UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 32
Docket No. AT-4324-11-0442-I-1
Kelly Stephen Jennings,
Appellant,
v.
Social Security Administration,
Agency.
September 13, 2016
Robert W. Hughes, Esquire, Duluth, Georgia, for the appellant.
John Benson, Esquire, Boston, Massachusetts, for the agency.
Meeka S. Drayton, Esquire, Baltimore, Maryland, for the agency.
William L. Hogan, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the initial decision, which ordered corrective action in
this appeal filed under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA).
For the reasons discussed below, we GRANT the petition for review, FIND that
we need not address the cross petition for review at this time, AFFIRM the initial
decision’s finding that res judicata precludes consideration of the appellant’s
2
claim that he should be reemployed and reinstated as an administrative law judge,
VACATE the remainder of the initial decision, and REMAND this case to the
administrative law judge for further adjudication in accordance with this Order.
BACKGROUND
¶2 On August 16, 2007, the agency filed a complaint under 5 U.S.C. § 7521
(Jennings I) proposing to remove the appellant from his administrative law judge
position. Social Security Administration v. Jennings, MSPB
Docket No. CB-7521-07-0026-T-1, Initial Appeal File (0026 IAF), Tab 1. The
complaint set forth charges of Failure to Fully Disclose His Active Duty Status
with the U.S. Army, Improper Dual Employment, Lack of Candor, Failure to
Follow the Agency’s Time and Attendance Procedures, and Failure to Follow the
Agency’s Flexiplace Procedures. 0026 IAF, Tab 1 at 10‑12, Tab 71 at 2. The
agency alleged that for 3 years the appellant was in a continuous active duty
status with the U.S. Army Reserves, for which he was paid, while simultaneously
being employed and paid by the agency. 0026 IAF, Tab 1 at 2, 6, 12.
¶3 After the appellant filed an answer to the complaint, an administrative law
judge held a hearing and issued a June 16, 2008 initial decision finding that the
agency had established good cause to remove the appellant. 0026 IAF, Tab 71,
0026 Initial Decision at 3. The administrative law judge determined that the
agency had proven all of its charges and that removal was an appropriate penalty.
Id. at 3-36. The Board denied the appellant’s petition for review of that initial
decision, finding that there was no new, previously unavailable evidence and that
the administrative law judge made no error in law or regulation that affected the
outcome of the case. Social Security Administration v. Jennings, MSPB Docket
No. CB-7521-07-0026-T-1, Final Order (Jan. 6, 2009). The Board held that the
initial decision issued by the administrative law judge was final and authorized
the agency to remove the appellant from his position. Id. at 2. The U.S. Court of
Appeals for the Federal Circuit affirmed the Board’s decision, finding that the
3
record supported the decision to sustain the charges and that the penalty of
removal was appropriate based on the appellant’s lengthy and intentional
concealment of his military service for personal gain. Jennings v. Social Security
Administration, 407 F. App’x 467 (Fed. Cir. 2011). The U.S. Supreme Court
denied the appellant’s petition for a writ of certiorari. Jennings v. Social Security
Administration, 132 S. Ct. 116 (2011) (Mem.).
¶4 While Jennings I was pending before the administrative law judge, the
agency determined in November 2007, and in April 2008, that the appellant
should not have been compensated for his work for the agency while he was on
active duty with the military, amended its time and attendance records so as to
retroactively place him on leave without pay (LWOP) for the active-duty period,
and notified him of a debt he owed the agency for the resulting salary
overpayment. Initial Appeal File (IAF), Tab 51 at 133-60. The agency issued
Standard Forms 50 (SF-50s) reflecting the retroactive LWOP placement. IAF,
Tab 110 at 11-13. Following a hearing before the Departmental Appeals Board
(DAB), which is an entity that provides independent, impartial review of certain
disputed issues within the Department of Health and Human Services, an
administrative law judge ruled on August 17, 2009, that the appellant owed the
agency a salary overpayment in the amount of $427,784. IAF, Tab 51 at 12-49.
¶5 The appellant filed this appeal on February 3, 2011, alleging that the
agency denied him certain rights and benefits under USERRA, including the right
to reemployment, continuation of employment, and the use of military, annual,
and sick leave. IAF, Tab 1 at 3, 5-6. He further asserted that the agency
retroactively placed him on LWOP during the 3 years in question, which resulted
in the revocation of his previously approved leave and a debt for an alleged salary
overpayment. Id. at 6. According to the appellant, the agency’s action of
retroactively placing him on LWOP was a reduction in pay and suspension that
the agency improperly implemented without first filing a complaint with the
4
Board under 5 U.S.C. § 7521 and proving that there was good cause for such
actions. IAF, Tab 105 at 9-13.
¶6 The appellant also asserted that the administrative law judge in Jennings I
did not notify him of his rights under USERRA and did not address his USERRA
affirmative defense, even though he raised such a claim in that case, and that the
Board should reopen its decision in Jennings I to resolve that issue. IAF, Tab 1
at 5-6, Tab 14. The appellant requested that the Board, among other things, order
the agency to cancel the SF-50s placing him on retroactive LWOP, reinstate his
leave, cancel the debt, and reopen Jennings I and reinstate him to his position as
an administrative law judge with the agency with back pay. IAF, Tab 14 at 7.
¶7 After a hearing, the administrative law judge rejected the appellant’s
assertion that he is entitled to reemployment or reinstatement with back pay on
the basis of a USERRA violation. IAF, Tab 115, Initial Decision (ID) at 19-21.
The administrative law judge found that this claim was barred by the doctrine of
res judicata, even though in Jennings I, the initial decision, the Board’s final
order, and the ensuing decision by the Federal Circuit did not expressly address
the USERRA claim. Id. In this regard, the administrative law judge held that
“res judicata does not require that the court address[] the claim in its judgment on
the merits.” ID at 20.
¶8 The administrative law judge also rejected the appellant’s contention that
the agency improperly reduced his pay and suspended him without filing a
complaint and having the Board find good cause for that action under 5 U.S.C.
§ 7521. ID at 21-24. The administrative law judge held that the agency’s actions
of retroactively placing the appellant on LWOP, amending his time and
attendance records, referring his debt to the DAB, and using funds from his Thrift
Savings Plan (TSP) account to repay part of the debt were not covered actions
under 5 U.S.C. § 7521(b). ID at 22-24. The administrative law judge reasoned
that the agency did not reduce the appellant’s pay because it did not reduce his
rate of pay, did not suspend him because it did not place him, for disciplinary
5
reasons, in a nonduty status, and did not constructively suspend him because his
absence was voluntary. Id. at 22-24.
¶9 Regarding the appellant’s USERRA claim, the administrative law judge
held that, although the agency denied the appellant a benefit of employment when
it placed him on LWOP and imposed a debt for overpayment of salary, and the
appellant’s performance of service in a uniformed service was a substantial or
motivating factor in the action, the agency proved by preponderant evidence that
it would have placed the appellant on LWOP and imposed the overpayment
anyway for a legitimate reason. ID at 25, 29-33. In this regard, the
administrative law judge held that placing the appellant on LWOP and recouping
a salary overpayment for at least part of the time he was on active military duty
was consistent with 38 U.S.C. § 4316(b)(1)(A), which provides that “a person
who is absent from a position of employment by reason of service in the
uniformed services shall be deemed to be on furlough or leave of absence while
performing such service.” ID at 31-32. Further, she found that the agency’s
action was consistent with the implementing regulation at 5 C.F.R. § 353.106(a),
which provides that such an employee “is to be carried on [LWOP] unless the
employee elects to use other leave.” ID at 32-32. She held that, although
5 U.S.C. § 5534 provides that a Reserve of the Armed Forces “may accept a
civilian . . . position under the Government of the United States” and still
“receive the pay of that . . . position in addition to pay and allowances as a
Reserve,” the military pay the appellant received during active duty was not pay
as a Reserve. ID at 32-33.
¶10 The administrative law judge further held that the appellant was not
entitled to a waiver of the overpayment, nor was he entitled to be paid his salary
by the agency based on equitable considerations. ID at 34-35. In so doing, the
administrative law judge noted that there had been no finding by the Office of
Personnel Management under 5 U.S.C. § 8470(b) that the appellant was “without
fault and recovery would be against equity and good conscience.” ID at 35.
6
¶11 However, the administrative law judge found that the agency denied the
appellant a benefit of employment based on his military service when it
retroactively designated his dual‑employment period as LWOP while
(1) crediting him with only some of the military leave to which he was entitled
and (2) changing his approved annual and sick leave to LWOP. ID at 39-44. She
further found that the agency did not prove by preponderant evidence that it had
legitimate reasons to calculate the debt without accounting for this leave. Id.
She observed that the agency also admittedly failed to credit the appellant with
the leave he should have accrued when he was in a military, sick, or annual leave
status. ID at 45.
¶12 Finally, the administrative law judge found that the appellant did not
establish that the agency denied him a benefit of employment in the form of
terminal military leave. ID at 44. The administrative law judge further held that
the appellant did not show that the agency denied him a benefit of employment on
the basis of his military service when it properly recouped an amount
representing the cost of funded benefits such as health and pension plans and
subtracted funds from his TSP account that had been taken out of the appellant’s
salary before his retroactive placement on LWOP. ID at 45-46. The
administrative law judge also found that it was not appropriate to award the
appellant attorney fees, expert witness fees, or other litigation expenses because
such fees and expenses are to be awarded in an addendum proceeding after the
Board issues a final decision in the case. ID at 47.
¶13 Thus, the administrative law judge ordered the agency to modify or replace
the personnel actions placing the appellant on LWOP with personnel actions
reflecting the days and hours in which the appellant was on military leave, annual
leave, or sick leave. ID at 48. The administrative law judge ordered the agency
to recalculate the debt for salary overpayment to credit the appellant with all such
hours of leave and all monetary benefits that would accrue from being in a pay
status during such periods of leave, including the hours of annual and sick leave
7
that accrued during the time he was, or should have been, in a paid leave status.
Id.
ANALYSIS
The appellant’s petition for review
¶14 On review, the appellant asserts that the administrative law judge’s finding
that the agency violated USERRA in this case justifies an exercise by the Board
of its discretion to reopen Jennings I to grant the appellant a hearing on his
USERRA affirmative defense to the charges underlying his removal. Petition for
Review (PFR) File, Tab 1 at 5. The appellant contends that an inference should
be drawn that the agency violated USERRA in connection with the charges
underlying his removal based on the finding that the agency violated USERRA
when it retroactively placed him on LWOP. Id. at 6. The appellant claims that
the administrative law judge’s finding of a USERRA violation “substantially
bolsters his credibility and non-frivolous claim that the Agency also violated
USERRA in connection with the charges in Jennings I.” Id. at 10-11.
¶15 In addition, the appellant asserts that the administrative law judge in
Jennings I wrongfully denied him the opportunity to assert his USERRA
affirmative defense, that the agency improperly did not produce evidence relating
to his placement on LWOP until he filed this USERRA appeal, and that such
evidence is new and material and warrants reopening Jennings I. Id. at 7-8. In
this regard, the appellant contends that the Board should reopen Jennings I to
prevent a manifest injustice involving an error that implicates his basic
procedural rights. Id. at 11. In particular, he contends that the administrative law
judge in Jennings I did not acknowledge his USERRA affirmative defense, docket
it as a separate cause of action, or provide explicit information on his burden to
prove jurisdiction. Id. at 11-13.
¶16 The appellant further asserts that the Board should reopen Jennings I based
on a denial of a property interest in his employment without due process of law.
8
Id. at 14. Regarding this allegation, the appellant contends that he never
received, in either Jennings I or the instant USERRA appeal, a hearing
concerning his USERRA affirmative defense as it related to his removal. Id.
¶17 In deciding whether to reopen a closed appeal, the Board will balance the
desirability of finality against the public interest in reaching the correct result.
Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 37 (2008), aff’d per
curiam, 357 F. App’x 293 (Fed. Cir. 2009). Thus, the Board will exercise its
discretion to reopen an appeal only in unusual or extraordinary circumstances,
such as an intervening event that directly bears on the result or the discovery of
misrepresentation or fraud after the issuance of the initial decision, and generally
within a short period of time after the decision becomes final. Id.; 5 C.F.R.
§ 1201.118. Such a short period of time is usually measured in weeks, not years.
Murray v. National Aeronautics & Space Administration, 112 M.S.P.R. 680, ¶ 5
n.1 (2009), aff’d per curiam, 387 F. App’x 955 (Fed. Cir. 2010).
¶18 Here, the Board’s decision in Jennings I became final on January 6, 2009.
Social Security Administration v. Jennings, MSPB Docket
No. CB-7521-07-0026-T-1, Final Order at 2 (Jan. 6, 2009); see 5 C.F.R.
§ 1201.113(b) (providing that an initial decision becomes final when the Board
issues its last decision denying a petition for review). As set forth above, the
appellant filed this USERRA appeal on February 3, 2011. We find that the
appellant’s request to reopen Jennings I is far beyond the short period of time
during which the Board will consider reopening. In addition, the administrative
law judge’s decision in this case does not constitute unusual or extraordinary
circumstances that warrant reopening Jennings I. There has been no discovery of
misrepresentation or fraud after the issuance of that initial decision. Moreover,
the administrative law judge’s findings regarding the appellant’s retroactive
placement on LWOP and the calculation of the appellant’s debt to the agency, as
well as any evidence supporting those determinations, have no bearing on the
9
decision in Jennings I that the agency proved its charges by preponderant
evidence and that there was good cause to remove the appellant from his position.
¶19 The Board also has held that reopening may be appropriate when there is a
clear and material legal error generally confined to a conflict between the holding
of the decision and a controlling precedent or statute, either because of an
oversight or a change in the controlling law between the date of the original
decision and any reopening request. Hayes v. Department of the Army,
106 M.S.P.R. 132, ¶ 6 (2007); Special Counsel v. Sullivan, 7 M.S.P.R. 357,
360 (1981). As set forth below, we find that the appellant has not shown a clear
and material legal error in Jennings I that warrants reopening.
¶20 In his September 18, 2007 answer to the agency’s complaint in Jennings I,
the appellant asserted that “[a]gency personnel actions seeking removal of the
Respondent from his position as an Agency ALJ constitutes a prohibited
personnel practice and discrimination under 38 U.S.C. §§ 4311(a) and 4311(c)(1)
and generally under” USERRA. 0026 IAF, Tab 4 at 9. The administrative law
judge then issued an October 5, 2007 scheduling order notifying the appellant
that, by October 31, 2007, he needed to file an answer to the agency’s statement
of claims, which was in addition to his answer filed in response to the agency’s
complaint and which conformed to the requirements of Rule 8(b), (c), (d), and (e)
of the Federal Rules of Civil Procedure. 1 0026 IAF, Tab 6 at 1. The
administrative law judge also required the parties to submit, by
November 28, 2007, a “Statement of Authorities Relied Upon.” Id. at 2. The
scheduling order further provided that the administrative law judge would
conduct a telephonic prehearing conference on December 12, 2007, that witness
lists and hearing exhibits “will be reviewed in detail and the facts and issues that
1
Under Federal Rule of Civil Procedure 8(c), “In responding to a pleading, a party must
affirmatively state any . . . affirmative defense.”
10
will be addressed at the hearing will be discussed,” and that the parties “must be
prepared, as appropriate, to discuss settlement, to define issues, and to reach
stipulations of uncontested facts.” Id. The administrative law judge noted that
the parties’ evidence at hearing would be limited by their prehearing submissions,
absent good cause shown. Id. at 3.
¶21 In his October 30, 2007 “Answer to Statement of Claims,” filed in response
to the administrative law judge’s scheduling order in Jennings I, the appellant set
forth a general denial of wrongdoing but did not allege USERRA as an
affirmative defense. 0026 IAF, Tab 10 at 1-8. There is also no mention of
USERRA in the appellant’s November 29, 2007 “Statement of Authorities Relied
Upon.” 0026 IAF, Tab 19. In his February 13, 2008 “Answer to Amended
Statement of Charges/Specifications and Affirmative Defenses,” however, under
which the administrative law judge permitted the appellant to file an answer to
the agency’s amended complaint that added a charge that was subsequently
dismissed from the case, 0026 IAF, Tab 25 at 11‑12, Tab 27; Hearing Transcript
(HT), Volume (Vol.) I at 10-21, the appellant summarily stated that the agency
violated USERRA, 0026 IAF, Tab 41 at 9. During the hearing in Jennings I, the
appellant did not indicate that he was raising an affirmative defense under
USERRA or ask questions of witnesses addressing such an affirmative defense,
see, e.g., 0026 IAF, HT, Vol. I at 29-43 (containing the appellant’s opening
statement), nor did he mention USERRA in his post-hearing brief, 0026 IAF, Tab
68. On petition for review of the initial decision in Jennings I, the appellant’s
USERRA argument pertained to the agency’s attempt to recoup the debt created
by a salary overpayment, not the merits of the agency’s request that the Board
find good cause to remove him for misconduct. Social Security Administration v.
Jennings, MSPB Docket No. CB-7521-07-0026-T-1, Petition for Review (0026
PFR) File, Tab 3 at 2-4, 7, 18-20, 52-109.
¶22 The general rule regarding Federal Rule of Civil Procedure 8(c) is that
affirmative defenses are waived if not pleaded in the answer. Hauschild v.
11
United States, 53 Fed. Cl. 134, 139 (2002). Under the above circumstances,
wherein the appellant did not raise a USERRA affirmative defense in his answer
to the agency’s statement of claims or in his table of authorities, raised a bare
allegation of a USERRA affirmative defense in a pleading filed after the
prehearing conference held to define the issues, and did not raise a claim under
USERRA in connection with his removal during the hearing, in his post-hearing
brief, or in his petition for review, we find that the appellant has identified no
clear and material legal error by the administrative law judge warranting
reopening of the Board’s final decision in Jennings I.
¶23 Further, as set forth above, the reopening request associated with this
appeal was submitted years after the Board’s decision in Jennings I became final,
and the appellant has not submitted new evidence of sufficient weight to warrant
a different outcome. See Murray, 112 M.S.P.R. 680, ¶ 5 n.1. Moreover, based on
the administrative law judge’s findings in Jennings I, which became final, as well
as the affirmance of that decision by the Federal Circuit, the Board would not
likely reach a different result even if it considered the USERRA claim in
connection with the appellant’s removal. See Sheehan v. Department of the Navy,
240 F.3d 1009, 1013-15 (Fed. Cir. 2001) (requiring an individual to initially show
by preponderant evidence that the individual’s military status was at least a
motivating or substantial factor in the agency action, upon which the agency must
prove, also by preponderant evidence, that the action would have been taken for a
valid reason despite the protected status); Strausbaugh v. Government Printing
Office, 117 M.S.P.R. 566, ¶ 12 (finding that USERRA only prevents
discrimination on account of service in the military; it does not prohibit an
agency from considering events that occur during an employee’s military
service), aff’d per curiam, 493 F. App’x 61 (Fed. Cir. 2012). Under all of the
above circumstances, we find that the desirability of finality outweighs any
public interest in reaching a potentially different result.
12
¶24 The appellant asserts, moreover, that the administrative law judge should
not have applied res judicata in this case because the agency’s removal action
pursuant to 5 U.S.C. § 7521 and the appellant’s USERRA appeal are separate
causes of action, and a USERRA claim raised as an affirmative defense in an
adverse action appeal is considered a “separate claim.” PFR File, Tab 1 at 15-17.
The appellant also contends that res judicata does not apply because there was
never a final determination on the merits concerning his USERRA affirmative
defense in Jennings I, and he did not have a full and fair opportunity to litigate
that affirmative defense in Jennings I. Id. at 17-18.
¶25 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332,
337 (1995). Thus, res judicata precludes parties from relitigating issues that
were, or could have been, raised in the prior action, and is applicable if: (1) the
prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Id. For res
judicata purposes, a cause of action is the set of facts that gives an appellant the
right to seek relief from an agency. Frias v. U.S. Postal Service, 63 M.S.P.R.
276, 280, aff’d per curiam, 43 F.3d 1486 (Fed. Cir. 1994) (Table). We agree with
the administrative law judge that res judicata applies here because a claim of a
USERRA violation could have been properly raised in Jennings I in connection
with the appellant’s removal, the judgment in that case was rendered by a forum
with competent jurisdiction, the prior judgment was a judgment on the merits, and
the same set of facts giving rise to the right to seek relief and the same parties
were involved in both cases. In this regard, we agree with the administrative law
judge that res judicata does not require that the prior decision expressly address a
particular claim in its judgment on the merits, even if that claim had been
properly raised. ID at 20-21; see Hornback v. United States, 85 F. App’x 758,
13
762 (Fed. Cir. 2004) (per curiam), 2 overruled on other grounds as recognized by
Young v. United States, 92 Fed. Cl. 425, 431-32 (2010), aff’d per curiam,
417 F. App’x 943 (Fed. Cir. 2011).
¶26 In his response to the agency’s cross petition for review, the appellant
asserts, as he did below, that the agency’s retroactive placement of him on
enforced LWOP from January 2, 2003, to January 17, 2006, triggered a
suspension and a reduction in pay under 5 U.S.C. § 7521. PFR File, Tab 7
at 14‑17, Tab 8 at 5 n.2. The appellant contends that the Board cannot give legal
effect or deference to the DAB’s decision because the DAB had no jurisdiction
over the appellant as an administrative law judge; rather, he asserts that original
jurisdiction to determine a suspension and salary reduction involving an
administrative law judge is vested in the Board under 5 U.S.C. § 7521. PFR File,
Tab 8 at 7-8. Thus, he claims that instead of referring an alleged salary
overpayment to the DAB, the agency should have filed a complaint with the
Board under 5 U.S.C. § 7521. PFR File, Tab 8 at 9. The appellant contends that
the agency’s failure to file a complaint enabled it to take an action against him
without proving good cause and effectively deprived him of his hearing right.
PFR File, Tab 7 at 15.
¶27 Under 5 U.S.C. § 7521(a), “[a]n action may be taken against an
administrative law judge . . . only for good cause established and determined by
the [Board] on the record after an opportunity for a hearing.” The actions
covered by section 7521 include a removal, a suspension, a reduction in grade or
pay, and a furlough of 30 days or less. 5 U.S.C. § 7521(b). An agency’s
retroactive placement of an employee on LWOP without the employee’s consent
may constitute an appealable suspension, even though such action may not be
2
The Board may rely on unpublished decisions of the Federal Circuit if it finds the
court’s reasoning persuasive, as we do here. See Mauldin v. U.S. Postal Service,
115 M.S.P.R. 513, ¶ 12 (2011).
14
“disciplinary” in the traditional sense of that word. See Martin v. U.S. Postal
Service, 123 M.S.P.R. 189, ¶ 9 (2016) (finding that the nonconsensual placement
of an employee in retroactive LWOP status was a suspension pursuant to similar
provisions of chapter 75 providing tenured civil service employees with the right
to appeal adverse actions); McHenry v. U.S. Postal Service, 121 M.S.P.R. 80,
¶¶ 5-8 (2014) (finding that the agency suspended a tenured civil service employee
when it retroactively rescinded his sick leave, directed him not to return to work,
and placed him in an LWOP status); Lowmack v. Department of the Navy,
80 M.S.P.R. 491, ¶¶ 11-13 (1999) (finding that an appellant made a nonfrivolous
allegation that she was involuntarily placed in a nonduty, nonpay status for
“disciplinary” reasons within the broader sense of the word, even though the
agency’s action was part of a larger evacuation of her work location undertaken
for safety and security reasons). Further, an administrative law judge who alleges
a constructive removal or other action by an agency in violation of 5 U.S.C.
§ 7521 may file a complaint with the Board. 5 C.F.R. § 1201.142. Such
complaints shall be adjudicated in the same manner as agency complaints seeking
actions against administrative law judges. Id.
¶28 In light of the appellant’s allegations regarding 5 U.S.C. § 7521, we vacate
the initial decision’s findings, except for the finding that res judicata precluded
the arguments made by the appellant regarding his reemployment and
reinstatement as an administrative law judge, which we affirm, see ID at 19-21,
and remand this appeal to the administrative law judge for further adjudication.
On remand, the administrative law judge must address two initial questions:
(a) does this case involve an action under 5 U.S.C. § 7521; and (b) if so, is there
good cause for such an action? In light of this disposition, we need not directly
address whether the agency should have filed a complaint under 5 U.S.C. § 7521.
In addition, we need not address at this time whether the agency violated
USERRA when it retroactively placed the appellant on LWOP for the entire
period in question and failed to credit him with sick and annual leave that he
15
would have accrued during periods he was on paid leave. After addressing the
two questions set forth above, the administrative law judge may readopt, if
appropriate, the findings set forth in her February 5, 2016 initial decision
addressing the appellant’s USERRA claims.
The agency’s cross petition for review
¶29 The agency contends that, although the administrative law judge
recalculated the amount of the appellant’s debt to the agency, the Board does not
have jurisdiction to review the validity or the amount of this debt. PFR File,
Tab 3 at 5, 12-15. The agency further asserts that, because an administrative law
judge with the DAB already has determined the propriety and amount of the
appellant’s debt to the agency, as well as the matter of whether he had elected to
use leave under 5 C.F.R. § 353.106(a), the doctrine of collateral estoppel
precludes those issues from being relitigated in this USERRA appeal. PFR File,
Tab 3 at 15‑23. Finally, the agency contends that the administrative law judge
erred when she found that the appellant satisfied his initial burden under
USERRA of showing by preponderant evidence that his military status was a
motivating or substantial factor in the agency’s handling of his military and
accrued leave. Id. at 5-6, 23-30.
¶30 Given our determination to vacate many of the initial decision’s findings in
this case, particularly those that are related to the arguments raised in the
agency’s cross petition for review, we need not consider these remaining
arguments at this time. Rather, the administrative law judge may consider these
arguments, in the first instance, in her adjudication of this appeal on remand.
16
ORDER
¶31 For the reasons discussed above, we vacate the initial decision except as to
the findings regarding res judicata and remand this case to the administrative law
judge for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.