U.S. Merit Systems Protection Board 
Case Report for August 26, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Petitioner:  John Paul Jones, III
Respondent:  Department of Health and Human Services
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2016-1792
Issuance Date:  August 2, 2016

Veterans' Rights - USERRA
Jurisdiction - Final Decision Requirement

    The court reviewed a consolidated decision by an administrative judge adjudicating 16 MSPB appeals in which Jones alleged that the agency failed to select him for vacancies because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act.  The Board denied corrective action, finding that the appellant failed to establish that his military service was a substantial or motivating factor in his non-selections.  On appeal to the court, the Government alleged that the court lacked jurisdiction because Jones filed his appeal before there was a final Board decision.  It argued in the alternative that the administrative judge's decision was correct and should be affirmed.

Holdings: The court concluded that it had jurisdiction over the case and affirmed the Board's decision on the merits:

1. The court possessed subject matter jurisdiction over the appeal.

a. Under 28 U.S.C. 1295(a)(9), the court possesses jurisdiction over an appeal from a "final decision" of the MSPB.  To obtain review in the Federal Circuit, a petition for review must be filed within sixty days after the MSPB issues notice of its final decision.  5 U.S.C.  7703(b)(1)(A).  

b. Here, Jones filed his petition for review with the court 25 days before the administrative judge's initial decision became the Board's final decision.

c. The Federal Circuit has ruled that the time for filing an appeal is "statutory, mandatory, [and] jurisdictional."  Whether the time limit is jurisdictional may be in doubt in light of recent Supreme Court decisions, but the court determined that it need not resolve that question in this case.

d. The court had previously held in a non-precedential decision (Schmitt) that, when a petitioner files a petition for review with the court before an administrative judge's initial decision becomes final, the petitioner's appeal ripens once that initial decision becomes the final decision of the MSPB.  The court determined that Schmitt is consistent with its precedent in analogous circumstances, and adopted it in this precedential decision.  

2. Jones failed to establish that his military service was a substantial or motivating factor in his non-selections.

a. USERRA prohibits discrimination in employment on the basis of military service.  An employee making a USERRA claim of discrimination bears the initial burden of showing that the employee's military service was a substantial or motivating factor in the adverse employment action.  Military service is a substantial or motivating factor regional office an adverse employment action if the employer relied on, took into account, considered, or conditioned its decision on the employee's military-related absence or obligation.

b. An employee may prove discriminatory motivation by either direct or circumstantial evidence.  Absent direct evidence, the MSPB may infer discriminatory motivation from, among other things:  (1) proximity in time between the employee’s military activity and the adverse employment action; (2) inconsistencies between the proffered reason and other actions of the employer; (3) an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity; and (4) disparate treatment of certain employees compared to other employees with similar work records or offenses.  

c. The court agreed with the administrative judge's determination that none of these four factors demonstrated discrimination.  

The U.S. Court of Appeals for the Federal Circuit issued a non-precedential decisions in the following case:

Estes v. Merit Systems Protection Board, No. 2016-1801 (August 25, 2016) (MSPB Docket No. PH-4324-15-0268-I-1) (affirming the Board's decision, which dismissed Estes's appeal for lack of jurisdiction, finding that, under USERRA, the Department of the Army was not a co-employer with the contractor for which Estes worked)

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