                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 43

                            Docket No. SF-3330-13-1464-B-1

                                    Corey D. Stoglin,
                                        Appellant,
                                             v.
                             Department of the Air Force,
                                         Agency.
                                        July 9, 2015

           Corey D. Stoglin, Minneapolis, Minnesota, pro se.

           Eugene R. Ingrao, Sr., Arlington, Virginia, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which dismissed his claim under the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA) for lack of jurisdiction or, in the alternative, for failure to state a
     claim upon which relief can be granted.      For the reasons set forth below, we
     DENY the petition for review for failure to meet the Board’s criteria for review.
     See 5 C.F.R. § 1201.115.     We VACATE our previous finding in Stoglin v.
     Department of the Air Force, MSPB Docket No. SF-3330-13-1464-I-1, Remand
     Order (Sept. 23, 2014) (Remand Order), that we have jurisdiction over the
     appellant’s USERRA claim, and we VACATE the remand initial decision to the
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     extent that the administrative judge found that the appellant failed to state a claim
     upon which relief could be granted. We DISMISS the appellant’s USERRA claim
     for lack of jurisdiction.

                                      BACKGROUND
¶2         The appellant filed an appeal with the Board, under both USERRA and the
     Veterans Employment Opportunities Act of 1998 (VEOA), regarding his
     nonselection for the GS-12 position of Equal Employment Manager with the
     Hawaii Air National Guard (Vacancy Announcement No. FS-406716-SK11).
     MSPB Docket No. SF-3330-13-1464-I-1, Initial Appeal File (IAF I-1), Tab 1,
     Tab 5 at 4-5. The administrative judge dismissed the appellant’s USERRA claim
     for lack of jurisdiction, without holding the hearing he requested, finding that he
     failed to nonfrivolously allege that his name was not referred for further
     consideration on the best qualified list because of his military service. IAF I-1,
     Tab 14, Initial Decision (ID I-1) at 4-5. She also dismissed his VEOA claim.
     ID I-1 at 5-7.
¶3         The appellant filed a petition for review, which the Board granted only as
     to his USERRA claim.         The Board found that the appellant’s conclusory
     assertions that the selectee was a nonveteran, and that the agency failed to select
     him because of his status as a traditional reservist as a result of an improper merit
     system it employs to give preference to active reservists, were sufficient to
     establish Board jurisdiction over his USERRA claim.         Remand Order at 8-10.
     Accordingly, the Board remanded the USERRA claim to the regional office for a
     hearing. 1 Remand Order at 10.




     1
       The Board dismissed the appellant’s VEOA claim as untimely filed, vacating the
     initial decision insofar as it dismissed the claim on other grounds. Remand Order
     at 3-8. We do not disturb our prior finding regarding the appellant’s VEOA claim.
                                                                                          3

¶4         On remand, the administrative judge again dismissed the USERRA claim
     for lack of jurisdiction without a hearing. MSPB Docket No. SF-3330-13-1464-
     B-1, Remand File (RF), Tab 17, Remand Initial Decision (RID).               Based on
     arguments raised in an agency motion to dismiss, RF, Tab 11, to which the
     appellant responded, id., Tab 15, the administrative judge found that the Hawaii
     Air National Guard is a state agency and that, as such, the appellant must bring
     his USERRA claim before a state court, RID at 4-6. However, in light of the
     Board’s previous finding of jurisdiction, she found, in the alternative, that the
     appeal fails to state a claim upon which relief can be granted. 2         RID at 6-7.
     Specifically, she found that a Board order against the Hawaii Air National Guard
     would be unenforceable and that, therefore, the appellant would not be able to
     receive any effective relief even if jurisdiction existed and he prevailed. Id.
¶5         The appellant timely petitioned for review of the remand initial decision,
     stating only that he was “requesting a review of the initial decision in this case.”
     MSPB Docket No. SF-3330-13-1464-B-1, Petition for Review File (PFR File),
     Tab 1 at 3. He requested an extension of time to “submit a more detailed petition
     for review.” Id. The Clerk of the Board granted the appellant an extension until
     March 27, 2015, to supplement his petition for review. PFR File, Tab 2. The
     appellant failed to timely 3 supplement his petition for review.


     2
       Because the Board lacks jurisdiction over the USERRA claim, we vacate the portion
     of the remand initial decision finding that the appellant failed to state a claim upon
     which relief could be granted. See RID at 6-7; see also White v. U.S. Postal Service,
     114 M.S.P.R. 574, ¶ 11 (2010) (finding that dismissal for failure to state a claim is
     improper if an appellant fails to establish jurisdiction over his appeal because this
     disposition goes to the merits of the appeal, which the Board cannot reach if it lacks
     jurisdiction).
     3
       The appellant filed his supplement on March 30, 2015, acknowledging that it was
     submitted “after the close of the record.” PFR File, Tab 3 at 4. Once the record closes
     on review, the Board will not accept any additional evidence or argument unless it is
     new and material. 5 C.F.R. § 1201.114(k). The appellant has made no such showing.
     He requests to submit a decision by a U.S. Equal Employment Opportunity Commission
                                                                                             4

                                           ANALYSIS
     The appellant’s petition for review fails to meet the criteria for review.
¶6         A petition for review must state a party’s objections to the initial decision,
     including all of the party’s legal and factual arguments, and must be supported by
     specific    references    to    the    record    and     any    applicable     laws    or
     regulations. 5 C.F.R. § 1201.114(b). The appellant’s bare statement that he is
     “requesting a review of the initial decision” fails to satisfy these requirements
     and does not establish any basis for review under 5 C.F.R. § 1201.115.
     Therefore, his petition for review is DENIED.           See Rumsey v. Department of
     Justice, 120 M.S.P.R. 259, ¶ 11 (2013) (citing Weaver v. Department of the
     Navy, 2 M.S.P.R. 129, 133 (1980) (before the Board will undertake a complete
     review of the record, the petitioning party must explain why the challenged
     factual determination is incorrect, and identify the specific evidence in the record
     which demonstrates the error)).


     (EEOC) administrative judge, asserting that it was previously unavailable. PFR File,
     Tab 3 at 4. However, the decision was issued in January 2012, and, thus, is not new.
     Id. at 30; see, e.g., Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 5
     (2009) (finding that a document submitted for the first time on review, which was dated
     before the close of record below, did not constitute new evidence). The decision is also
     immaterial because we are not required to defer to the EEOC’s interpretation of what
     constitutes a civil service law, rule, or regulation, the interpretation of which falls
     squarely within the purview of the Board’s area of expertise.              See 5 U.S.C.
     § 7702(c)(2). Moreover, there is no evidence that the EEOC administrative judge’s
     recommended decision became the EEOC’s final decision.                   See 29 C.F.R.
     § 1614.110(a). The appellant also attaches a September 2014 Report of Assessment of
     the Alaska Air National Guard, completed by the National Guard Bureau, and a
     June 2014 Organizational Climate Survey completed by the Defense Equal Opportunity
     Management Institute. PFR File, Tab 3 at 31-253. He asserts that these documents
     relate to the duties and training requirements of the position for which he applied, but
     such information is irrelevant to the issue of jurisdiction. Id. at 5. He also makes
     specific challenges to the remand initial decision, but provides no explanation as to why
     he failed to timely raise these arguments earlier and does not address the statutory and
     regulatory provisions at the heart of the jurisdictional issue in this appeal. Id. at 4-5.
     Based on the foregoing, we decline to consider the appellant’s supplement to his
     petition for review.
                                                                                     5

     The Board lacks jurisdiction over the appellant’s USERRA claim.
¶7         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).      Moreover, the issue of the Board’s
     jurisdiction is always before the Board and may be raised at any time. Ney v.
     Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010). Thus, notwithstanding
     our denial of the appellant’s petition for review, we have reconsidered our
     previous jurisdictional determination regarding the appellant’s USERRA claim.
¶8         As noted above, the appellant applied for employment with the Hawaii Air
     National Guard and the position for which he applied was advertised as a nondual
     status position. RF, Tab 13 at 4; IAF I-1, Tab 8 at 72-73, 79. The employment of
     such nondual status employees is authorized by 10 U.S.C. § 10217(a), and the
     incumbents are civilian employees.    10 U.S.C. § 10217(a).    Although they are
     employees of the Department of Defense, and thus considered federal employees
     for most purposes, National Guard civilian technicians are considered state
     employees    for   USERRA     purposes.      Title   38,   United   States   Code,
     section 4303(4)(B), which is part of the statutory section containing definitions
     applicable to USERRA, specifically states that, “[i]n the case of a National Guard
     technician employed under section 709 of title 32, the term ‘employer’ means the
     adjutant general of the State in which the technician is employed.” Likewise, the
     Department of Labor’s regulations implementing USERRA state that “[a]
     National Guard civilian technician is considered a State employee for USERRA
     purposes, although he or she is considered a Federal employee for most other
     purposes.” 20 C.F.R. § 1002.306. The Department of Labor’s regulations go on
     to explain that, “[a]n action brought against a State Adjutant General, as an
     employer of a civilian National Guard technician, is considered an action against
     a State for purposes of determining which court has jurisdiction,” and that an
     action under USERRA against a state “may be brought in a State court of
     competent jurisdiction according to the laws of the State.”             20 C.F.R.
                                                                                       6

     § 1002.305(b), (d). We therefore conclude that the appellant’s USERRA claim
     against the Hawaii Air National Guard is not properly before the Board and we
     dismiss it for lack of jurisdiction.

                                                 ORDER
¶9            This is the final decision of the Merit Systems Protection Board regarding
     both the appellant’s USERRA claim and VEOA claim in this appeal. Title 5 of
     the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
              You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                    United States Court of Appeals
                                        for the Federal Circuit
                                      717 Madison Place, N.W.
                                       Washington, DC 20439

              The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
              If you need further information about your right to appeal this decision to
     court, you should refer to the federal law that gives you this right. It is found in
     Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
     Dec. 27, 2012). You may read this law as well as other sections of the United
     States     Code,    at   our     website,    http://www.mspb.gov/appeals/uscode/htm.
     Additional         information         is      available        at   the     court’s
     website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
                                                                                7

for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
