U.S. Merit Systems Protection Board 
Case Report for September 16, 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.


Appellant:  Kelly Stephen Jennings
Agency:  Social Security Administration
Decision Number:  2016 MSPB 31
Docket Number:  AT-4324-11-0442-I-1
Issuance Date:  September 13, 2016
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights - USERRA
Reopening and Reconsideration
Res Judicata (Claim Preclusion)
Jurisdiction - Suspensions

    The appellant petitioned for review, and the agency cross petitioned for review, of an initial decision that ordered corrective action in the USERRA appeal.  In an earlier appeal (Jennings I), the Board affirmed the appellant's removal from his position as an administrative law judge with the Social Security Administration on misconduct charges.  The agency alleged in that action that 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.  While Jennings I was pending, the agency determined 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.  Following a hearing before the Departmental Appeals Board, which is an entity that provides independent, impartial review of certain disputed issues within the Department of Health and Human Services, an ALJ ruled that the appellant owed the agency a salary overpayment in the amount of $427,784.  In the instant Board appeal, the appellant alleged that:  (1) the agency denied him certain rights and benefits under USERRA; (2) the agency's action retroactively placing him on LWOP was a reduction in pay and suspension that the agency improperly implemented without first filing a complaint with the Board under 5 U.S.C.  7521 and proving that there was good cause for such actions; and (3) because the administrative law judge in Jennings I did not notify him of his rights under USERRA and did not address his USERRA affirmative defense, the Board should reopen its decision in Jennings I to resolve that issue.  

     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, finding that this claim was barred by the doctrine of res judicata.  The administrative law judge rejected the appellant's contention that the agency improperly reduced his pay and suspended him without filing a complaint under 5 U.S.C.  7521, finding 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 reasons, in a nonduty status, and did not constructively suspend him because his absence was voluntary.  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 uniformed service was a substantial or motivating factor in those actions, the agency proved by preponderant evidence that it would have placed the appellant on LWOP and imposed the overpayment for a legitimate reason.  The administrative law judge further found, however, 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 crediting him with only some of the military leave to which he was entitled, and changing his approved annual and sick leave to LWOP.  The administrative law judge ordered the agency to correct this violation by modifying or replacing 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, and ordered the agency to recalculate the appellant's debt for salary overpayment.

Holdings:  The Board affirmed the initial decision's finding that res judicata precludes consideration of the appellant's claim that he should be reemployed and reinstated as an administrative law judge, vacated the remainder of the initial decision, and remanded the case to the administrative law judge for further adjudication:

1. The Board denied the appellant's request to reopen and reconsider Jennings I to grant him a hearing on his USERRA affirmative defense to the charges underlying his removal.  

a. 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.  The Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances, and generally within a short period of time, usually measured in weeks, after the decision becomes final.  

b. Here, the Board's decision in Jennings I became final on January 6, 2009.  The appellant's request to reopen is far beyond the short period of time during which the Board will consider reopening.  

c. The appellant has not shown a clear and material legal error in Jennings I that warrants reopening.  The appellant did not raise a USERRA affirmative defense in his answer to the agency's statement of claims, 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 USERRA claim in connection with his removal during the hearing, in his post-hearing brief, or in his petition for review.

2. The administrative law judge correctly applied the doctrine of res judicata to prevent litigation of a USERRA claim regarding the appellant's removal.  

a. 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.  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.  

b. The administrative law judge correctly applied res judicata 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 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.  

3. The appellant raised a nonfrivolous allegation that retroactively placing him on enforced LWOP constituted actions subject to
5 U.S.C.  7521.  

a. Under 5 U.S.C.  7521, "[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."  Actions covered by section 7521 include a removal, a suspension, a reduction in grade or pay, and a furlough of 30 days or less.

b. Retroactively placing an employee on LWOP without the employee's consent may constitute an appealable suspension, even though such action may not be "disciplinary" in the traditional sense of that word, and an administrative law judge who alleges a constructive removal or other action by an agency in violation of section 7521 may file a complaint with the Board.  

c. The appellant's allegations in this regard must be remanded to the administrative law judge for further adjudication.  On remand, the judge must address two initial questions:(1) does this case involve an action under section 7521; and (2) if so, is there good cause for such an action?

4. At this time, the Board need not address the agency's claim on cross petition for review that the Board lacks jurisdiction to review the validity or amount of the appellant's debt to the agency, on the ground that this was conclusively adjudicated by the Departmental Appeals Board, and relitigation of that finding is precluded under the doctrine of collateral estoppel.  Given that the Board has vacated many of the initial decision's findings in this case, the administrative law judge may consider the agency's arguments in this regard in her adjudication of the appeal on remand.  


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

Nelson v. Department of the Army No. 2016-1834 (September 7, 2016) (MSPB Docket No. DA-1221-15-0197-W-1) (affirming the Board's decision, which denied Nelson's request for corrective action in this IRA appeal)

Barton v. Merit Systems Protection Board, No. 2016-1669 (September 8, 2016) (MSPB Docket No. NY-0353-13-0205-I-4) (affirming the Board's decision, which dismissed Barton's appeal for lack of jurisdiction)

Christian v. Merit Systems Protection Board, No. 2016-1912 (September 9, 2016) (MSPB Docket No. PH-0752-15-0186-I-1) (affirming the Board's decision, which dismissed Christian's appeal of an indefinite suspension as untimely)

Wonders v. Department of the Army, No. 2016-1847 (September 9, 2016) (MSPB Docket No. AT-0752-13-0055-B-1) (affirming the Board's decision, which affirmed a removal action following the employee's loss of a security clearance, finding that there were procedural violations in the revocation process, but that they were harmless)

Owen v. Office of Personnel Management, No. 2016-1850 (September 12, 2016) (MSPB Docket No. SF-0831-15-0543-I-1) (affirming the Board's decision, which affirmed OPM's determination that Owen was not entitled to survivor benefits based on the federal service of her late husband)

Benton v. Merit Systems Protection Board, No. 2015-3004 (September 12, 2016) (MSPB Docket No. DC-1221-13-0508-W-1) (dismissing this court appeal for lack of jurisdiction on the ground that the Board's decision was no longer final, as the Board conceded error in the adjudication of the case, but asked the court to affirm its dismissal of this IRA appeal on different grounds)

Taylor v. Office of Personnel Management, No. 2016-1822 (September 14, 2016) (MSPB Docket No. SF-0831-15-0521-I-1) (affirming the Board's decision, which denied Taylor's claim for survivor benefits based on her deceased husband's federal service because the husband failed to timely elect his wife as his beneficiary)  

Cofield v. Department of Defense, No. 2016-1546 (September 14, 2016) (MSPB Docket No. SF-0752-14-0114-B-1) (affirming the Board's decision, which denied Cofield's petition for enforcement of a settlement agreement)

Kent v. Department of the Air Force, No. 2016-1594 (September 16, 2016) (MSPB Docket No. AT-0752-10-0652-C-2) (affirming the Board's decision, which denied Kent's petition for enforcement of a settlement agreementJ)

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