a GS-11 position, 4 id. at 6, we cannot infer Board
jurisdiction on that basis, see Antol v. Perry, 82 F.3d 1291, 1296-98 (3d Cir.
1996) (declining to infer a private right of action for an agency’s failure to
comply with 38 U.S.C. § 4214(c)).
¶6 The appellant also has not alleged that the administrative judge abused his
discretion. 5 C.F.R. § 1201.115(c). He likewise has not submitted any new
evidence or argument that was unavailable despite his due diligence when the
record closed below. 5 C.F.R. § 1201.115(d). The appellant appended several
items to his petition for review, including documents pertaining to his position
description. PFR File, Tab 3 at 9-13. These items are discussed above. He
additionally included a copy of 38 U.S.C. § 4214, PFR File, Tab 3 at 14-15; a
2006 complaint of employment discrimination, id. at 16-21; a series of email
messages from June 2015 regarding his leave requests and a pending disciplinary
investigation, id. at 22-27; and a copy of his collective bargaining agreement, id.
4
Qualified veterans are eligible for veterans recruitment appointments and for
subsequent career-conditional appointments up to and including the level of GS-11 or
equivalent. See 38 U.S.C. § 4214(b)(1)(A).
5
at 28-355. The appellant has not asserted that these items were unavailable to him
before the record closed. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980) (holding that the Board will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). Moreover, with
the exception of the statute, these documents do not address the dispositive issues
before the Board in a USERRA appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, we find the initial decision to be correctly decided and
affirm the decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
6
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.