                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2016 MSPB 31

                             Docket No. AT-4324-11-0442-I-1

                                 Kelly Stephen Jennings,
                                         Appellant,
                                              v.
                             Social Security Administration,
                                          Agency.
                                     September 13, 2016

           Robert W. Hughes, Esquire, Duluth, Georgia, for the appellant.

           John Benson, Esquire, Boston, Massachusetts, for the agency.

           Meeka S. Drayton, Esquire, Baltimore, Maryland, for the agency.

           William L. Hogan, Esquire, Atlanta, Georgia, for the agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellant has filed a petition for review, and the agency has filed a
     cross petition for review of the initial decision, which ordered corrective action in
     this appeal filed under the Uniformed Services Employment and Reemployment
     Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA).
     For the reasons discussed below, we GRANT the petition for review, FIND that
     we need not address the cross petition for review at this time, AFFIRM the initial
     decision’s finding that res judicata precludes consideration of the appellant’s
                                                                                        2

     claim that he should be reemployed and reinstated as an administrative law judge,
     VACATE the remainder of the initial decision, and REMAND this case to the
     administrative law judge for further adjudication in accordance with this Order.

                                     BACKGROUND
¶2         On August 16, 2007, the agency filed a complaint under 5 U.S.C. § 7521
     (Jennings I) proposing to remove the appellant from his administrative law judge
     position.       Social    Security    Administration     v.   Jennings,     MSPB
     Docket No. CB-7521-07-0026-T-1, Initial Appeal File (0026 IAF), Tab 1. The
     complaint set forth charges of Failure to Fully Disclose His Active Duty Status
     with the U.S. Army, Improper Dual Employment, Lack of Candor, Failure to
     Follow the Agency’s Time and Attendance Procedures, and Failure to Follow the
     Agency’s Flexiplace Procedures. 0026 IAF, Tab 1 at 10‑12, Tab 71 at 2. The
     agency alleged that for 3 years the appellant was in a continuous active duty
     status with the U.S. Army Reserves, for which he was paid, while simultaneously
     being employed and paid by the agency. 0026 IAF, Tab 1 at 2, 6, 12.
¶3         After the appellant filed an answer to the complaint, an administrative law
     judge held a hearing and issued a June 16, 2008 initial decision finding that the
     agency had established good cause to remove the appellant. 0026 IAF, Tab 71,
     0026 Initial Decision at 3.   The administrative law judge determined that the
     agency had proven all of its charges and that removal was an appropriate penalty.
     Id. at 3-36. The Board denied the appellant’s petition for review of that initial
     decision, finding that there was no new, previously unavailable evidence and that
     the administrative law judge made no error in law or regulation that affected the
     outcome of the case. Social Security Administration v. Jennings, MSPB Docket
     No. CB-7521-07-0026-T-1, Final Order (Jan. 6, 2009). The Board held that the
     initial decision issued by the administrative law judge was final and authorized
     the agency to remove the appellant from his position. Id. at 2. The U.S. Court of
     Appeals for the Federal Circuit affirmed the Board’s decision, finding that the
                                                                                        3

     record supported the decision to sustain the charges and that the penalty of
     removal was appropriate based on the appellant’s lengthy and intentional
     concealment of his military service for personal gain. Jennings v. Social Security
     Administration, 407 F. App’x 467 (Fed. Cir. 2011).        The U.S. Supreme Court
     denied the appellant’s petition for a writ of certiorari. Jennings v. Social Security
     Administration, 132 S. Ct. 116 (2011) (Mem.).
¶4         While Jennings I was pending before the administrative law judge, the
     agency determined in November 2007, and in April 2008, that the appellant
     should not have been compensated for his work for the agency while he was on
     active duty with the military, amended its time and attendance records so as to
     retroactively place him on leave without pay (LWOP) for the active-duty period,
     and notified him of a debt he owed the agency for the resulting salary
     overpayment. Initial Appeal File (IAF), Tab 51 at 133-60. The agency issued
     Standard Forms 50 (SF-50s) reflecting the retroactive LWOP placement. IAF,
     Tab 110 at 11-13. Following a hearing before the Departmental Appeals Board
     (DAB), which is an entity that provides independent, impartial review of certain
     disputed issues within the Department of Health and Human Services, an
     administrative law judge ruled on August 17, 2009, that the appellant owed the
     agency a salary overpayment in the amount of $427,784. IAF, Tab 51 at 12-49.
¶5         The appellant filed this appeal on February 3, 2011, alleging that the
     agency denied him certain rights and benefits under USERRA, including the right
     to reemployment, continuation of employment, and the use of military, annual,
     and sick leave.     IAF, Tab 1 at 3, 5-6.    He further asserted that the agency
     retroactively placed him on LWOP during the 3 years in question, which resulted
     in the revocation of his previously approved leave and a debt for an alleged salary
     overpayment.      Id. at 6.   According to the appellant, the agency’s action of
     retroactively placing him on LWOP was a reduction in pay and suspension that
     the agency improperly implemented without first filing a complaint with the
                                                                                       4

     Board under 5 U.S.C. § 7521 and proving that there was good cause for such
     actions. IAF, Tab 105 at 9-13.
¶6         The appellant also asserted that the administrative law judge in Jennings I
     did not notify him of his rights under USERRA and did not address his USERRA
     affirmative defense, even though he raised such a claim in that case, and that the
     Board should reopen its decision in Jennings I to resolve that issue. IAF, Tab 1
     at 5-6, Tab 14. The appellant requested that the Board, among other things, order
     the agency to cancel the SF-50s placing him on retroactive LWOP, reinstate his
     leave, cancel the debt, and reopen Jennings I and reinstate him to his position as
     an administrative law judge with the agency with back pay. IAF, Tab 14 at 7.
¶7         After a hearing, the administrative law judge rejected the appellant’s
     assertion that he is entitled to reemployment or reinstatement with back pay on
     the basis of a USERRA violation. IAF, Tab 115, Initial Decision (ID) at 19-21.
     The administrative law judge found that this claim was barred by the doctrine of
     res judicata, even though in Jennings I, the initial decision, the Board’s final
     order, and the ensuing decision by the Federal Circuit did not expressly address
     the USERRA claim. Id. In this regard, the administrative law judge held that
     “res judicata does not require that the court address[] the claim in its judgment on
     the merits.” ID at 20.
¶8         The administrative law judge also rejected the appellant’s contention that
     the agency improperly reduced his pay and suspended him without filing a
     complaint and having the Board find good cause for that action under 5 U.S.C.
     § 7521. ID at 21-24. The administrative law judge held that the agency’s actions
     of retroactively placing the appellant on LWOP, amending his time and
     attendance records, referring his debt to the DAB, and using funds from his Thrift
     Savings Plan (TSP) account to repay part of the debt were not covered actions
     under 5 U.S.C. § 7521(b). ID at 22-24. The administrative law judge reasoned
     that the agency did not reduce the appellant’s pay because it did not reduce his
     rate of pay, did not suspend him because it did not place him, for disciplinary
                                                                                      5

      reasons, in a nonduty status, and did not constructively suspend him because his
      absence was voluntary. Id. at 22-24.
¶9          Regarding the appellant’s USERRA claim, the administrative law judge
      held that, although the agency denied the appellant a benefit of employment when
      it placed him on LWOP and imposed a debt for overpayment of salary, and the
      appellant’s performance of service in a uniformed service was a substantial or
      motivating factor in the action, the agency proved by preponderant evidence that
      it would have placed the appellant on LWOP and imposed the overpayment
      anyway for a legitimate reason.        ID at 25, 29-33.      In this regard, the
      administrative law judge held that placing the appellant on LWOP and recouping
      a salary overpayment for at least part of the time he was on active military duty
      was consistent with 38 U.S.C. § 4316(b)(1)(A), which provides that “a person
      who is absent from a position of employment by reason of service in the
      uniformed services shall be deemed to be on furlough or leave of absence while
      performing such service.” ID at 31-32. Further, she found that the agency’s
      action was consistent with the implementing regulation at 5 C.F.R. § 353.106(a),
      which provides that such an employee “is to be carried on [LWOP] unless the
      employee elects to use other leave.”     ID at 32-32.    She held that, although
      5 U.S.C. § 5534 provides that a Reserve of the Armed Forces “may accept a
      civilian . . . position under the Government of the United States” and still
      “receive the pay of that . . . position in addition to pay and allowances as a
      Reserve,” the military pay the appellant received during active duty was not pay
      as a Reserve. ID at 32-33.
¶10         The administrative law judge further held that the appellant was not
      entitled to a waiver of the overpayment, nor was he entitled to be paid his salary
      by the agency based on equitable considerations. ID at 34-35. In so doing, the
      administrative law judge noted that there had been no finding by the Office of
      Personnel Management under 5 U.S.C. § 8470(b) that the appellant was “without
      fault and recovery would be against equity and good conscience.” ID at 35.
                                                                                        6

¶11         However, the administrative law judge found that the agency denied the
      appellant a benefit of employment based on his military service when it
      retroactively   designated   his   dual‑employment     period     as   LWOP    while
      (1) crediting him with only some of the military leave to which he was entitled
      and (2) changing his approved annual and sick leave to LWOP. ID at 39-44. She
      further found that the agency did not prove by preponderant evidence that it had
      legitimate reasons to calculate the debt without accounting for this leave. Id.
      She observed that the agency also admittedly failed to credit the appellant with
      the leave he should have accrued when he was in a military, sick, or annual leave
      status. ID at 45.
¶12         Finally, the administrative law judge found that the appellant did not
      establish that the agency denied him a benefit of employment in the form of
      terminal military leave. ID at 44. The administrative law judge further held that
      the appellant did not show that the agency denied him a benefit of employment on
      the basis of his military service when it properly recouped an amount
      representing the cost of funded benefits such as health and pension plans and
      subtracted funds from his TSP account that had been taken out of the appellant’s
      salary before his retroactive placement on LWOP.                ID at 45-46.    The
      administrative law judge also found that it was not appropriate to award the
      appellant attorney fees, expert witness fees, or other litigation expenses because
      such fees and expenses are to be awarded in an addendum proceeding after the
      Board issues a final decision in the case. ID at 47.
¶13         Thus, the administrative law judge ordered the agency to modify or replace
      the personnel actions placing the appellant on LWOP with personnel actions
      reflecting the days and hours in which the appellant was on military leave, annual
      leave, or sick leave. ID at 48. The administrative law judge ordered the agency
      to recalculate the debt for salary overpayment to credit the appellant with all such
      hours of leave and all monetary benefits that would accrue from being in a pay
      status during such periods of leave, including the hours of annual and sick leave
                                                                                        7

      that accrued during the time he was, or should have been, in a paid leave status.
      Id.

                                            ANALYSIS
      The appellant’s petition for review
¶14         On review, the appellant asserts that the administrative law judge’s finding
      that the agency violated USERRA in this case justifies an exercise by the Board
      of its discretion to reopen Jennings I to grant the appellant a hearing on his
      USERRA affirmative defense to the charges underlying his removal. Petition for
      Review (PFR) File, Tab 1 at 5. The appellant contends that an inference should
      be drawn that the agency violated USERRA in connection with the charges
      underlying his removal based on the finding that the agency violated USERRA
      when it retroactively placed him on LWOP. Id. at 6. The appellant claims that
      the administrative law judge’s finding of a USERRA violation “substantially
      bolsters his credibility and non-frivolous claim that the Agency also violated
      USERRA in connection with the charges in Jennings I.” Id. at 10-11.
¶15         In addition, the appellant asserts that the administrative law judge in
      Jennings I wrongfully denied him the opportunity to assert his USERRA
      affirmative defense, that the agency improperly did not produce evidence relating
      to his placement on LWOP until he filed this USERRA appeal, and that such
      evidence is new and material and warrants reopening Jennings I. Id. at 7-8. In
      this regard, the appellant contends that the Board should reopen Jennings I to
      prevent a manifest injustice involving an error that implicates his basic
      procedural rights. Id. at 11. In particular, he contends that the administrative law
      judge in Jennings I did not acknowledge his USERRA affirmative defense, docket
      it as a separate cause of action, or provide explicit information on his burden to
      prove jurisdiction. Id. at 11-13.
¶16         The appellant further asserts that the Board should reopen Jennings I based
      on a denial of a property interest in his employment without due process of law.
                                                                                        8

      Id. at 14.     Regarding this allegation, the appellant contends that he never
      received, in either Jennings I or the instant USERRA appeal, a hearing
      concerning his USERRA affirmative defense as it related to his removal. Id.
¶17            In deciding whether to reopen a closed appeal, the Board will balance the
      desirability of finality against the public interest in reaching the correct result.
      Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 37 (2008), aff’d per
      curiam, 357 F. App’x 293 (Fed. Cir. 2009). Thus, the Board will exercise its
      discretion to reopen an appeal only in unusual or extraordinary circumstances,
      such as an intervening event that directly bears on the result or the discovery of
      misrepresentation or fraud after the issuance of the initial decision, and generally
      within a short period of time after the decision becomes final.       Id.; 5 C.F.R.
      § 1201.118. Such a short period of time is usually measured in weeks, not years.
      Murray v. National Aeronautics & Space Administration, 112 M.S.P.R. 680, ¶ 5
      n.1 (2009), aff’d per curiam, 387 F. App’x 955 (Fed. Cir. 2010).
¶18            Here, the Board’s decision in Jennings I became final on January 6, 2009.
      Social       Security    Administration     v.    Jennings,      MSPB       Docket
      No. CB-7521-07-0026-T-1, Final Order at 2 (Jan. 6, 2009); see 5 C.F.R.
      § 1201.113(b) (providing that an initial decision becomes final when the Board
      issues its last decision denying a petition for review). As set forth above, the
      appellant filed this USERRA appeal on February 3, 2011.          We find that the
      appellant’s request to reopen Jennings I is far beyond the short period of time
      during which the Board will consider reopening. In addition, the administrative
      law judge’s decision in this case does not constitute unusual or extraordinary
      circumstances that warrant reopening Jennings I. There has been no discovery of
      misrepresentation or fraud after the issuance of that initial decision. Moreover,
      the administrative law judge’s findings regarding the appellant’s retroactive
      placement on LWOP and the calculation of the appellant’s debt to the agency, as
      well as any evidence supporting those determinations, have no bearing on the
                                                                                           9

      decision in Jennings I that the agency proved its charges by preponderant
      evidence and that there was good cause to remove the appellant from his position.
¶19         The Board also has held that reopening may be appropriate when there is a
      clear and material legal error generally confined to a conflict between the holding
      of the decision and a controlling precedent or statute, either because of an
      oversight or a change in the controlling law between the date of the original
      decision and any reopening request.          Hayes v. Department of the Army,
      106 M.S.P.R. 132, ¶ 6 (2007); Special Counsel v. Sullivan, 7 M.S.P.R. 357,
      360 (1981). As set forth below, we find that the appellant has not shown a clear
      and material legal error in Jennings I that warrants reopening.
¶20         In his September 18, 2007 answer to the agency’s complaint in Jennings I,
      the appellant asserted that “[a]gency personnel actions seeking removal of the
      Respondent from his position as an Agency ALJ constitutes a prohibited
      personnel practice and discrimination under 38 U.S.C. §§ 4311(a) and 4311(c)(1)
      and generally under” USERRA. 0026 IAF, Tab 4 at 9. The administrative law
      judge then issued an October 5, 2007 scheduling order notifying the appellant
      that, by October 31, 2007, he needed to file an answer to the agency’s statement
      of claims, which was in addition to his answer filed in response to the agency’s
      complaint and which conformed to the requirements of Rule 8(b), (c), (d), and (e)
      of the Federal Rules of Civil Procedure. 1          0026 IAF, Tab 6 at 1.          The
      administrative    law   judge    also   required    the   parties   to   submit,    by
      November 28, 2007, a “Statement of Authorities Relied Upon.” Id. at 2. The
      scheduling order further provided that the administrative law judge would
      conduct a telephonic prehearing conference on December 12, 2007, that witness
      lists and hearing exhibits “will be reviewed in detail and the facts and issues that


      1
       Under Federal Rule of Civil Procedure 8(c), “In responding to a pleading, a party must
      affirmatively state any . . . affirmative defense.”
                                                                                      10

      will be addressed at the hearing will be discussed,” and that the parties “must be
      prepared, as appropriate, to discuss settlement, to define issues, and to reach
      stipulations of uncontested facts.” Id. The administrative law judge noted that
      the parties’ evidence at hearing would be limited by their prehearing submissions,
      absent good cause shown. Id. at 3.
¶21         In his October 30, 2007 “Answer to Statement of Claims,” filed in response
      to the administrative law judge’s scheduling order in Jennings I, the appellant set
      forth a general denial of wrongdoing but did not allege USERRA as an
      affirmative defense.   0026 IAF, Tab 10 at 1-8.     There is also no mention of
      USERRA in the appellant’s November 29, 2007 “Statement of Authorities Relied
      Upon.”   0026 IAF, Tab 19.      In his February 13, 2008 “Answer to Amended
      Statement of Charges/Specifications and Affirmative Defenses,” however, under
      which the administrative law judge permitted the appellant to file an answer to
      the agency’s amended complaint that added a charge that was subsequently
      dismissed from the case, 0026 IAF, Tab 25 at 11‑12, Tab 27; Hearing Transcript
      (HT), Volume (Vol.) I at 10-21, the appellant summarily stated that the agency
      violated USERRA, 0026 IAF, Tab 41 at 9. During the hearing in Jennings I, the
      appellant did not indicate that he was raising an affirmative defense under
      USERRA or ask questions of witnesses addressing such an affirmative defense,
      see, e.g., 0026 IAF, HT, Vol. I at 29-43 (containing the appellant’s opening
      statement), nor did he mention USERRA in his post-hearing brief, 0026 IAF, Tab
      68. On petition for review of the initial decision in Jennings I, the appellant’s
      USERRA argument pertained to the agency’s attempt to recoup the debt created
      by a salary overpayment, not the merits of the agency’s request that the Board
      find good cause to remove him for misconduct. Social Security Administration v.
      Jennings, MSPB Docket No. CB-7521-07-0026-T-1, Petition for Review (0026
      PFR) File, Tab 3 at 2-4, 7, 18-20, 52-109.
¶22         The general rule regarding Federal Rule of Civil Procedure 8(c) is that
      affirmative defenses are waived if not pleaded in the answer.        Hauschild v.
                                                                                      11

      United States, 53 Fed. Cl. 134, 139 (2002).         Under the above circumstances,
      wherein the appellant did not raise a USERRA affirmative defense in his answer
      to the agency’s statement of claims or in his table of authorities, raised a bare
      allegation of a USERRA affirmative defense in a pleading filed after the
      prehearing conference held to define the issues, and did not raise a claim under
      USERRA in connection with his removal during the hearing, in his post-hearing
      brief, or in his petition for review, we find that the appellant has identified no
      clear and material legal error by the administrative law judge warranting
      reopening of the Board’s final decision in Jennings I.
¶23         Further, as set forth above, the reopening request associated with this
      appeal was submitted years after the Board’s decision in Jennings I became final,
      and the appellant has not submitted new evidence of sufficient weight to warrant
      a different outcome. See Murray, 112 M.S.P.R. 680, ¶ 5 n.1. Moreover, based on
      the administrative law judge’s findings in Jennings I, which became final, as well
      as the affirmance of that decision by the Federal Circuit, the Board would not
      likely reach a different result even if it considered the USERRA claim in
      connection with the appellant’s removal. See Sheehan v. Department of the Navy,
      240 F.3d 1009, 1013-15 (Fed. Cir. 2001) (requiring an individual to initially show
      by preponderant evidence that the individual’s military status was at least a
      motivating or substantial factor in the agency action, upon which the agency must
      prove, also by preponderant evidence, that the action would have been taken for a
      valid reason despite the protected status); Strausbaugh v. Government Printing
      Office, 117    M.S.P.R.    566,   ¶ 12   (finding   that   USERRA   only   prevents
      discrimination on account of service in the military; it does not prohibit an
      agency from considering events that occur during an employee’s military
      service), aff’d per curiam, 493 F. App’x 61 (Fed. Cir. 2012). Under all of the
      above circumstances, we find that the desirability of finality outweighs any
      public interest in reaching a potentially different result.
                                                                                       12

¶24         The appellant asserts, moreover, that the administrative law judge should
      not have applied res judicata in this case because the agency’s removal action
      pursuant to 5 U.S.C. § 7521 and the appellant’s USERRA appeal are separate
      causes of action, and a USERRA claim raised as an affirmative defense in an
      adverse action appeal is considered a “separate claim.” PFR File, Tab 1 at 15-17.
      The appellant also contends that res judicata does not apply because there was
      never a final determination on the merits concerning his USERRA affirmative
      defense in Jennings I, and he did not have a full and fair opportunity to litigate
      that affirmative defense in Jennings I. Id. at 17-18.
¶25         Under the doctrine of res judicata, a valid, final judgment on the merits of
      an action bars a second action involving the same parties or their privies based on
      the same cause of action.     Peartree v. U.S. Postal Service, 66 M.S.P.R. 332,
      337 (1995).   Thus, res judicata precludes parties from relitigating issues that
      were, or could have been, raised in the prior action, and is applicable if: (1) the
      prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
      judgment was a final judgment on the merits; and (3) the same cause of action
      and the same parties or their privies were involved in both cases. Id. For res
      judicata purposes, a cause of action is the set of facts that gives an appellant the
      right to seek relief from an agency. Frias v. U.S. Postal Service, 63 M.S.P.R.
      276, 280, aff’d per curiam, 43 F.3d 1486 (Fed. Cir. 1994) (Table). We agree with
      the administrative law judge that res judicata applies here because a claim of a
      USERRA violation could have been properly raised in Jennings I in connection
      with the appellant’s removal, the judgment in that case was rendered by a forum
      with competent jurisdiction, the prior judgment was a judgment on the merits, and
      the same set of facts giving rise to the right to seek relief and the same parties
      were involved in both cases. In this regard, we agree with the administrative law
      judge that res judicata does not require that the prior decision expressly address a
      particular claim in its judgment on the merits, even if that claim had been
      properly raised. ID at 20-21; see Hornback v. United States, 85 F. App’x 758,
                                                                                       13

      762 (Fed. Cir. 2004) (per curiam), 2 overruled on other grounds as recognized by
      Young v. United States, 92 Fed. Cl. 425, 431-32 (2010), aff’d per curiam,
      417 F. App’x 943 (Fed. Cir. 2011).
¶26         In his response to the agency’s cross petition for review, the appellant
      asserts, as he did below, that the agency’s retroactive placement of him on
      enforced LWOP from January 2, 2003, to January 17, 2006, triggered a
      suspension and a reduction in pay under 5 U.S.C. § 7521.          PFR File, Tab 7
      at 14‑17, Tab 8 at 5 n.2. The appellant contends that the Board cannot give legal
      effect or deference to the DAB’s decision because the DAB had no jurisdiction
      over the appellant as an administrative law judge; rather, he asserts that original
      jurisdiction to determine a suspension and salary reduction involving an
      administrative law judge is vested in the Board under 5 U.S.C. § 7521. PFR File,
      Tab 8 at 7-8.     Thus, he claims that instead of referring an alleged salary
      overpayment to the DAB, the agency should have filed a complaint with the
      Board under 5 U.S.C. § 7521. PFR File, Tab 8 at 9. The appellant contends that
      the agency’s failure to file a complaint enabled it to take an action against him
      without proving good cause and effectively deprived him of his hearing right.
      PFR File, Tab 7 at 15.
¶27         Under 5 U.S.C. § 7521(a), “[a]n action may be taken against an
      administrative law judge . . . only for good cause established and determined by
      the [Board] on the record after an opportunity for a hearing.”         The actions
      covered by section 7521 include a removal, a suspension, a reduction in grade or
      pay, and a furlough of 30 days or less.        5 U.S.C. § 7521(b).    An agency’s
      retroactive placement of an employee on LWOP without the employee’s consent
      may constitute an appealable suspension, even though such action may not be

      2
        The Board may rely on unpublished decisions of the Federal Circuit if it finds the
      court’s reasoning persuasive, as we do here. See Mauldin v. U.S. Postal Service,
      115 M.S.P.R. 513, ¶ 12 (2011).
                                                                                      14

      “disciplinary” in the traditional sense of that word. See Martin v. U.S. Postal
      Service, 123 M.S.P.R. 189, ¶ 9 (2016) (finding that the nonconsensual placement
      of an employee in retroactive LWOP status was a suspension pursuant to similar
      provisions of chapter 75 providing tenured civil service employees with the right
      to appeal adverse actions); McHenry v. U.S. Postal Service, 121 M.S.P.R. 80,
      ¶¶ 5-8 (2014) (finding that the agency suspended a tenured civil service employee
      when it retroactively rescinded his sick leave, directed him not to return to work,
      and placed him in an LWOP status); Lowmack v. Department of the Navy,
      80 M.S.P.R. 491, ¶¶ 11-13 (1999) (finding that an appellant made a nonfrivolous
      allegation that she was involuntarily placed in a nonduty, nonpay status for
      “disciplinary” reasons within the broader sense of the word, even though the
      agency’s action was part of a larger evacuation of her work location undertaken
      for safety and security reasons). Further, an administrative law judge who alleges
      a constructive removal or other action by an agency in violation of 5 U.S.C.
      § 7521 may file a complaint with the Board.          5 C.F.R. § 1201.142.     Such
      complaints shall be adjudicated in the same manner as agency complaints seeking
      actions against administrative law judges. Id.
¶28         In light of the appellant’s allegations regarding 5 U.S.C. § 7521, we vacate
      the initial decision’s findings, except for the finding that res judicata precluded
      the arguments made by the appellant regarding his reemployment and
      reinstatement as an administrative law judge, which we affirm, see ID at 19-21,
      and remand this appeal to the administrative law judge for further adjudication.
      On remand, the administrative law judge must address two initial questions:
      (a) does this case involve an action under 5 U.S.C. § 7521; and (b) if so, is there
      good cause for such an action? In light of this disposition, we need not directly
      address whether the agency should have filed a complaint under 5 U.S.C. § 7521.
      In addition, we need not address at this time whether the agency violated
      USERRA when it retroactively placed the appellant on LWOP for the entire
      period in question and failed to credit him with sick and annual leave that he
                                                                                        15

      would have accrued during periods he was on paid leave. After addressing the
      two questions set forth above, the administrative law judge may readopt, if
      appropriate, the findings set forth in her February 5, 2016 initial decision
      addressing the appellant’s USERRA claims.

      The agency’s cross petition for review
¶29         The agency contends that, although the administrative law judge
      recalculated the amount of the appellant’s debt to the agency, the Board does not
      have jurisdiction to review the validity or the amount of this debt. PFR File,
      Tab 3 at 5, 12-15. The agency further asserts that, because an administrative law
      judge with the DAB already has determined the propriety and amount of the
      appellant’s debt to the agency, as well as the matter of whether he had elected to
      use leave under 5 C.F.R. § 353.106(a), the doctrine of collateral estoppel
      precludes those issues from being relitigated in this USERRA appeal. PFR File,
      Tab 3 at 15‑23. Finally, the agency contends that the administrative law judge
      erred when she found that the appellant satisfied his initial burden under
      USERRA of showing by preponderant evidence that his military status was a
      motivating or substantial factor in the agency’s handling of his military and
      accrued leave. Id. at 5-6, 23-30.
¶30         Given our determination to vacate many of the initial decision’s findings in
      this case, particularly those that are related to the arguments raised in the
      agency’s cross petition for review, we need not consider these remaining
      arguments at this time. Rather, the administrative law judge may consider these
      arguments, in the first instance, in her adjudication of this appeal on remand.
                                                                                     16

                                          ORDER
¶31         For the reasons discussed above, we vacate the initial decision except as to
      the findings regarding res judicata and remand this case to the administrative law
      judge for further adjudication in accordance with this Opinion and Order.




      FOR THE BOARD:


      ______________________________
      Jennifer Everling
      Acting Clerk of the Board
      Washington, D.C.
