                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 61

                             Docket No. SF-4324-13-1061-I-1

                                 Jennifer J. Erlendson,
                                       Appellant,
                                            v.
                                Department of Justice,
                                         Agency.
                                      August 4, 2014

           Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

           Chad Y. Tang, Esquire, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her Uniformed Services Employment and Reemployment Rights Act of
     1994 (USERRA) appeal for lack of jurisdiction. Petition for Review (PFR) File,
     Tab 1.     Because the appellant is an employee of the Federal Bureau of
     Investigation (FBI), which is expressly excluded from the definition of an
     employer for purposes of the Board’s USERRA jurisdiction, we AFFIRM the
     initial decision.
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                                      BACKGROUND
¶2         The appellant serves as an Intelligence Analyst with the FBI.            Initial
     Appeal File (IAF), Tab 1 at 1. In her initial appeal to the Board, the appellant
     alleged that she was challenging a “USERRA motivated denial of benefits and
     hostile work environment,” and that “Agency manager(s) have discriminated
     against me due to my use of military leave by denying me benefits of
     employment, as well as placing me in a hostile work environment due to my
     military leave usage.” Id. at 2. The agency moved to dismiss the appellant’s
     USERRA appeal for lack of jurisdiction, arguing that the Board lacks
     “jurisdiction over USERRA claims by FBI employees because the FBI is
     specifically excluded from the applicable statute.” IAF, Tab 4 at 5. In response,
     the appellant argued that generic claims of discrimination under USERRA “ought
     to be treated differently from those cases of employment and reemployment
     because the USERRA statute appears to reference and treat those claims
     differently.” IAF, Tab 6 at 6.
¶3         The administrative judge dismissed the appellant’s USERRA appeal for
     lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1. The administrative
     judge found that, regardless of either the appellant’s employment in the excepted
     service, or the nature of her USERRA claims, the Board lacks jurisdiction over
     her   USERRA     appeal   because   the   FBI   is   specifically   excluded    from
     38 U.S.C. § 4324, the statutory provision giving most federal employees the right
     to, inter alia, file a USERRA appeal directly with the Board. ID at 3; 38 U.S.C.
     § 4324(b).   In reaching his conclusion, the administrative judge relied on a
     decision from the U.S. Court of Appeals for the Second Circuit as persuasive
     authority for the proposition that FBI employees cannot file USERRA appeals
     with the Board. ID at 4 (citing Dew v. United States, 192 F.3d 366, 372 (2d Cir.
     1999)).
¶4         The appellant has filed a petition for review arguing that the administrative
     judge wrongly relied on Dew and that he overlooked the Board’s decision in
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     Petersen v. Department of the Interior, 71 M.S.P.R. 227 (1996), which found that
     an appellant could maintain a hostile work environment claim based on military
     service under USERRA.      PFR File, Tab 1 at 3, 10.      The agency has filed a
     response to the petition for review. PFR File, Tab 4.

                                         ANALYSIS
     The Board lacks jurisdiction over the appellant’s USERRA appeal.
¶5         There are two types of cases that arise under USERRA: (1) reemployment
     cases, in which an 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) discrimination cases, in which
     the appellant claims that an agency has committed one of seven actions that are
     prohibited if motivated by one of nine enumerated reasons, as set forth in
     38 U.S.C. § 4311(a) and (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5
     (2005). The Board’s jurisdiction over both types of USERRA claims is based on
     38 U.S.C. § 4324(b) and (c). Section 4324(b) provides in relevant part to this
     matter that “[a] person may submit a complaint against a Federal executive
     agency . . . directly to the Merit Systems Protection Board” provided that she did
     not first file a USERRA complaint with the Secretary of Labor.             38 U.S.C.
     § 4324(b)(1); see Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012).
¶6         Dispositive to the resolution of this appeal is the definition of a “Federal
     executive agency” under section 4324. Under chapter 43 of Title 38, “Federal
     executive agency” includes “any Executive agency (as that term is defined in
     section 105 of title 5) other than an agency referred to                   in section
     2302(a)(2)(C)(ii) of title 5.”      38 U.S.C. § 4303(5); see also 5 C.F.R.
     § 353.102(2).    The    FBI   is   among   those   agencies   explicitly    listed   in
     5 U.S.C. § 2302(a)(2)(C)(ii) which are excluded from the definition of “Federal
     executive agency” for the purposes of filing a USERRA appeal with the Board
                                                                                         4

under 5 U.S.C. § 4324(b). 1 Accordingly, we find that the Board lacks jurisdiction
over the appellant’s USERRA appeal alleging a hostile work environment against
the FBI. Cf. Alford v. Department of Defense, 113 M.S.P.R. 263, ¶ 15 (2010),
aff’d, 407 F. App’x 458 (Fed. Cir. 2011) (finding that an employee of the Defense
Intelligence Agency, which is among the agencies listed in 5 U.S.C.
§ 2302(a)(2)(C)(ii), cannot file a USERRA appeal with the Board); 2 Hereford v.
Tennessee Valley Authority, 88 M.S.P.R. 201, ¶ 10 (2001) (USERRA defines
Federal executive agencies to include executive agencies as defined in 5 U.S.C.
§ 105, other than intelligence agencies). We further conclude that the nature of
the appellant’s USERRA claim—i.e., whether she is asserting a reemployment
claim or a discrimination claim—does not change our analysis because the
Board’s jurisdiction over both types of claims derives from 38 U.S.C. § 4324(b).
See Clavin, 99 M.S.P.R. 619, ¶ 5. 3


1
  Section 2302(a)(2)(C)(ii) currently provides that the term “agency” does not include:
“(I) the [FBI], the Central Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National Security Agency, the Office of
the Director of National Intelligence, and the National Reconnaissance Office; and
(II) as determined by the President, any executive agency or unit thereof the principal
function of which is the conduct of foreign intelligence or counterintelligence activities,
provided that the determination be made prior to a personnel action.” 5 U.S.C.
§ 2302(a)(2)(C)(ii).
2
  The appellant argues on petition for review that the Federal Circuit’s decision in
Alford is not binding authority because it is a nonprecendential decision of that court.
PFR File, Tab 1 at 5. The Board, however, may choose to follow nonprecedential
decisions issued by the Federal Circuit which it finds persuasive. See Dean v. Office of
Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010). The Federal Circuit’s decision
in Alford, moreover, affirmed the Board’s precedential Opinion and Order, which we
find germane to the issues raised in this appeal.
3
  As explained by the administrative judge, employees of agencies listed under
5 U.S.C. § 2302(a)(2)(C)(ii) are not completely left without redress of certain
USERRA-based allegations of wrongdoing; pursuant to 5 U.S.C. § 4325, employees of
such agencies, including the FBI, may submit a claim involving reemployment rights to
the agency’s inspector general for investigation and resolution. See 5 U.S.C. § 4325(b);
Dew, 192 F.3d at 372-73; ID at 4.
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¶7         The appellant cites the Board’s decision in Petersen v. Department of the
     Interior, 71 M.S.P.R. 227 (1996), in support of her argument that the Board has
     jurisdiction over her appeal. PFR File, Tab 1 at 3, 6-9. However, the appellant’s
     reliance on Petersen for purposes of establishing jurisdiction is misplaced. In
     Petersen, the Board held that an appellant can assert a hostile work environment
     claim under 38 U.S.C. § 4311(a) in a USERRA appeal before the Board, provided
     that “the appellant has otherwise met the jurisdictional and timeliness
     requirements.”    Petersen, 71 M.S.P.R. at 237-239.          Thus, the assertion of a
     hostile work environment claim is not itself a basis for Board jurisdiction; rather,
     it is a matter the Board may adjudicate in an appeal in which it has otherwise
     been granted jurisdiction.     Accordingly, we find that the administrative judge
     correctly dismissed the appellant’s USERRA appeal for lack of jurisdiction. 4

                                             ORDER
¶8         The initial decision dismissing the appellant’s USERRA appeal for lack of
     jurisdiction is AFFIRMED.        This is the final decision of the Merit Systems
     Protection Board 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:




     4
       Because the Second Circuit’s decision in Dew provides additional, persuasive support
     for dismissal of the appellant’s claim, we find that the administrative judge did not err
     in considering and citing it. See Mitchell v. Office of Personnel Management,
     97 M.S.P.R. 566, ¶ 12 n.1 (2004) (although it was not binding precedent, the Board
     followed a federal district court case it found persuasive).
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                               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 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                         7

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.
