                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CLARENCE MCGUFFIN,                              DOCKET NUMBER
                 Appellant,                          DC-4324-14-0938-I-1

                  v.

     SOCIAL SECURITY                                 DATE: May 14, 2015
       ADMINISTRATION,
                   Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Clarence McGuffin, Raleigh, North Carolina, pro se.

           Dana L. Myers, and Selisa M. Wright, Esquire, Atlanta, Georgia, 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 his Uniformed Services Employment and Reemployment Rights Act of
     1994 (USERRA) appeal for failure to state a claim upon which relief can be
     granted. For the reasons discussed below, we GRANT the appellant’s petition for

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The   appellant    is   a   10-point    preference-eligible    veteran    with   a
     service-connected disability of 30% or more. Initial Appeal File (IAF), Tab 45
     at 128. On February 8, 2010, the agency appointed him to the excepted service
     position of Attorney-Advisor, subject to a 2-year trial period. Id. The major
     duties of the Attorney-Advisor position include advising and drafting decisions
     for the agency’s administrative law judges.        IAF, Tab 46 at 58-64.       Effective
     February 4, 2011, just short of 1 year from his initial appointment, the agency
     terminated the appellant for performance reasons. IAF, Tab 45 at 14-16, 129.
¶3         On July 26, 2014, the appellant filed a USERRA appeal and requested a
     hearing. 2 IAF, Tab 1. He claimed that the agency denied him both employment
     and a benefit of employment, i.e., adverse action appeal rights, based on his
     uniformed service. IAF, Tab 53 at 15-21. Specifically, he argued that, due to his
     uniformed service, the agency denied him the full benefit of the 2-year trial
     period because it wished to avoid the consequences of him receiving the adverse
     action appeal rights that he would have received after 1 year. IAF, Tab 1 at 5. In
     support of his argument, the appellant alleged that the agency contemplated
     terminating an underperforming nonveteran Attorney-Advisor whom it had hired
     at the same time as him, but that the agency elected to keep her on for the full

     2
       The appellant also filed a formal equal employment opportunity (EEO) complaint
     alleging discrimination based on disability, and the agency returned a finding of no
     discrimination. IAF, Tab 31 at 11-29. The appellant appealed the decision to the Equal
     Employment Opportunity Commission’s Office of Federal Operations, where it is
     currently pending. IAF, Tab 1 at 3. Although the issues in the instant appeal and the
     appellant’s EEO complaint overlap, there is no ind ication that there has been a final
     judgment in that matter, and so there is no basis for us to give preclusive effect to any
     findin g in the final agency decision. See Davis v. U.S. Postal Service, 119 M.S.P.R. 22,
     ¶16 (2012) (collateral estoppel precludes the relitigation of issues that have been
     previously fully litigated and made part of a final judgment).
                                                                                       3

     2-year trial period.   Id. at 5-6, 8-9.     This allowed the nonveteran attorney
     sufficient time to improve her performance, and the agency ultimately decided not
     to terminate her. Id. at 5-6. The appellant maintained, however, that because of
     his status as a veteran, he was denied the same time period to improve his
     performance before the agency terminated him. Id. at 6, 8-9.
¶4        The administrative judge found that the appellant established jurisdiction
     over his appeal and she scheduled a hearing. IAF, Tab 14 at 1. However, she
     subsequently notified the appellant that he appeared to be challenging the law
     regarding Board appeal rights for veterans, and that such a claim is not
     cognizable under USERRA. IAF, Tab 52 at 1-2. She ordered him to show cause
     why his appeal should not be dismissed for failure to state a claim upon which
     relief can be granted, she set a close of the record date, and she notified him that
     his appeal would be dismissed without a hearing if he failed, by that date, to state
     a claim upon which relief could be granted. Id. at 2.
¶5        After the close of the record, the administrative judge issued an initial
     decision dismissing the appeal for failure to state a claim. IAF, Tab 54, Initial
     Decision (ID) at 1, 9. She found that the agency acted within its lawful discretion
     in terminating the appellant within 1 year of his appointment, and even if the
     appellant believed that the abbreviated statutory period for receiving Board
     appeal rights worked against him in this case, the Board lacks authority to remedy
     the situation. ID at 6-8.
¶6        The appellant has filed a petition for review, disputing the administrative
     judge’s analysis of his claim, as well as numerous procedural matters. Petition
     for Review (PFR) File, Tab 1. The agency has filed a response, id., Tab 3, and
     the appellant has filed a reply to the agency’s response, id., Tab 4.
¶7        This appeal must be remanded for further proceedings.                  As the
     administrative judge correctly found, the appellant established jurisdiction over
     his appeal.   ID at 6; IAF, Tab 14 at 1; see Lubert v. U.S. Postal Service,
     110 M.S.P.R. 430, ¶ 11 (2009) (standard for establishing jurisdiction over a
                                                                                          4

     USERRA appeal under 5 U.S.C. § 3311).             However, she dismissed his appeal
     without holding the hearing that he requested. As the appellant correctly argues
     on review, an appellant who establishes jurisdiction over a USERRA appeal has
     an unconditional right to a hearing if he requests one. PFR File, Tab 1 at 20, 34;
     Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007);
     Williams v. Department of the Treasury, 110 M.S.P.R. 191, ¶ 11 (2008).
     Dismissals for failure to state a claim offer no exception.              See Baker v.
     Department of Homeland Security, 111 M.S.P.R. 277, ¶ 18 & n.2 (2009) (a
     dismissal for failure to state a claim upon which relief can be granted is a
     decision on the merits).
¶8           The cases that the administrative judge cited in her initial decision do not
     support the proposition that dismissal without a hearing was appropriate in this
     case.      ID at 5-6.      For instance, Haasz v. Department of Veterans Affairs,
     108 M.S.P.R. 349 (2008), runs counter to the proposition for which the
     administrative judge cited it. Haasz was a Veterans Employment Opportunities
     Act of 1998 (VEOA) appeal in which the Board noted that USERRA is unlike
     VEOA because the former grants an unconditional right to a hearing, whereas the
     latter does not.     108 M.S.P.R. 349, ¶ 9.       Thus, the Board found that it was
     permissible to decide a VEOA appeal on the merits without a hearing where there
     is no genuine dispute of material fact and one party must prevail as a matter of
     law. Id. In addition, in Williams v. Department of the Army, 83 M.S.P.R. 109
     (1999), a USERRA appeal, the Board dismissed for failure to state a claim, but
     there is no indication in that decision whether the appellant requested a hearing.
     Finally,     in   Murray     v.   National   Aeronautics   &    Space   Administration,
     112 M.S.P.R. 680, ¶ 4 (2009), aff’d, 387 F. App’x 955 (Fed. Cir. 2010), the Board
     affirmed the initial decision dismissing the appellant’s USERRA appeal for
     failure to state a claim upon which relief can be granted, but it did so only after
     the appellant was allowed to present oral argument.            Even where there are no
     material facts in dispute, an appellant who has the right to a hearing and requests
                                                                                      5

     one must at least have the opportunity to present his case at a nonevidentiary
     hearing. Cf. Muyco v. Office of Personnel Management, 114 M.S.P.R. 694, ¶ 14
     (2010) (where there is no dispute of material fact and the outcome of the appeal is
     a matter of law, the hearing required under 5 U.S.C. § 7701(a)(1) may be limited
     to an opportunity to present oral argument on the dispositive legal issue).
¶9         This appeal presents an issue of first impression, i.e., whether an agency
     denies employment or a benefit of employment to a preference eligible in the
     excepted service based on his uniformed service when it terminates him within
     1 year of his appointment in order to avoid the consequences of that individual
     achieving “employee” status under 5 U.S.C. § 7511(a)(1)(B). As stated above,
     the Board cannot decide this issue without a hearing. Further, we cannot decide it
     without further development of the record. The appellant’s argument on review
     that the administrative judge failed to rule on his two latest discovery motions is
     well-taken. PFR File, Tab 1 at 17-18; IAF, Tabs 47-48. At least some of the
     information that the appellant sought in these requests would likely be helpful to
     the Board in deciding this appeal––in particular, information regarding the
     agency’s treatment of other individuals in its Atlanta Region Office of Disability
     Adjudication and Review who may have been similarly situated. IAF, Tab 48
     at 4-6. Although it may sometimes be appropriate to suspend discovery pending
     ruling on a dispositive issue, under the particular circumstances of this case, we
     find it appropriate to allow the parties to complete the discovery process before
     the administrative judge conducts a hearing and issues a new initial decision. See
     Strauss v. Office of Personnel Management, 39 M.S.P.R. 132, 138 (1988) (“[N]o
     final determination limiting the scope of the proceeding should be made before
     the parties have had an opportunity to obtain, through discovery, the information
     they need in order to clarify their allegations.”).
                                                                                              6

                                              ORDER
¶10         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 allow the parties to complete the discovery
      process, and she shall afford the appellant his requested hearing. 3




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




      3
        The appellant argues that the administrative judge’s case-related rulings and her
      history of ruling against appellants in USERRA appeals show that she was biased
      against him. PFR File, Tab 1 at 15, 19, 35. In making a claim of bias or prejudice
      against an administrative judge, a party must overcome the presumption of honesty and
      integrity that accompanies administrative adjudicators. Oliver v. Department of
      Transportation, 1 M.S.P.R. 382, 386 (1980). An admin istrative judge’s conduct during
      the course of a Board proceeding warrants a new adjudication only if the administrative
      judge’s comments or actions evidence “a deep-seated favoritism or antagonism that
      would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555,
      (1994)). We find that the appellant’s allegations of bias do not meet this standard. It is
      well settled that an administrative judge’s case-related rulings, even if erroneous, are
      insufficient to establish bias. King v. Department of the Army, 84 M.S.P.R. 235, ¶ 6
      (1999). Nor are the appellant’s allegations of bias in other cases involving other
      appellants relevant to the administrative judge’s alleged bias in this case. See Farris v.
      Department of the Air Force, 26 M.S.P.R. 304, 306 n.4 (1985). Accordingly, there is
      nothing to prevent this appeal from being assigned to the same administrative judge on
      remand.
