                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEFFREY S. OSTWALD,                             DOCKET NUMBER
                   Appellant,                        DE-4324-14-0615-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 8, 2015
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Jeffrey S. Ostwald, Omaha, Nebraska, pro se.

           Paul L. Pullum, Esquire, Omaha, Nebraska, 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 prosecute.           For the reasons discussed
     below, we GRANT the appellant’s petition for review, VACATE the initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision, and REMAND the case to the field 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 30% or more
     service-connected disability.    Initial Appeal File (IAF), Tab 5 at 19.         On
     August 25, 2013, the agency appointed him to the excepted service position of
     GS-06 Medical Support Assistant. Id. On August 14, 2014, less than 1 year into
     his appointment, the agency terminated the appellant for “habitual tardiness and
     not satisfactorily meeting the minimum requirements for the position.”           Id.
     at 11-13.
¶3        On August 21, 2014, the appellant filed a USERRA complaint with the
     Department of Labor (DOL). IAF, Tab 1 at 4, 10. On September 13, 2014, he
     filed a USERRA appeal with the Board and requested a hearing, disputing the
     stated reasons for his termination, and arguing that his service obligations with
     the Army National Guard were the real reason for his termination. Id. at 2, 5.
¶4        On September 16, 2014, the administrative judge issued an order informing
     the appellant of how to establish jurisdiction over his appeal, and directing him to
     file evidence and argument on the issue within 12 days of the date of the order.
     IAF, Tab 3.     The appellant did not respond.        On October 23, 2014, the
     administrative judge issued a show cause order, directing the appellant to file
     evidence and argument on the jurisdictional issue within 7 days, and informing
     the appellant that the appeal might be dismissed for failure to prosecute if he did
     not respond.   IAF, Tab 6.      The appellant did not respond to the order.      On
     December 2, 2014, the administrative judge issued a “Final Order to Show
     Cause,” informing the appellant that he proposed to dismiss the appeal for failure
     to prosecute, and warning the appellant that the appeal would be dismissed with
     prejudice unless the appellant contacted him no later than December 9, 2014.
     IAF, Tab 7. Again, the appellant did not respond. On December 31, 2014, the
                                                                                        3

     administrative judge issued an initial decision dismissing the appeal for failure to
     prosecute. IAF, Tab 8, Initial Decision (ID) at 1-2. The initial decision notified
     the appellant of how to file a petition for review with the Board and notified him
     that the filing deadline was February 4, 2015. ID at 3-4.
¶5         On March 6, 2015, the appellant filed a petition for review. Petition for
     Review (PFR) File, Tab 1. He explained that his petition was untimely because
     he was on military orders, attempting to obtain attorney representation, and
     working with DOL to resolve his case. Id. at 3-4. He explained that DOL had
     since completed its investigation, determined that he had been discriminated
     against based on his uniformed service, and concluded that he should be
     reinstated. Id. at 4. He attached a copy of DOL’s letter to his petition. Id. at 5-7.
     The agency has filed a response to the petition for review, opposing it on both
     timeliness and substantive grounds. PFR File, Tab 3.
¶6         To determine whether an appellant has shown good cause for an untimely
     filing, the Board will consider the length of the delay, the reasonableness of his
     excuse and his showing of due diligence, whether he is proceeding pro se, and
     whether he has presented evidence of the existence of circumstances beyond his
     control that affected his ability to comply with the time limits or of unavoidable
     casualty or misfortune which similarly shows a causal relationship to his inability
     to timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,
     62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). We have considered
     the timeliness arguments that this pro se appellant submitted along with his
     petition for review, and we find good cause to waive the filing deadline. PFR
     File, Tab 1 at 3-4.
¶7         Regarding the initial decision, we find that the administrative judge did not
     abuse his discretion by dismissing the appeal for failure to prosecute.          See
     Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 10 (2011). Nevertheless, the
     record on review contains new and material evidence showing that the appellant
     has now exhausted his USERRA claim before DOL and that his Board appeal is
                                                                                      4

now ripe for adjudication. 2 PFR File, Tab 1 at 5-7, Tab 3 at 19; see 38 U.S.C.
§ 4324(b) (if an individual files a USERRA complaint with DOL, he must exhaust
those proceedings before filing his Board appeal); see also Gossage v.
Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012) (if an appellant first seeks
corrective action from DOL, then the Board lacks jurisdiction over his USERRA
appeal until he receives notification that DOL was unable to resolve the
complaint); Muse v. U.S. Postal Service, 82 M.S.P.R. 164, ¶ 13 (1999). If the
administrative judge had the benefit of this information below, he would have
dismissed the appeal for lack of jurisdiction without prejudice to refiling, pending
the outcome of the DOL exhaustion process.          See Goldberg v. Department of
Homeland Security, 104 M.S.P.R. 215, ¶¶ 13-14 (2006) (finding adjudication of a
USERRA claim was premature in the absence of notification from DOL that it
was unable to resolve the appellant’s complaint). The appellant alleged below
that he has an obligation to perform duty in a uniformed service of the United
States and that the agency denied him employment due to this obligation. IAF,
Tab 1 at 5.     This, in conjunction with the new evidence showing that he
completed the DOL exhaustion process, is sufficient to establish Board
jurisdiction over the appeal. See Lubert v. U.S. Postal Service, 110 M.S.P.R. 430,
¶ 11 (2009).
2
  DOL issued its closeout letter on December 22, 2014, PFR File, Tab 3 at 19, and the
appellant presumably did not receive it until 5 business days later, which was
December 31, 2014—the same day that the administrative judge issued his initial
decision, see 5 C.F.R. § 1201.4(l) (absent evidence to the contrary, documents filed by
mail are presumed to have been mailed 5 days earlier). We disagree with the agency
that the closeout letter indicates that DOL reversed its “initial conclusion” after
receiving the agency’s response to the “preliminary” letter. PFR File, Tab 3 at 6.
There is nothing about the November 18, 2014 letter to indicate that it was “initial” or
“preliminary.” PFR File, Tab 1 at 5-7. Nor is there anything about the December 22,
2014 letter to indicate that DOL reversed itself. PFR File, Tab 3 at 19. Unlike the
Office of Special Counsel, which can file a petition for corrective action with the
Board, DOL must rely on the agency’s cooperation to correct USERRA violations. See
20 C.F.R. § 1002.290 (reflecting that DOL lacks authority to order agency compliance
with USERRA). Because the agency in this case declined to cooperate, there was little
that DOL could do but close its file.
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                                    ORDER
     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.
