                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LILLIE M. MIDDLEBROOKS,                         DOCKET NUMBER
                    Appellant,                       PH-4324-14-0554-I-1

                  v.

     SOCIAL SECURITY                                 DATE: September 22, 2014
       ADMINISTRATION,
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Lillie M. Middlebrooks, Fairfax, Virginia, pro se.

           Stephen Ball and Timothy Patrick Reiley, Philadelphia, Pennsylvania, for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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. For the reasons discussed below, we



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        This appeal originates from a February 2014 Final Order denying the
     appellant’s Veterans Employment Opportunities Act of 1998 nonselection claim.
     MSPB Docket No. PH-3330-13-0012-I-1, Final Order (Feb. 28, 2014).            In the
     decision, the Board forwarded a separate claim for docketing under the
     Uniformed Services Employment and Reemployment Rights Act of 1994
     (codified at 38 U.S.C. §§ 4301-4333) (USERRA). Final Order at 3. In March
     2014, the administrative judge issued an acknowledgment order, ordering the
     appellant to file a statement within 10 days indicating whether she wished to file
     her USERRA appeal directly with the Board or whether she wished Board
     proceedings to be delayed in order for her to file a complaint with the Department
     of Labor (DOL). Initial Appeal File (IAF), Tab 2 at 2. The appellant did not
     respond.   In July 2014, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 3, Initial Decision (ID).
     The appellant has filed a timely petition for review alleging, inter alia, that she
     was not hired due to her status as a disabled veteran, and that she is entitled to a
     hearing. Petition for Review (PFR) File, Tab 1 at 4. The agency has responded
     in opposition to the petition for review. PFR File, Tab 3.
¶3        It is well settled that an appellant must receive explicit information on what
     is required to establish an appealable jurisdictional issue. See, e.g., Burgess v.
     Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). The
     March 2014 acknowledgment order outlined the requirements for establishing
     Board jurisdiction over a USERRA claim. IAF, Tab 3. On review, the appellant
     claims that she did not receive the order.         PFR File, Tab 1 at 6.        The
     acknowledgment order was served electronically upon the appellant. IAF, Tab 2.
     However, the appellant had not registered to e-file in the current appeal at the
                                                                                      3

     time the order was issued and had therefore not consented to electronic service.
     See 5 C.F.R. § 1201.14(e)(5) (registration as an e-filer applies only to a single
     appeal or proceeding as well as certain related proceedings not applicable here).
     Thus, the order is not deemed to have been received based upon status as an
     e-filer.    See Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5
     (2009) (documents are deemed received by e-filers on the date of electronic
     submission). Additionally, unlike appellants who had been registered as e-filers,
     the appellant was not responsible for monitoring the e-Appeal system at the time
     the order was issued. See 5 C.F.R. § 1201.14(j)(3). Accordingly, we accept the
     appellant’s assertion that she did not receive the order.
¶4          An administrative judge’s failure to provide an appellant with proper
     Burgess notice can be cured if the initial decision itself puts the appellant on
     notice of the requirements to establish jurisdiction. Mapstone v. Department of
     the Interior, 106 M.S.P.R. 691, ¶ 9 (2007).        The Board will then determine
     whether it has jurisdiction based upon the appellant’s allegations in the petition
     for review. Id. In this case, the initial decision outlined the requirements for
     establishing Board jurisdiction in a USERRA discrimination appeal. ID at 2-3.
     We therefore consider the petition for review to determine whether jurisdiction
     has been established.
¶5          To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
     allege that: (1) she performed duty or has an obligation to perform duty in a
     uniformed service of the United States; (2) the agency denied her 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.      Hillman     v.   Tennessee   Valley
     Authority, 95 M.S.P.R. 162, ¶ 5 (2003).      The Board will broadly and liberally
     construe a claim under USERRA to determine whether the appellant has made
     nonfrivolous allegations of jurisdiction. Id. The appellant argues that the agency
     did not refer her application to the selecting official because she is a disabled
                                                                                      4

     veteran and that she was discriminated against based on her affiliation with the
     military. PFR File, Tab 1 at 4, 8. We find that these allegations are sufficient to
     constitute a nonfrivolous claim under 38 U.S.C. § 4311(a).          See Searcy v.
     Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding that despite the
     fact that the appellant’s allegations below were vague and lacking specificity, he
     established jurisdiction over his USERRA claim by alleging that he performed
     duty in a uniformed service of the United States, the agency was aware of his
     prior uniformed service, and the agency denied him employment in a position
     because of his prior uniformed service).
¶6        The appellant has indicated that she wants a hearing and has not stated that
     she has a pending DOL complaint. PFR File, Tab 1. Therefore, the appellant is
     entitled to a remand for further development of the record, her requested hearing,
     and adjudication on the merits.         See Downs v. Department of Veterans
     Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008) (once an appellant has established
     Board jurisdiction over her USERRA claim, she has an unconditional right to a
     hearing on the merits of the claim).

                                            ORDER
          For the reasons discussed above, we REMAND this case to the regional
     office for further adjudication in accordance with this Remand Order.




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