                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL ANTHONY                                 DOCKET NUMBER
       MONTOPOLI,                                    DC-4324-13-0666-I-1
                  Appellant,

                  v.
                                                     DATE: January 12, 2015
     NATIONAL SCIENCE
       FOUNDATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William S. Aramony, Esquire, Alexandria, Virginia, for the appellant.

           Deanne Sobczak, Esquire, Arlington, Virginia, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     §§ 4301-4333) (USERRA). 2 Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review.    Therefore, we DENY the petition for review.           Except as
     expressly modified by this Final Order, we AFFIRM the initial decision.

                                       BACKGROUND
¶2         The appellant is a physician and a member of the United States Naval
     Reserve.     Initial Appeal File (IAF), Tab 1 at 7, Tab 12 at 17.              Effective
     December 25, 2005, the agency appointed the appellant to a Senior Executive
     Service (SES) position as Section Head in the agency’s Office of Polar Programs
     (OPP).     IAF, Tab 7 at 13.     In December 2006, the agency and the appellant
     entered into a 1-year pay agreement, pursuant to which the agency paid the
     appellant a Physicians Comparability Allowance (PCA). 3 See 5 U.S.C. § 5948;



     2
       As discussed further below, in the initial decision the administrative judge found that
     the Board has jurisdiction over this appeal but denied the appellant’s request for
     corrective action under USERRA. Initial Appeal File (IAF), Tab 17, Initial Decision
     (ID) at 1-2, 4, 10. Due to an apparent inadvertent error, however, at the end of the
     initial decision the administrative judge states, “The appeal is DISMISSED.” ID at 11.
     3
      Under 5 U.S.C. § 5948(a), in order to recruit and retain highly qualified government
     physicians, an agency head may enter into a service agreement with a government
                                                                                          3

     IAF, Tab 7 at 12. The agency renewed the appellant’s PCA pay agreement for
     1-year terms in December 2007 and December 2008. 4 Id. at 10-11.
¶3         In August 2009, the appellant received orders to report for active duty.
     IAF, Tab 4 at 28. Beginning August 30, 2009, the agency placed the appellant in
     a leave-without-pay status because he was on active duty. IAF, Tab 7 at 9. The
     appellant was released from active duty in October 2012, IAF, Tab 4 at 13, and,
     effective December 23, 2012, he returned to his position with the agency. IAF,
     Tab 7 at 8. Upon his return, the agency resumed paying the appellant a PCA for
     the amount of time remaining in his December 2008 PCA pay agreement when he
     was called to active duty in August 2009.          The agency stopped paying the
     appellant a PCA on April 6, 2013, and did not renew the appellant’s PCA pay
     agreement. IAF, Tab 4 at 40.
¶4         The appellant filed an appeal with the Board alleging that the agency
     violated his rights under USERRA by not renewing his PCA pay agreement in
     April 2013. IAF, Tab 1. Specifically, the appellant claimed that, by refusing to
     renew his PCA pay agreement, the agency: (1) discriminated against him based
     on his military service; and (2) did not return him to the same status he held
     before his absence, thereby violating his reemployment rights under USERRA.
     Id. at 7-8, Tab 4 at 6-9. He requested a hearing. IAF, Tab 1 at 2.
¶5         After holding a hearing, the administrative judge issued an initial decision
     denying the appellant’s request for corrective action. Initial Decision (ID) at 2,
     10.   She found that the Board has jurisdiction over the appellant’s USERRA
     appeal; however, the appellant failed to meet his burden of showing that his



     physician which provides for the physician to complete a specified period of service in
     the agency in return for an allowance for the duration of the agreement.
     4
       Under 5 U.S.C. § 5948(d), any agreement entered into by a physician under section
     5948 shall be for a period of 1 year of service in the agency involved unless the
     physician requests an agreement for a longer period of service. There is no indication
     in the record that the appellant made such a request.
                                                                                     4

     military service was a motivating factor in the agency’s decision to decline to
     renew his PCA pay agreement when it expired in April 2013. ID at 4, 10. The
     administrative judge further found that, in any event, the agency established by
     preponderant evidence that its decision to discontinue the appellant’s PCA
     payment was based on legitimate considerations, i.e., the federal government’s
     fiscal climate. ID at 10. The administrative judge also found that the agency met
     its obligation to the appellant by returning him to like or substantially similar
     status because he was returned to his position of record and paid for the
     remainder of the PCA he was owed under the PCA pay agreement when he left
     for military service. ID at 10.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response to the petition for review. PFR File,
     Tab 6. The appellant has filed a reply to the agency’s response. PFR File, Tab 4.

                                         ANALYSIS
     The appellant did not prove that the agency discriminated against him in violation
     of USERRA by not renewing his PCA pay agreement in April 2013.
¶7         Under 38 U.S.C. § 4311(a), a person who performs uniformed service may
     not be denied reemployment, retention in employment, promotion, or any benefit
     of employment by an employer on the basis of that service. An appellant raising
     a discrimination claim under 38 U.S.C. § 4311 must prove by preponderant
     evidence that his military status was a substantial or motivating factor in the
     agency action. Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed.
     Cir. 2001). Once an appellant has met his burden of proof, the burden shifts to
     the agency to show, by preponderant evidence, that it would have taken the action
     despite the appellant’s protected status. Id. at 1014.
¶8         In finding that the appellant did not show that his military service was a
     substantial or motivating factor in the agency’s decision to terminate his PCA
     incentive, the administrative judge considered the hearing testimony of the
     appellant, the OPP Director, and a Supervisory Human Resources Specialist for
                                                                                          5

      the agency, who testified that the agency has not approved any requests for
      retention incentives since January 2012.    ID at 5-8.   Applying the factors for
      resolving credibility issues set forth in Hillen v. Department of the Army,
      35 M.S.P.R. 453, 458 (1987), the administrative judge found that all of these
      witnesses testified in a very clear, direct, and straightforward manner. ID at 8.
¶9         The administrative judge also considered the documentary evidence,
      including an April 4, 2013 memorandum from the Office of Management and
      Budget (OMB), which stated that, in light of current budgetary constraints,
      recruitment and retention incentives should be used only on a highly limited basis
      and in circumstances where they are necessary and critical to maintaining the
      agency’s mission. ID at 7; see IAF, Tab 12 at 84. During her testimony, as
      summarized in the initial decision, the OPP Director stated that she did not
      believe that paying the appellant a PCA was necessary and critical to maintaining
      the agency’s mission. ID at 7.
¶10        The administrative judge also considered the OPM regulations governing
      PCAs, including 5 C.F.R. § 595.104, which identifies four conditions that must be
      met for an agency head to determine that a significant recruitment and retention
      problem exists so as to warrant the payment of a PCA. ID at 9. These conditions
      are: (1) evidence that the agency is unable to recruit and retain physicians, such
      as vacant positions or an unacceptably high turnover rate; (2) the qualification
      requirements used as a basis for considering candidates for the vacant positions in
      the category do not exceed the qualifications that are actually necessary for
      successful performance of the work of the positions in the category; (3) the
      agency has made efforts to recruit qualified candidates for any vacant positions in
      the category and to retain physicians presently employed in positions in the
      category; and (4) a sufficient number of qualified candidates is not available to
      fill the existing vacancies in the category at the rate of pay the agency may offer
      if no comparability allowance is paid. 5 C.F.R. § 595.104.
                                                                                          6

¶11        The administrative applied these criteria and sustained the agency’s claim
      that they did not warrant giving a PCA to the appellant. ID at 9. In making this
      finding, the administrative judge credited the OPP Director’s testimony that there
      is no evidence that the agency is unable to recruit and retain physicians for the
      appellant’s position. ID at 9-10. In particular, the administrative judge found
      that the OPP Director credibly testified that: in the summer of 2012, a physician
      approached her and stated that he would like to work in OPP and would be
      willing to do so at a non-SES level; and, when she presented this information to
      the agency’s senior staff, she was informed that there were other physicians who
      had expressed a similar interest. ID at 7, 10. The administrative judge further
      found that, given the fiscal climate of the federal government, the OPP Director
      had a legitimate reason to review the appellant’s PCA to determine if it was
      warranted and that she did so consistent with OMB’s 5 guidance. ID at 10.
¶12        We find unavailing the appellant’s argument on review that the
      administrative judge erred in finding that his military service was not a
      motivating factor in discontinuing the appellant’s PCA pay. PFR File, Tab 1 at
      16-19. The OPM regulations implementing 5 U.S.C. § 5948 explicitly state that
      PCAs are paid only to categories of physicians for which the agency is
      experiencing recruitment and retention problems. 5 C.F.R. § 595.101. The OPP
      Director’s hearing testimony established that the agency was not experiencing
      recruitment and retention problems when the appellant’s PCA agreement expired
      in April 2013, as other physicians had expressed an interest in the appellant’s
      position. See ID at 7. Therefore, the conditions for renewing the PCA agreement
      were not met. In light of these circumstances, the administrative judge properly
      concluded that the appellant failed to show that his military service was a
      substantial or motivating factor in the agency’s decision to decline to renew his
      PCA agreement in April 2013. ID at 10.
      5
       Due to an apparent inadvertent error, the administrative judge cited “OPM’s April 13,
      2013 guidance” instead of OMB’s April 4, 2013 guidance. ID at 10.
                                                                                            7

      The agency did not violate the appellant’s reemployment rights under USERRA
      by declining to renew his PCA agreement in April 2013.
¶13         A reemployment claim arises under USERRA when an employee alleges
      that an agency has not met its obligations under 38 U.S.C. §§ 4312-4318
      following his absence from civilian employment to perform uniformed service.
      Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005). Under 38 U.S.C.
      § 4313(a)(2)(A), a person whose period of uniformed service was more than 90
      days is entitled to reemployment in the position in which he would have been
      employed if his continuous employment had not been interrupted by such
      service, 6 or a position of like seniority, status and pay, the duties of which he is
      qualified to perform. Unlike discrimination cases, an individual’s rights under
      USERRA’s reemployment provisions do not depend on the motivation for an
      agency’s action (or inaction), and the agency bears the burden of proving that it
      met its statutory obligations. Clavin, 99 M.S.P.R. 619, ¶ 6.
¶14         The appellant alleges on review that the administrative judge improperly
      failed to address his reemployment claim under USERRA, and he reasserts his
      argument that, by refusing to renew his PCA pay agreement following his return
      from active duty, the agency, in violation of 38 U.S.C. § 4313(a), did not return
      him to the same employment status that he occupied before his active duty
      military service. PFR File, Tab 1 at 5, 7-14; IAF, Tab 1 at 7-8, Tab 4 at 6-7. The
      appellant further contends on review, as he did below, that, in analyzing his
      reemployment claim, the Board should apply the rationale of the First Circuit
      Court of Appeals in Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, 730 F.3d
      49 (1st Cir. 2013). PFR File, Tab 1 at 9-11; IAF, Tab 15 at 4-7. In that case, the

      6
        This position is the “escalator position.” See 20 C.F.R. § 1002.191. The principle
      behind the escalator position is that, if not for the period of uniformed service, the
      employee could have been promoted (or, alternatively, demoted, transferred, or laid off)
      due to intervening events. Id. The escalator principle requires that the employee be
      reemployed in a position that reflects with reasonable certainty the pay, benefits,
      seniority, and other job perquisites that he or she would have attained if not for the
      period of service. Id.
                                                                                          8

      First Circuit held that the escalator principle and reasonable certainty test
      governing reemployment claims under USERRA apply to non-automatic (i.e.,
      discretionary) promotions as well as automatic promotions. 7       Rivera-Melendez,
      730 F.3d at 58.
¶15        Contrary to the appellant’s assertion on review, the administrative judge did
      address his reemployment claim in the initial decision. The administrative judge
      rejected the appellant’s argument that the agency did not return him to the same
      status he held before active duty, finding that the agency met its obligation to the
      appellant by returning him to like or substantially similar status. ID at 10. In
      making this finding, the administrative judge noted that the agency returned the
      appellant to his position of record and paid him for the remainder of the PCA he
      was owed under the contract when he left for military service. ID at 10. As for
      the appellant’s argument that Rivera-Melendez is applicable in this case, the
      administrative judge stated that her holding would be the same under either
      framework (i.e., regardless of whether the Board applied the escalator principle
      only to discretionary benefits or to both discretionary and nondiscretionary
      benefits). ID at 10-11 n.1.
¶16        The appellant argues on review that “[i]t was reasonably certain that [he]
      would be paid the PCA pay after he returned from active duty” and, therefore,
      “[t]he fact that he was denied the PCA benefit of employment meant that he was


      7
        In Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512 (2014), which was
      issued while this appeal was pending on review, the Board similarly held that the
      escalator principle and its associated reasonable certainty test apply to reemployment
      claims under USERRA regardless of whether the agency action in question is
      discretionary. Id., ¶¶ 12-13. In so holding, the Board overruled prior case law that
      limited the application of the escalator principle to nondiscretionary benefits on the
      theory that these are the only benefits which would have been reasonably certain to
      have accrued during the employee’s absence. Id., ¶ 13 (overruling West v. Department
      of the Air Force, 117 M.S.P.R. 24, ¶¶ 8-9 (2011), and Leite v. Department of the Army,
      109 M.S.P.R. 229, ¶¶ 10-11 (2008), to the extent that the Board’s holdings in those
      cases are premised on the assumption that discretionary personnel actions inherently
      fail the reasonable certainty test).
                                                                                     9

      not returned to the same status.” PFR File, Tab 1 at 10-11. In support of this
      argument, the appellant asserts that: he had received PCA pay every year that he
      worked at the agency, except while on active military duty; and the agency
      represented to Congress, via the budget requests it submitted to OMB, that it
      intended to pay him a PCA when he returned from military duty. Id. at 11-12. In
      that regard, the appellant notes that the agency informed OMB in its budget
      requests for Fiscal Years 2013 and 2014 that it expected to “resume PCA
      payments” to the appellant upon his return from military service. Id. at 12; see
      IAF, Tab 12 at 60, 80.
¶17        We find the appellant’s argument unavailing. The fact that the appellant
      had received a PCA pay agreement every year since 2006 (excluding the years in
      which he was on active duty military service) does not mean that the agency was
      required by USERRA to renew the appellant’s PCA pay agreement when it
      expired in April 2013. As the administrative judge explained, the appellant was
      not entitled to a PCA in perpetuity.     ID at 10.   Further, consistent with its
      representations to OMB, the agency, in fact, did resume paying the appellant a
      PCA upon his return from military service. Although the agency did not renew
      the appellant’s PCA agreement in April 2013, we find that it had no obligation to
      do so. Rather, we agree with the administrative judge that the agency met its
      reemployment obligations under USERRA by returning the appellant to his
      position of record following his return from military service and paying the
      appellant a PCA for the amount of time remaining in his December 2008 PCA pay
      agreement when he left for military service in 2009. ID at 10.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
                                                                                 10

final decision.    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 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
                                                                           11

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.
