U.S. Merit Systems Protection Board
Case Report for May 9, 2014

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BOARD DECISIONS

Appellant:  James David Johnson, Sr.  
Agency:  United States Postal Service
Decision Number:  2014 MSPB 32
Docket Number:  AT-4324-12-0199-I-1
Issuance Date:  May 6, 2014

Appeal Type:  USERRA Appeal 
Action Type:  Timeliness/Laches

Doctrine of Laches Applied to Untimely Filed USERRA Appeal
Failure to State Claim Upon Which Relief Can Be Granted
 

    The appellant applied for a position as an EAS-24 Postmaster in 2002 and was interviewed for the position in 2003 via telephone because he was on active duty. The agency did not select the appellant for the EAS Postmaster position.   When this position again became available in 2003 after the selectee left the position, the appellant requested that he be laterally reassigned to the position.   The agency acknowledged the appellant's request, but his reassignment request was denied. After completing his active duty obligations later in 2003, the appellant returned to his former position and retired in 2004.    Eight years later, the appellant filed a USERRA appeal alleging that his non-selection for the EAS Postmaster position was predicated on discrimination based on his military status during the period of his active duty.   The appellant explained that his 8-year delay in filing the USERRA appeal occurred because he first learned of his right to file a USERRA appeal after reading about another USERRA case involving a Postal Service employee.   The AJ dismissed the appeal based on the doctrine of laches after concluding that the agency established that the appellant's 8-year delay was unreasonable and had prejudiced the agency's ability to defend itself.  

Holding:   The Board denied the PFR, affirming that portion of the Initial Decision (ID) dismissing the appellant's claim that the agency discriminated against him when he was not selected for promotion to the EAS-24 Postmaster position, vacated the ID pertaining to the AJ's finding that the denial of the appellant's request for a lateral reassignment was absorbed by his claim regarding the nonselection for promotion, and dismissed the lateral reassignment claim for failure to state a claim upon which relief can be granted.  

1.  The equitable defense of laches, as applied to a defense under a USERRA, is established upon a showing that the claim is barred because the delay in filing the action is unreasonable and the party against whom the action is taken is prejudiced. Garcia v. Department of State, 101 MSPR 172 (2006).  

2.  The appellant's 8-year delay in filing the USERRA appeal was unreasonable given that the agency had no duty to inform the appellant of his rights under USERRA in 2003, and the appellant's assertion that he only belatedly learned of his rights through reading a 2011 article was unpersuasive, particularly given that the appellant was a longtime  Postmaster at the agency.  

3.   The agency established that it would be prejudiced by the 8-year delay, because the selection file had been destroyed and many of the prospective witnesses were retired and potentially unavailable and would not be able to testify based on memory alone.

4.   The AJ erred in applying the doctrine of laches to the reassignment aspect of this USERRA claim because the agency did not make any assertions or submit evidence that it was prejudiced.   Instead, the Board held that the assertion of the denial of reassignment claim was tantamount to a dismissal for failure to state a claim upon which relief can be granted.   Here, the Board found that the correct analysis and ruling in this instance is to dismiss the appeal for failure to state a claim upon which relief can be granted because the appellant is now retired and did not identify any effective relief that the Board could award.  

  
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Petitioners:  Louis Harris
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2014-3156
Issuance Date:  May 9, 2014

Timeliness in Filing Appeal from OPM Final Reconsideration Decision
 

    The Office of Personnel Management (OPM) denied the appellant's application for a retirement annuity because he requested and was refunded his retirement contributions after each of three periods of his federal employment.   The appellant filed a petition for appeal 260 days after expiration of the 30 day time limit for filing.   The AJ dismissed the appeal as untimely based on findings that the appeal was untimely and that the appellant provided an insufficient explanation that good cause existed for the delay.

Holdings: The court affirmed the Board's timeliness dismissal.

1.  In affirming the Board's timeliness dismissal, the Court noted that the appellant had not met his burden of establishing a good reason for this filing delay because there was an insufficient explanation as to how inadequate legal assistance may have caused his delay in filing.  The appellant also failed to point out how he acted diligently during the delay.


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