                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BENJAMIN JACKSON KNIGHT,                        DOCKET NUMBER
                  Appellant,                         PH-3443-14-0849-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: May 15, 2015
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Benjamin Jackson Knight, Dunbarton, New Hampshire, pro se.

           Hayden Wallace, Manchester, New Hampshire, 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
     dismissed for lack of jurisdiction his appeal challenging his treatment following
     military service. For the reasons discussed below, we GRANT the appellant’s



     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     petition for review and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                                       BACKGROUND
¶2        The    appellant   is   an   Auditor   with   the   agency’s   Veterans   Health
     Administration. Initial Appeal File (IAF), Tab 1 at 1. 2 In August 2014, he filed a
     Board appeal alleging that the agency failed to provide him with a performance
     appraisal and award while he was on military leave in October 2011. Id. at 3, 5.
     With his appeal form, the appellant submitted a Certificate of Release or
     Discharge from Active Duty (Form DD-214), which indicated that he performed
     active duty military service with the Air Force Reserve between April 4, 2011,
     and January 4, 2012. 3       Id. at 28.     The appellant also submitted a draft
     memorandum that a Human Resources Specialist prepared for his former
     supervisor’s signature, which stated that she was unable to complete his
     performance appraisal for fiscal year (FY) 2011, because he was on military leave
     at the end of the fiscal year. Id. at 10, 12; see IAF, Tab 4 at 18 (indicating that
     the appellant’s supervisor changed positions). The memorandum stated that the
     appellant’s former supervisor had expected to give him an outstanding rating and
     requested that Human Resources issue him an $800 performance award.              IAF,
     Tab 1 at 12.
¶3        The agency moved to dismiss the appeal, arguing that the appellant failed to
     raise a nonfrivolous allegation that he was subject to an action appealable to the
     Board, and that his appeal was untimely. IAF, Tab 5 at 4-7. Alternatively, the
     agency argued that it could not provide the appellant with a performance

     2
       Prior to a promotion in August 2011, the appellant was an Accounting Technician with
     the agency. IAF, Tab 1 at 12, Tab 4 at 49.
     3
        The appellant also submitted a second Form DD-214, wh ich indicated that he
     performed additional active duty military service with the Air Force Reserve between
     January 9, 2012, and April 29, 2012. IAF, Tab 1 at 29. However, the appellant did not
     allege that the agency failed to provide him with a performance appraisal or award for
     work performed during that time period. See id. at 5 (the appellant’s allegations).
                                                                                       3

     appraisal for FY 2011, because 5 C.F.R. § 430.208(a) prohibits agencies from
     issuing a performance rating based on an “assumed level of performance.” Id.
     at 7. In addition, the agency submitted evidence indicating that the appellant’s
     former supervisor never signed the draft memorandum requesting his performance
     award due to a dispute regarding which supervisor should have been responsible
     for evaluating his performance during the time period at issue. IAF, Tab 4 at 3-4,
     15-18.
¶4        The administrative judge issued an order to show cause, which provided
     information regarding Board jurisdiction over adverse actions under 5 U.S.C.
     chapter 75 and ordered the appellant to submit evidence and argument indicating
     that the Board had jurisdiction over his appeal. IAF, Tab 6. The appellant did
     not respond to the order, and the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID).
     In the initial decision, the administrative judge did not reference the Uniformed
     Services Employment and Reemployment Rights Act of 1994 (USERRA), but
     stated that the appellant did not allege that there was any relationship between his
     military leave and the agency’s failure to issue his FY 2011 performance
     appraisal or award. ID at 1 n.1.
¶5        The appellant has filed a petition for review, in which he requests guidance
     regarding where to pursue his claims. Petition for Review (PFR) File, Tab 1 at 4.
     The agency has not responded to the petition for review.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge erred in dismissing this appeal for lack of jurisdiction
     because the appellant was not placed on notice of his burden to establish
     jurisdiction over a USERRA claim.
¶6        An appellant must receive explicit information on what is required to
     establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
     Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). In the present case, the appellant
     alleged that he was on military leave and “never received a performance appraisal
                                                                                            4

     in October 2011 and award like I would normally have.” IAF, Tab 1 at 5. He
     also submitted the draft memorandum stating that his former supervisor was
     unable to complete his performance appraisal because he was on military leave
     and requesting authority to issue him an award for his performance. Id. at 12.
     Two types of cases arise under USERRA: (1) reemployment cases, in which the
     appellant claims that an agency has not met its obligations under 38 U.S.C.
     §§ 4312-4318 following the appellant’s absence from civilian employment to
     perform uniformed service; and (2) so-called “discrimination” cases, in which the
     appellant claims that an agency has taken an action prohibited by 38 U.S.C.
     § 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005). We
     construe the appellant’s allegation and submissions as a claim that the agency
     either discriminated against him based upon his military obligations or denied
     him reemployment rights and benefits after a period of absence due to military
     service, in violation of USERRA. See 38 U.S.C. §§ 4311(a), 4312(a).
¶7         While the appellant did not explicitly reference USERRA in his pleadings,
     both the U.S. Court of Appeals for the Federal Circuit and the Board have found
     that an appellant need not do so, where, as here, his allegations should have
     placed the administrative judge on notice that he was attempting to raise a
     USERRA claim. 4 See Yates v. Merit Systems Protection Board, 145 F.3d 1480,
     1485 (Fed. Cir. 1998) (an appellant established jurisdiction over her USERRA
     discrimination claim, although she did not reference USERRA in her Board
     appeal); see also Hammond v. Department of Veterans Affairs, 98 M.S.P.R. 359,
     ¶¶ 9-10 (2005) (although an appellant did not specifically identify USERRA as
     the basis for his claim, the administrative judge erred in failing to consider his
     allegations as a USERRA discrimination claim).


     4
       Moreover, although the appellant did not identify USERRA as a basis for jurisdiction
     in his filings before the Board, the agency submitted an email that the appellant sent to
     the Human Resources Specialist inquiring whether she felt his rights under USERRA
     had been violated. IAF, Tab 4 at 21.
                                                                                       5

¶8         Neither the administrative judge nor the agency’s filings placed the
      appellant on notice of the burdens and the elements of proof for establishing a
      USERRA reemployment or discrimination claim. See IAF, Tabs 2, 4-7. Thus,
      because the appellant was not placed on specific notice of what he needed to
      show or allege to establish Board jurisdiction over his USERRA claim, the
      administrative judge erred in dismissing this appeal for lack of jurisdiction. See
      Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 5 (2005) (an
      administrative judge erred by dismissing a USERRA appeal without providing an
      appellant with Burgess notice).
      The appellant raised nonfrivolous allegations sufficient to establish Board
      jurisdiction over a USERRA discrimination claim.
¶9         Although the administrative judge failed to provide the appellant with
      notice of what was necessary to establish an appealable jurisdictional issue, we
      find that the appellant nevertheless raised nonfrivolous allegations sufficient to
      establish Board jurisdiction over a USERRA discrimination claim. To establish
      Board jurisdiction over a USERRA discrimination claim, an appellant must allege
      that: (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.     38 U.S.C.    § 4311(a);   Gossage    v.   Department    of
      Labor, 118 M.S.P.R. 455, ¶ 10 (2012).
¶10        It is undisputed that the appellant performed active duty military service in
      the Air Force Reserves, which qualifies as service in the uniformed services for
      purposes of USERRA. See IAF, Tab 1 at 28 (the Form DD-214 reflecting the
      appellant’s active duty service), Tab 4 at 3 (the agency’s admission that the
      appellant was on military leave); see also 38 U.S.C. § 4303(13), (16); Johnson v.
      U.S. Postal Service, 85 M.S.P.R. 1, ¶ 8 (1999) (for purposes of USERRA, service
      as a Reservist in the armed forces qualifies as service in the uniformed services).
                                                                                          6

      The appellant alleged that the agency denied him a performance appraisal and
      award for FY 2011, and the agency does not dispute this assertion. See IAF,
      Tab 1 at 5 (the appellant’s allegations), Tab 4 at 4 (the agency’s statement that
      Human Resources never received sufficient information to process an FY 2011
      performance appraisal or award for the appellant).           The term “benefit of
      employment,” is broadly defined, and includes “any advantage, profit, privilege,
      gain, status, account, or interest (including wages or salary for work performed)
      that accrues by reason of an employment contract or agreement or an employer
      policy, plan, or practice,” as well as “bonuses.” 38 U.S.C. § 4303(2); see Yates,
      145 F.3d at 1483. We find that the FY 2011 performance appraisal and award
      constitute benefits of employment under USERRRA. See Bambl v. Department of
      the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010) (the Board’s jurisdiction under
      USERRA extends to appeals of performance appraisal ratings).
¶11        Regarding the final jurisdictional criterion, an appellant is not required to
      explicitly allege that an agency discriminated against him based upon military
      service if he alleges facts sufficient to invoke such a claim.      Yates, 145 F.3d
      at 1485; Johnson, 85 M.S.P.R. 1, ¶ 11. A claim of discrimination under USERRA
      should be broadly and liberally construed in determining whether it is
      nonfrivolous, particularly where, as here, an appellant is pro se.                See
      Gossage, 118 M.S.P.R. 455, ¶ 10. We find that the appellant’s allegations that he
      was on military leave and the agency failed to provide him with a performance
      award and appraisal, together with his submission of the agency’s draft
      memorandum stating that he did not receive an appraisal because he was on
      military leave, are sufficient to establish Board jurisdiction over his USERRA
      discrimination claim. 5 See IAF, Tab 1 at 5, 12.


      5
       Furthermore, the agency’s argument that the appeal was untimely is inapplicable to a
      USERRA appeal. See IAF, Tab 5 at 7 (the agency’s argument that the appellant’s
      appeal was untimely). There is no time limit to file a USERRA appeal directly with the
      Board. See Holmes v. Department of Justice, 92 M.S.P.R. 377, ¶ 10 (2002).
                                                                                       7

¶12         The agency’s argument that 5 C.F.R. § 430.208(a) prohibited it from issuing
      a performance rating based upon an “assumed level of performance” does not
      alter this analysis.   IAF, Tab 5 at 7.   The regulation prohibits agencies from
      issuing “a rating of record that assumes a level of performance by an employee
      without an actual evaluation of that employee’s performance.”             5 C.F.R.
      § 430.208(a)(2). However, the agency has not identified any law, regulation, or
      policy that prohibits it from issuing a performance appraisal for an employee,
      such as the appellant, who was only at work for a portion of the evaluation
      period.   See IAF, Tab 1 at 28 (reflecting the dates of the appellant’s military
      service), Tab 5 at 7 (the agency’s argument below). Thus, to date, the agency has
      failed to explain why it could not issue the appellant an appraisal that evaluated
      his performance during the portion of FY 2011, that he was at work. 6 Indeed, the
      record reflects that, just as in FY 2011, the appellant was on military leave for a
      portion of FY 2012, and the agency provided him with a performance appraisal
      and award for work performed during that fiscal year.       IAF, Tab 1 at 28-29
      (reflecting the dates of the appellant’s military service in FY 2012), Tab 5
      at 35-41 (the appellant’s FY 2012 performance appraisal and award).
      The appellant raised allegations sufficient to establish Board jurisdiction over a
      USERRA reemployment claim.
¶13         Similarly, we find that the appellant raised nonfrivolous allegations
      sufficient to establish Board jurisdiction over a USERRA reemployment claim. A
      reemployment claim arises under USERRA when an employee claims that an
      agency has not met its obligations under 38 U.S.C. §§ 4312-4318 following his




      6
        On remand, the administrative judge should afford the parties an opportunity to
      present additional argument on this issue.
                                                                                                8

      absence    from    civilian     employment     to    perform     uniformed        service. 7
      Clavin, 99 M.S.P.R. 619, ¶ 5.
¶14        USERRA authorizes the Director of the Office of Personnel Management
      (OPM)     to   promulgate     regulations   governing   its    application   to     federal
      agencies. 38 U.S.C. § 4331(b). OPM promulgated 5 C.F.R. § 353.106(c), which
      addresses restoration to duty after uniformed service and provides that “agencies
      have an obligation to consider employees absent on military duty for any incident
      or advantage of employment that they may have been entitled to had they not
      been absent.” 5 C.F.R. § 353.106(c). It further instructs that this can be achieved
      by considering the following three factors:         whether the benefit is generally
      granted to all employees; whether the employee is being treated the same as if he
      had remained at work; and whether it is reasonably certain that the benefit would
      have accrued to the employee but for the absence. Id.; see 38 U.S.C. §§ 4303(2)
      (defining “benefit” for purposes of USERRA to include bonuses), 4312(a)
      (providing that reemployment rights include benefits); see also Rassenfoss v.
      Department of the Treasury, 121 M.S.P.R. 512, ¶ 12 (2014).
¶15        On his appeal form, the appellant alleged that he received an outstanding
      rating and a performance award the year prior to FY 2011, and 2 years afterwards.
      IAF, Tab 1 at 5. He also submitted a copy of his FY 2010 performance appraisal,
      reflecting an outstanding rating, and the draft memorandum stating that his
      former supervisor had expected to give him an outstanding rating for FY 2011,
      and requesting that Human Resources issue him a performance award. Id. at 12,
      21-25.    We construe these allegations as a claim that, when reinstating the
      appellant to duty after his military service, the agency failed to consider him for
      an incident or advantage of employment to which he would have been entitled


      7
        Un like discrim ination claims, an appellant’s rights under USERRA’s reemployment
      provisions do not depend on the motivation for an agency’s action or inaction, and the
      agency bears the burden of proving that it met its statutory obligations. Rassenfoss v.
      Department of the Treasury, 121 M.S.P.R. 512, ¶ 10 (2014).
                                                                                      9

had he not been absent. 8 See 5 C.F.R. § 353.106(c). We further find that under
the Board’s liberal pleading standard for USERRA claims, the allegations are
sufficient     to   establish   jurisdiction   over   a   reemployment   claim.     See
Rassenfoss, 121 M.S.P.R. 512, ¶¶ 10-17 (evaluating the merits of an appellant’s
USERRA reemployment claim that an agency violated 5 C.F.R. § 353.106(c) in
denying him a discretionary quality step increase).

                                          ORDER
      For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.               On
remand, the administrative judge shall inform the appellant of the different
methods of proving his USERRA claims and explain the USERRA burdens of
proof. 9     The administrative judge shall afford the parties an opportunity to




8
  Even assuming for the sake of argument that 5 C.F.R. § 430.208(a) prohibited the
agency from “assum[ing]” the appellant’s level of performance for purposes of issuing
a performance rating, he would nevertheless potentially be able to establish that he was
reasonably certain to have received a performance award if had he not been absent on
military leave. See Rassenfoss, 121 M.S.P.R. 512, ¶¶ 5-8, 10-17 (remanding as a
USERRA reemployment appeal an appellant’s claim that he would have been
reasonably certain to receive a quality step increase based upon his performance,
although the agency properly designated the appellant as “Not Ratable” due to his
military leave).
9
  The appellant alleged below that he did not pursue a claim with the Department of
Labor (DOL). IAF, Tab 1 at 4. If true, his claims are now ripe, as exhaustion of a
USERRA claim only is required if a complaint is filed with DOL. 38 U.S.C.
§ 4324(b)(1); Graham v. Commodity Futures Trading Commission, 105 M.S.P.R. 392,
¶ 5 (2007), aff’d, 348 F. App’x 564 (Fed. Cir. 2009); 5 C.F.R. § 1208.11(a)-(b).
                                                                                    10

conduct discovery and to submit evidence and argument regarding the USERRA
claims. Finally, he shall adjudicate the claims and issue a new initial decision.




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