                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NATHANIEL K. WATTY,                             DOCKET NUMBER
                   Appellant,                        NY-4324-14-0152-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 12, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Nathaniel K. Watty, Saint Albans, New York, pro se.

           Kathleen J. Tulloch, Esquire, Brooklyn, New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     found he was not entitled to corrective action concerning his nonselection for
     promotion under either the Veterans Employment Opportunities Act of 1998
     (VEOA) or the Uniformed Services Employment and Reemployment Rights Act


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) and found that the
     Board lacks jurisdiction over his remaining claims. For the reasons discussed
     below, we GRANT the appellant’s petition for review, VACATE the initial
     decision, FIND that the appellant has not waived his right to a hearing, and
     REMAND the case to the field office for further adjudication in accordance with
     this Order.

                                      BACKGROUND
¶2         The appellant filed an appeal alleging that the agency committed various
     prohibited personnel practices when he was not selected for a Supervisory Police
     Officer position. Initial Appeal File (IAF), Tab 1. He claimed, among other
     things, that the agency retaliated against him for filing previous Board appeals
     and an equal employment opportunity complaint, denying him a promotion based
     on his membership and performance of service or obligation to perform service in
     a uniformed service, violating his veterans’ preference rights, and discriminating
     against him based on his race, color, sex, national origin, and disability. Id. at 4-
     9. The administrative judge issued orders on USERRA and VEOA jurisdiction,
     including notice of proof requirements, and ordered the appellant to file
     statements addressing the jurisdictional requirements of USERRA and VEOA
     claims. IAF, Tabs 3, 5. The administrative judge also ordered the appellant to
     file evidence and argument to establish a nonfrivolous allegation of jurisdiction
     over his nonselection claim independent of USERRA and VEOA. IAF, Tab 4.
¶3         The appellant filed numerous pleadings addressing the jurisdictional orders.
     IAF, Tabs 7-22. The agency filed a motion requesting that discovery responses
     be stayed pending a ruling on jurisdiction.     IAF, Tab 28.     The administrative
     judge granted the agency’s motion over the appellant’s objections. IAF, Tabs 37,
     41. The administrative judge issued an initial decision finding that the Board has
     jurisdiction over the VEOA claim and USERRA retaliation claim, but that the
     appellant waived his right to a hearing and was not entitled to corrective action
                                                                                      3

     under USERRA or VEOA based on the written record.             IAF, Tab 50, Initial
     Decision (ID) at 4-13.   The administrative judge further found that the Board
     otherwise lacked jurisdiction over his nonselection, USERRA discrimination
     claim, and allegations of other prohibited personnel practices. ID at 3, 12.
¶4        The appellant has filed a petition for review arguing that the administrative
     judge erred by denying his hearing request, staying the agency’s discovery
     responses, and closing the record without allowing him an opportunity to address
     the merits of his claims. Petition for Review (PFR) File, Tab 1. The agency has
     filed a response in opposition to the appellant’s petition for review. PFR File,
     Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge erred by finding that the appellant waived his right to a
     hearing.
¶5        On his appeal form, the appellant indicated that he did not want a hearing.
     IAF, Tab 1 at 2. However, on February 25, 2014, the appellant filed a motion
     requesting a hearing.    IAF, Tab 24.    The administrative judge found that the
     appellant’s request for a hearing was untimely and issued a decision without
     holding a hearing. ID at 2 n.1.
¶6        An appellant must submit any request for a hearing with the appeal or
     within any other time period the administrative judge sets for that purpose.
     5 C.F.R. §§ 1201.24(e), 1208.13(b), 1208.23(b).       Failure to timely request a
     hearing will result in a waiver of that right when the appellant has not shown
     good cause for the failure. Robinson v. Department of the Army, 50 M.S.P.R.
     412, 417 (1991).    The factors to be considered when deciding to waive the
     deadline for requesting a hearing include those typically considered in connection
     with the waiver of the deadline for filing a petition for review: the length of the
     delay; whether the appellant was notified of the time limit or was otherwise
     aware; the existence of circumstances beyond the control of the appellant that
     affected his ability to comply with the time limit; the degree to which negligence
                                                                                          4

     by the appellant is shown to be present or absent; circumstances showing that any
     neglect involved is excusable neglect; a showing of unavoidable casualty or
     misfortune; and the extent and nature of the prejudice to the agency that would
     result from waiver of the time limit.       Beaudette v. Department of the Navy,
     5 M.S.P.R. 394, 398 (1981). In addition to these factors, the administrative judge
     should consider whether the time remaining, as of the date the request for a
     hearing was filed, reasonably permits the convening of a hearing and the
     rendering of a decision on the appeal within 120 days from the date on which the
     appeal was filed. Id.
¶7         The appeal was filed on January 28, 2014.                 IAF, Tab 1.        The
     acknowledgment order was issued on January 30, 2014, and stated that, if the
     appellant had not yet requested a hearing, a written request for a hearing was due
     10 calendar days from the date of the order or the appellant’s right to a hearing
     would be waived. IAF, Tab 2 at 1. The appellant alleges that he did not receive
     the acknowledgment order because it was not mailed to his address of record.
     PFR File, Tab 1 at 4. On his appeal form, the appellant identified an address in
     St. Albans, New York. IAF, Tab 1 at 2. The acknowledgment order was mailed
     to an address in Hempstead, New York. IAF, Tab 2. The appellant has identified
     this as his former address used in a previously filed appeal. PFR File, Tab 1 at 4.
     The appellant states that he called the Board and asked why he had not received
     an acknowledgment order in this appeal. Id. Nothing in the record shows that the
     acknowledgment order was ever sent to the appellant’s correct address or that he
     otherwise received the acknowledgment order. The appellant’s February 25, 2014
     hearing request was 15 days late, according to the time limit set in the
     acknowledgment order. 2 IAF, Tab 2 at 1, Tab 25.



     2
       Because 10 calendar days after the date of the acknowledgment order fell on a Sunday,
     the appellant’s request was due no later than the next workday, which was Monday,
     February 10, 2014. 5 C.F.R. § 1201.23.
                                                                                      5

¶8        The misdirected mailing of the acknowledgment order weighs in favor of
     waiving a filing deadline. See Birdsong v. Department of the Navy, 75 M.S.P.R.
     524, 527 (1997). Further, although the appellant’s request for a hearing was late,
     the delay was not lengthy under the circumstances. There was sufficient time,
     more than 90 days, for the administrative judge to convene a hearing after the
     hearing request and render a decision within 120 days.        The agency has not
     established that any prejudice would result from waiving the time limit. Based on
     these facts, we reverse the administrative judge’s finding that the appellant
     waived his right to request a hearing.      See Shadrick v. Office of Personnel
     Management, 89 M.S.P.R. 357, ¶ 8 (2001) (finding that service at an incorrect
     address constitutes good cause for failure to respond to an administrative judge in
     a timely manner).
     The appellant is entitled to a hearing on the merits of his USERRA discrimination
     and retaliation claims.
¶9        USERRA provides, in relevant part, that a person who has performed 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 on the basis of performance of that service or obligation.
     38 U.S.C. § 4311(a).      To establish the Board’s jurisdiction over a USERRA
     discrimination claim arising under 38 U.S.C. § 4311(a), the appellant must allege
     the following: (1) he performed duty or has an obligation to perform duty in a
     uniformed service of the United States; (2) the agency denied him initial
     employment, reemployment, retention, promotion, or any benefit of employment;
     and (3) the denial was due to the performance of duty or obligation to perform
     duty in the uniformed service. Wilson v. Department of the Army, 111 M.S.P.R.
     54, ¶ 8 (2009).     It is well established that a claim of discrimination under
     USERRA should be broadly and liberally construed in determining whether it is
     nonfrivolous. Id., ¶ 9.
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¶10         The administrative judge found that the Board lacks jurisdiction over the
      appellant’s claim under 38 U.S.C. § 4311(a) because the appellant failed to
      nonfrivolously allege that the performance of duty in a uniformed service was a
      substantial or motivating factor in his nonselection. ID at 12. The administrative
      judge acknowledged that the appellant alleged his past military service and
      obligation to perform military service was a substantial and motivating factor in
      the agency’s decision not to interview him, but found that, because the appellant
      offered no facts to support his assertions and merely quoted the applicable
      statutory language, he had not made a nonfrivolous allegation. Id.
¶11         Although the appellant’s allegations are conclusory, we find that his
      contentions are sufficient to constitute an allegation of a USERRA violation. See
      Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010). Specifically,
      the appellant has alleged that: he performed duty in a uniformed service of the
      United States; the agency was aware of his prior uniformed service; and the
      agency denied him a benefit of employment when it did not select him for the
      Supervisory Police Officer position. See id; IAF, Tab 1 at 6, Tab 7 at 8-9. Thus,
      the appellant’s allegation that his military service was a motivating factor in the
      agency’s decision to not interview him for the position at issue is sufficient to
      establish the Board’s jurisdiction over his USERRA discrimination claim. See
      Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1484-85 (Fed. Cir.
      1998) (finding that a claim that a probationary termination was the result of
      military service was within the Board’s jurisdiction under USERRA even without
      an express reference to USERRA or discrimination).
¶12         The appellant also alleges that his nonselection was in reprisal for having
      filed two prior Board appeals.     IAF, Tab 1 at 5.    The USERRA standard for
      retaliation claims set forth at 38 U.S.C. § 4311(b) provides in relevant part that an
      employer may not discriminate in employment against or take any adverse
      employment action against any person because: (1) he has taken an action to
      enforce a protection afforded any person under this chapter, (2) he has testified or
                                                                                     7

      otherwise made a statement in or in connection with any proceeding under this
      chapter, (3) he has assisted or otherwise participated in an investigation under
      this chapter, or (4) he has exercised a right provided for in this chapter.
      38 U.S.C. § 4311(b). The administrative judge appropriately found that the Board
      has jurisdiction over the appellant’s USERRA claim pursuant to 38 U.S.C.
      § 4311(b). ID at 10-11.
¶13        Because we have found that the appellant has established jurisdiction over
      his claims under 38 U.S.C. § 4311(a) and (b), he has a right to a hearing on the
      merits of his USERRA claims.             Kirkendall v. Department of the Army,
      479 F.3d 830, 844-46 (Fed. Cir. 2007); Gossage v. Department of Labor,
      118 M.S.P.R. 455, ¶ 10 (2012). A USERRA claim within the Board’s jurisdiction
      should not be dismissed without holding a hearing based on the lack of evidence
      to support the claim.     See Wilson, 111 M.S.P.R. 54, ¶¶ 9-10.    Rather, if an
      appellant fails to develop his contentions, his claim should be denied on the
      merits after providing him with the hearing he has requested and to which he is
      entitled. See Kirkendall, 479 F.3d at 846; Swidecki, 113 M.S.P.R. 168, ¶ 6; Baker
      v. Department of Homeland Security, 111 M.S.P.R. 277, ¶ 18 (2009). Thus, we
      remand this appeal to the field office for a hearing on the appellant’s USERRA
      discrimination and retaliation claims.
      The administrative judge erred by dismissing the VEOA claim for failure to state
      a claim without issuing a close-of-record order.
¶14        The administrative judge found that the Board has jurisdiction over the
      appellant’s VEOA claim and further found that the appellant was not entitled to
      corrective action because he had not been denied the right to compete for the
      position at issue. ID at 6-8. Because the administrative judge found that the
      Board has jurisdiction under VEOA, ID at 4-6, and declined to hold a hearing, he
      was responsible for advising the parties that there would be no hearing, for
      setting a date on which the record would close, and for affording the parties the
      opportunity to make submissions regarding the merits of the appeal before the
                                                                                        8

      date the record would close, see Jarrard v. Department of Justice, 113 M.S.P.R.
      502, ¶ 11 (2010).
¶15        The administrative judge’s order regarding VEOA jurisdiction states that, if
      the Board has jurisdiction over the appeal, he would adjudicate the merits after
      holding a hearing or providing the parties an opportunity to further develop the
      written record. IAF, Tab 3 at 7. The administrative judge did not give the parties
      notice that there would be no hearing and did not give the parties an opportunity
      to file evidence and argument before the record closed. Failing to provide notice
      that the record would close is particularly problematic here because the
      administrative judge stayed discovery responses pending a determination on
      jurisdiction. IAF, Tab 41; see Jarrard, 113 M.S.P.R. 502, ¶ 11.
¶16        On remand, the administrative judge must provide the parties with an
      opportunity to complete discovery and make submissions regarding the merits of
      the VEOA claim. If the parties’ submissions show that there is a factual dispute
      material to the issue of whether the appellant is entitled to relief under VEOA, the
      administrative judge should include the VEOA claim in the hearing on the merits.
      See Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001).
      In the absence of such a showing, the VEOA claim may be adjudicated on the
      written record. See id.
      The Board lacks jurisdiction to consider the other claims of prohibited personnel
      practices and discrimination.
¶17        The appellant raised prohibited personnel practices, discrimination, and
      retaliation claims in his appeal. IAF, Tab 1. The Board’s jurisdiction is limited
      to those matters over which it has been given jurisdiction by law, rule, or
      regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
      1985).   Nonselections are not directly appealable to the Board, and claims of
      prohibited personnel practices generally do not provide independent bases for the
      Board’s jurisdiction.     Davis v. Department of Defense, 105 M.S.P.R. 604,
      ¶¶ 15-17 (2007).    In VEOA and USERRA appeals the Board cannot consider
                                                                                     9

      claims of prohibited discrimination under 5 U.S.C. § 2302(b)(1) because neither
      statute grants the Board the authority to consider those claims.          Davis,
      105 M.S.P.R. 604, ¶ 16.      Accordingly, in the remand initial decision, the
      administrative judge may incorporate his prior jurisdictional findings on the
      appellant’s claims of prohibited personnel practices and discrimination except to
      the extent necessary to adjudicate his VEOA and USERRA claims. See Ruffin v.
      Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001).

                                          ORDER
¶18        For the reasons discussed above, we remand this case to the field office for
      further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                          ______________________________
                                              William D. Spencer
                                              Clerk of the Board
      Washington, D.C.
