                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ELIJAH JIMMY WILLIAMS, JR.,                     DOCKET NUMBER
                   Appellant,                        AT-4324-15-0702-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 1, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Elijah Jimmy Williams, Jr., Lithonia, Georgia, pro se.

           Jeremy Vance Tramel, Decatur, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal filed under the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (USERRA) for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 administrative 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant is employed as a Restoration Technician, GS-0644-09, with
     the agency in Decatur, Georgia. Initial Appeal File (IAF), Tab 1 at 1, Tab 4
     at 16. His initial pleading shows that he filed a USERRA complaint with the
     Department of Labor (DOL) and that DOL investigated and closed out the
     complaint. IAF, Tab 1 at 6-7. The appellant asserted that the full performance
     level for his position is GS-11, and the agency’s failure to noncompetitively
     promote him to that grade violated his rights under USERRA.          Id. at 3.   In
     response to the agency’s motion to dismiss, IAF, Tab 4, the administrative judge
     issued an order informing the appellant of his jurisdictional burden of proof, IAF,
     Tab 5.   When the appellant did not timely respond, the administrative judge
     issued the initial decision. IAF, Tab 6, Initial Decision (ID). The administrative
     judge found that the appellant exhausted his administrative remedies with DOL,
     but failed to nonfrivolously allege that the agency violated his rights pursuant
                                                                                            3

     to 38 U.S.C. § 4311(a) or (b). 2 ID at 2-4. The administrative judge dismissed the
     appeal for lack of jurisdiction. ID at 4-5.
¶3         The appellant filed a petition for review. 3 Petition for Review (PFR) File,
     Tab 1. On review, the appellant challenges the agency’s representation that he
     had reached the full performance level for his particular position, suggesting that
     the position had promotion potential to GS-11 at an earlier time, but had been
     downgraded. PFR File, Tab 3 at 7. He asserts that the agency did not promote
     him to GS-11 in retaliation for his union activity. Id. at 7. He also asserts that
     the agency was obligated to appoint him to a position at the GS-11 level pursuant
     to 38 U.S.C. § 4214(b)(1)(A). PFR File, Tab 3 at 6; see PFR File, Tab 1 at 5-6.
¶4         Based on our review, we find that the appellant has not alleged any reason
     for the Board to grant his petition for review. See 5 C.F.R. § 1201.115. He has
     not shown that any of the administrative judge’s factual determinations are
     incorrect and of sufficient weight to warrant an outcome different from that of the
     initial decision. 5 C.F.R. § 1201.115(a). He incorrectly asserts that he is due a
     noncompetitive career ladder promotion to GS-11 based on the position
     description for Position Number 4991.         PFR File, Tab 3 at 9.       However, the
     appellant does not encumber Position Number 4991.              Instead, he encumbers
     Position Number 5472, the full performance level for which is and has been at the

     2
       The administrative judge explained that the facts of the case do not implicate any
     violation of reemployment rights under USERRA. ID at 2 n.1. Although the appellant
     argues that his employment or reemployment rights were violated, Petition for Review
     (PFR) File, Tab 1 at 4-5, we find that the administrative judge properly analyzed his
     complaint under the USERRA provisions pertaining to discrimination.
     3
       The administrative judge issued the jurisdictional order on August 18, 2015, with a
     10-day period in which to respond. IAF, Tab 5 at 7. On August 31, 2015, the appellant
     filed with the Clerk of the Board (Clerk) a document entitled “Supplement to PFR” via
     the e-Appeal system under MSPB Docket No. AT-3443-15-0677-I-1. PFR File, Tab 1
     at 1. The text of the pleading, however, referenced the docket number for the instant
     appeal and states that the pleading is in response to the agency’s motion to dismiss. Id.
     at 4. The Clerk treated the appellant’s filing as a premature petition for review and
     granted sua sponte an extension of time in which he could file a petition in response to
     the September 1, 2015 initial decision. PFR File, Tab 2.
                                                                                        4

     GS-09 level. PFR File, Tab 3 at 10; IAF, Tab 4 at 16, 34; see id. at 17, 22, 27,
     30.
¶5         The appellant likewise has not shown that the initial decision was based
     upon an erroneous interpretation of statute or regulation or the erroneous
     application of the law to the facts of the case. 5 C.F.R. § 1201.115(b); see ID
     at 4. Specifically, he failed to allege facts, which, if proven, could establish that
     his nonpromotion to GS-11 was based upon his former military service, or upon
     his activities to enforce protections afforded to any person under chapter 43 of
     title 38 of the U.S. Code. See 38 U.S.C. § 4311(a), (b); Tindall v. Department of
     the Army, 84 M.S.P.R. 230, ¶ 8 (1999). Indeed, he argues on review that the
     agency refused to promote him in retaliation for his labor-related activities. PFR
     File, Tab 3 at 7-8. Although the appellant argues that 38 U.S.C. § 4214(b)(1)(A)
     entitles him to employment in a GS-11 position, 4 id. at 6, we cannot infer Board
     jurisdiction on that basis, see Antol v. Perry, 82 F.3d 1291, 1296-98 (3d Cir.
     1996) (declining to infer a private right of action for an agency’s failure to
     comply with 38 U.S.C. § 4214(c)).
¶6         The appellant also has not alleged that the administrative judge abused his
     discretion.   5 C.F.R. § 1201.115(c).    He likewise has not submitted any new
     evidence or argument that was unavailable despite his due diligence when the
     record closed below. 5 C.F.R. § 1201.115(d). The appellant appended several
     items to his petition for review, including documents pertaining to his position
     description. PFR File, Tab 3 at 9-13. These items are discussed above.            He
     additionally included a copy of 38 U.S.C. § 4214, PFR File, Tab 3 at 14-15; a
     2006 complaint of employment discrimination, id. at 16-21; a series of email
     messages from June 2015 regarding his leave requests and a pending disciplinary
     investigation, id. at 22-27; and a copy of his collective bargaining agreement, id.

     4
       Qualified veterans are eligible for veterans recruitment appointments and for
     subsequent career-conditional appointments up to and including the level of GS-11 or
     equivalent. See 38 U.S.C. § 4214(b)(1)(A).
                                                                                   5

at 28-355. The appellant has not asserted that these items were unavailable to him
before the record closed. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980) (holding that the Board will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). Moreover, with
the exception of the statute, these documents do not address the dispositive issues
before   the   Board     in    a   USERRA     appeal.     See   Russo   v.   Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, we find the initial decision to be correctly decided and
affirm the decision.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. 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
                                                                                    6

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.




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