                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSE I. VALLE,                                  DOCKET NUMBER
                         Appellant,                  NY-3330-15-0292-I-1

                  v.

     SOCIAL SECURITY                                 DATE: April 14, 2016
       ADMINISTRATION,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Rafael Arroyo, San Juan, Puerto Rico, for the appellant.

           David B. Myers, New York, New York, 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 the appeal for lack of jurisdiction and based on a failure to state a
     claim. For the reasons discussed below, we GRANT the appellant’s petition for
     review, AFFIRM the finding that the Board lacks jurisdiction under 5 U.S.C.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     chapter 75 and 5 C.F.R. part 315, subpart H, REVERSE the finding that the
     Board lacks jurisdiction over the appellant’s Veterans Employment Opportunities
     Act of 1998 (VEOA) claim, DISMISS the VEOA claim for failure to state a claim
     upon which relief may be granted, VACATE the finding that the appellant failed
     to state a claim upon which relief may be granted under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA), and REMAND the case to the field office for further
     adjudication of the USERRA claim in accordance with this Order.

                                      BACKGROUND
¶2         The appellant filed an appeal challenging his termination from the position
     of Social Insurance Specialist during his probationary period. Initial Appeal File
     (IAF), Tab 1.        The appellant alleged that, because he had completed a
     probationary period in a previous position, the agency erred by removing him
     without providing him with due process. Id. at 6. The appellant also alleged that
     the agency denied him a benefit of employment under VEOA by not reinstating
     him when he was appointed to his position.       Id.   The appellant requested a
     hearing. Id. at 2.
¶3         The administrative judge notified the appellant of the jurisdictional
     requirements for a claim under VEOA and ordered him to file evidence and
     argument establishing the Board’s jurisdiction over his claim. IAF, Tab 3. The
     administrative judge also provided the appellant with notice of the jurisdictional
     requirement for a probationary termination claim and ordered the appellant to file
     evidence and argument establishing the Board’s jurisdiction over such a claim.
     IAF, Tab 4.
¶4         In response to the show cause order concerning VEOA jurisdiction, the
     appellant argued that the agency violated his veterans’ preference rights by
     failing to reinstate him to a career-conditional position pursuant to 5 C.F.R.
     § 315.401(b), rather than hiring him from a certificate after it issued a vacancy
                                                                                        3

     announcement for which he applied. IAF, Tab 6 at 4-5. The appellant further
     argued that the agency’s failure to reinstate him violated USERRA.         Id.   The
     administrative judge notified the appellant of the jurisdictional requirements
     under USERRA and ordered him to file evidence and argument that would
     establish the Board’s jurisdiction over a USERRA claim.         IAF, Tab 14.     The
     appellant filed a response concerning USERRA jurisdiction asserting that the
     agency was motivated by “antimilitary animus” when it terminated his
     employment. IAF, Tab 15 at 8.
¶5            On September 30, 2015, the administrative judge issued an initial decision,
     without holding a hearing, finding that the Board lacks jurisdiction under
     5 U.S.C. chapter 75 because the appellant does not meet the statutory definition
     of “employee.” IAF, Tab 16, Initial Decision (ID) at 6-11. The administrative
     judge further found that the Board lacks jurisdiction over the appeal under
     5 C.F.R. part 315, subpart H, and VEOA, ID at 11-17, and that the appellant
     failed to state a claim upon which relief could be granted under USERRA, ID
     at 17-21. The initial decision notified the parties that it would become final on
     November 4, 2015, if neither party filed a petition for review by that date. ID
     at 22.
¶6            Using the Board’s electronic filing system at e-Appeal Online, the
     appellant filed a blank petition for review form 6 minutes after midnight on
     November 5, 2015. Petition for Review (PFR) File, Tab 1. The appellant filed
     his completed petition for review about 24 minutes later. PFR File, Tab 2. The
     Clerk of the Board notified the appellant that his petition for review appeared to
     be untimely and advised him how to file a motion requesting that the petition be
     accepted as timely or that the filing deadline be waived for good cause shown.
     PFR File, Tab 3. The appellant filed a motion to have the filing deadline waived
     because he acted diligently by filing the petition as soon as he became aware of
     the error in his initial filing. PFR File, Tab 4 at 5-6. The agency responded that
                                                                                       4

     the petition should be dismissed as untimely or denied on the merits. PFR File,
     Tab 5.

                                         ANALYSIS
     The appellant has shown good cause for untimely filing his petition for review.
¶7            To establish good cause for the untimely filing of an appeal, a party must
     show that he exercised due diligence or ordinary prudence under the particular
     circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980). To determine whether an appellant has shown good cause, 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).
¶8            We find that the appellant exercised due diligence and ordinary prudence
     under the circumstances by immediately refiling his petition after he realized that
     he had mistakenly filed a blank copy. PFR File, Tab 4. According to the Board’s
     e‑Appeal logs, the appellant’s representative logged into the e-Appeal system at
     9:03 p.m. on November 4, 2015, and started to submit the petition for review at
     11:49 p.m. Although this original pleading was blank, the e-Appeal logs show
     that the appellant’s representative refiled the correct pleading less than half an
     hour later.    Given the appellant’s representative’s attempts to file before the
     deadline and the minimal filing delay, we find that the appellant has shown good
     cause for the untimely filing.      See Social Security Administration v. Price,
     94 M.S.P.R. 337, ¶ 7 (2003) (finding that the agency exercised due diligence and
     showed good cause for filing a petition for review 34 minutes late where its
     attorney began sending the petition prior to the filing deadline but had technical
                                                                                            5

     problems), aff’d, 398 F.3d 1322 (Fed. Cir. 2005). The agency has not shown that
     it was prejudiced by the short delay, and, under the circumstances, we waive the
     filing deadline. See id.
     The Board lacks jurisdiction over the appellant’s probationary termination claim
     under 5 U.S.C. chapter 75 and 5 C.F.R. part 315, subpart H.
¶9         Because the appellant’s appointment to a position in the competitive
     service was terminated, he must satisfy the definition of “employee” set forth at
     5 U.S.C. § 7511(a)(1)(A) to have Board appeal rights under 5 U.S.C. chapter 75.
     See Henderson v. Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To
     qualify as an “employee,” the appellant must show that he was not serving in a
     probationary or trial period under an initial appointment or had completed 1 year
     of current, continuous service under other than a temporary appointment limited
     to 1 year or less.   5 U.S.C. § 7511(a)(1)(A); McCormick v. Department of the
     Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002).            The Standard Form 50
     (SF‑50) documenting the appellant’s appointment states that his appointment was
     subject to a 1-year probationary period beginning on May 12, 2014. IAF, Tab 12
     at 11. The SF-50 documenting the termination of the appellant’s appointment
     states that the effective date was May 8, 2015. IAF, Tab 11 at 4. We agree with
     the administrative judge’s findings that the appellant had not completed the
     required 1-year probationary period, ID at 7-8, and had not completed 1 year of
     current continuous service, ID at 10-11. 2 The administrative judge appropriately

     2
       An appellant who has not served a full year under his appointment can show that he
     has completed his probationary period and is no longer a probationer by tacking on
     prior service if: (1) the prior service was rendered immediately preceding the
     probationary appointment; (2) it was performed in the same agency; (3) it was
     performed in the same line of work; and (4) it was completed with no more than one
     break in service of less than 30 days. Hurston v. Department of the Army, 113 M.S.P.R.
     34, ¶ 9 (2010). Alternatively, an individual can show that, while he may be a
     probationer, he is an “employee” with chapter 75 appeal rights because, immediately
     preceding the adverse action, he had completed at least 1 year of current continuous
     service in the competitive service without a break in Federal civilian employment of a
     workday. Id. As set forth in the initial decision, neither the appellant’s prior military
     service, nor his civilian service with the Environmental Protection Agency that ended in
                                                                                             6

      concluded that the Board lacks jurisdiction under 5 U.S.C. chapter 75.                ID
      at 6‑11. We also agree with the administrative judge’s finding that the Board
      lacks jurisdiction under 5 C.F.R. part 315, subpart H, because the appellant
      has not alleged that his probationary termination was based on partisan political
      reasons, marital status, or preappointment reasons, ID at 11-12; see 5 C.F.R.
      §§ 315.805-315.806.
      The Board has jurisdiction over the appellant’s VEOA claim, but he is not
      entitled to corrective action.
¶10            To establish the Board’s jurisdiction over a VEOA claim based on an
      alleged violation of veterans’ preference rights, an appellant must show that he
      exhausted his remedy with the Department of Labor and make a nonfrivolous
      allegation of the following: (1) he is a preference eligible within the meaning of
      VEOA; (2) the action at issue took place on or after the October 30, 1998
      enactment of VEOA; and (3) the agency violated his rights under a statute or
      regulation relating to veterans’ preference.       Haasz v. Department of Veterans
      Affairs, 108 M.S.P.R. 349, ¶ 6 (2008). An appellant need not state a claim upon
      which relief can be granted for the Board to have jurisdiction over a VEOA
      claim.     Id.   The Board has held that an allegation in general terms that an
      appellant’s veterans’ preference rights were violated is sufficient to meet the
      nonfrivolous allegation requirement. Id., ¶ 7.
¶11            As found by the administrative judge, the appellant has shown that he
      exhausted his administrative remedies with the Department of Labor. ID at 14.
      The appellant also has submitted undisputed evidence that he is a preference
      eligible within the meaning of VEOA.          IAF, Tab 6 at 7-9.      Additionally, the
      actions at issue took place after VEOA’s enactment date.            The administrative
      judge found that the appellant failed to establish jurisdiction because he failed to

      2012, qualified under either of these alternatives. ID at 8-11; see Bell v. Department of
      Homeland Security, 95 M.S.P.R. 580, ¶¶ 15-18 (2004) (explaining that military service
      cannot be tacked onto civilian service to meet the current continuous service
      requirements of 5 U.S.C. § 7511(a)).
                                                                                          7

      make a nonfrivolous allegation that the agency violated a statute or regulation
      pertaining to veterans’ preference. ID at 14-17. The appellant alleges that the
      agency   denied   him    veterans’   preference   by   failing   to   reinstate   him
      noncompetitively to his position, rather than hiring him after he applied for the
      position in response to a vacancy announcement.           PFR File, Tab 2 at 6-7.
      Veterans’   preference    statutes   and    regulations   permit      noncompetitive
      appointments to positions in the competitive service for certain veterans. See
      Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 6 (2001).
      Therefore, the appellant has alleged that the agency violated his rights under a
      statute or regulation relating to veterans’ preference, which is sufficient to meet
      the nonfrivolous allegation requirement.       See Elliott v. Department of the
      Air Force, 102 M.S.P.R. 364, ¶ 8 (2006) (finding that an allegation by an
      appellant, in general terms, that his veterans’ preference rights were violated is
      sufficient to meet the nonfrivolous allegation requirement).
¶12         Although we modify the initial decision to find that the Board has
      jurisdiction over the appellant’s VEOA claim, we find that the appellant is not
      entitled to corrective action under VEOA. An appeal that is within the Board’s
      jurisdiction can be dismissed for failure to state a claim upon which relief can be
      granted if the appellant cannot obtain effective relief before the Board even if his
      allegations are accepted as true. Alford v. Department of Defense, 113 M.S.P.R.
      263, ¶ 11 (2010), aff’d, 407 F. App’x 458 (Fed. Cir. 2011). Dismissal for failure
      to state a claim is appropriate only if, taking the appellant’s allegations as true
      and drawing all reasonable inferences in his favor, he cannot prevail as a matter
      of law. Id. The appellant contends that the agency violated his right to veterans’
      preference by selecting him through competitive procedures and requiring him to
      serve a probationary period instead of reinstating him. PFR File, Tab 2 at 6‑8.
      The appellant has cited no authority, and we know of none, that would require an
      agency to reinstate a preference-eligible veteran who has applied for a position
      through the competitive process. On the contrary, agencies have discretion to fill
                                                                                          8

      positions by any authorized method. 5 C.F.R. § 330.102. Thus, we find that the
      appellant’s claim is not one on which corrective action under VEOA can be
      granted, and we dismiss the VEOA claim, without the requested hearing, based
      on a failure to state a claim.
      The appellant has established jurisdiction over his USERRA discrimination claim
      under 38 U.S.C. § 4311(a) and is entitled to a hearing.
¶13         USERRA provides, in relevant part, that a person who has performed
      service in a uniformed service shall not be denied initial employment,
      reemployment,     retention      in   employment,   promotion,   or   any benefit   of
      employment on the basis of performance of that service. 38 U.S.C. § 4311(a).
      To establish the Board’s jurisdiction over a USERRA discrimination claim
      arising under 38 U.S.C. § 4311(a), the appellant must allege the following: (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.
      Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009).              It is well
      established that a claim of discrimination under USERRA should be broadly and
      liberally construed in determining whether it is nonfrivolous. Id., ¶ 9.
¶14         The appellant has presented undisputed evidence that he performed duty in
      a uniformed service. IAF, Tab 6 at 7-8. It is also undisputed that the agency
      terminated his employment. IAF, Tab 11 at 4-8. In response to the agency’s
      motion to dismiss the USERRA claim for lack of jurisdiction, the appellant
      alleged, among other things, that his termination was motivated by “antimilitary
      animus.” IAF, Tab 15 at 8. The appellant alleged that the agency has shown
      hostility toward disabled veterans, active duty military hires, and has placed them
      at a disadvantage with other employees not in the military, or with preference
      eligibles “as it did when terminating [him] for unfounded reasons under the guise
      of temporary status employee.”           Id.   The appellant’s allegations are vague;
                                                                                           9

      however, lack of specificity is not a basis for finding that the Board lacks
      jurisdiction over his USERRA claim. See Searcy v. Department of Agriculture,
      115 M.S.P.R. 260, ¶¶ 7‑8 (2010); Swidecki v. Department of Commerce,
      113 M.S.P.R. 168, ¶ 6 (2010).          We find that the appellant’s claim is a
      nonfrivolous allegation of a USERRA violation and sufficient to establish the
      Board’s jurisdiction.    See Yates v. Merit Systems Protection Board, 145 F.3d
      1480, 1484-85 (Fed. Cir. 1998) (finding that a claim that a probationary
      termination was the result of military service was within the Board’s jurisdiction
      under    USERRA      even    without    an   express   reference   to   USERRA      or
      discrimination).
¶15           The initial decision states that, even if the Board has jurisdiction over the
      appellant’s USERRA claim, the claim should be dismissed for failure to state a
      claim upon which relief can be granted. 3 ID at 19. We do not agree. Dismissal
      for failure to state a claim upon which relief can be granted is a decision on the
      merits. Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 12 (2009). Once an
      appellant has established the Board’s jurisdiction over his USERRA claim, he is
      entitled to a hearing on the merits.           Gossage v. Department of Labor,
      118 M.S.P.R. 455, ¶ 10 (2012).
¶16           The administrative judge cites Haasz to support dismissing the appellant’s
      USERRA claim for failure to state a claim. ID at 18. However, Haasz does not
      support her conclusion. Haasz is a VEOA appeal in which the Board noted that
      USERRA was unlike VEOA because USERRA grants an appellant an
      unconditional right to a hearing once the appeal reaches the merits stage, whereas
      VEOA does not. Haasz, 108 M.S.P.R. 349, ¶ 9. While the Board can adjudicate
      the merits of the appellant’s VEOA claim without a hearing, the same disposition

      3
        The administrative judge’s finding regarding jurisdiction over the USERRA claim is
      unclear. The initial decision states that the Board lacks jurisdiction under USERRA.
      ID at 17. However, the administrative judge also adjudicated the merits of the claim by
      dismissing it for failure to state a claim. ID at 21.
                                                                                         10

      is not appropriate for his USERRA claim. See Kirkendall v. Department of the
      Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007).
¶17          Both the administrative judge and the agency note the lack of facts and
      evidence supporting the appellant’s USERRA claim.            ID at 19-21; PFR File,
      Tab 5 at 13. The appellant acknowledged below that the record is incomplete, but
      argued that discovery is needed to complete the record and address the merits of
      his claim. IAF, Tab 15 at 7-8. The agency states that the appellant failed to
      timely file discovery requests. PFR File, Tab 5 at 13 n.4. The administrative
      judge should determine whether the appellant is entitled to discovery on remand.
¶18            Even if the appellant has waived his right to discovery, the lack of evidence
      to support his USERRA claim is not a basis for dismissing the claim without
      holding a hearing.       See Wilson, 111 M.S.P.R. 54, ¶¶ 9‑10.         Rather, if the
      appellant fails to develop his contentions, his claim should be denied on the
      merits after providing him with the hearing he has requested and to which he is
      entitled.    See Kirkendall, 479 F.3d at 846; Swidecki, 113 M.S.P.R. 168, ¶ 6;
      Baker v. Department of Homeland Security, 111 M.S.P.R. 277, ¶ 18 (2009).

                                             ORDER
¶19            For the reasons discussed above, we remand this case to the field office for
      further adjudication of the USERRA claim in accordance with this Remand
      Order.




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