A Report to the President and the Congress of the United States

by the U.S. Merit Systems Protection Board

november 2014

Veterans’ Employment

Redress Laws

in the Federal Civil Service
THE CHAIRMAN

U.S. MERIT SYSTEMS PROTECTION BOARD 

1615 M Street, NW

Washington, DC 20419-0001 

The President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this U.S. 

Merit Systems Protection Board (MSPB) report, Veterans’ Employment Redress Laws in the Federal Civil 

Service. This report describes the statutes and pertinent case decisions for two laws designed to protect 

the employment rights of veterans in the civil service: (1) the Veterans Employment Opportunities Act 

of 1998 (VEOA); and (2) the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA). 

VEOA is designed to provide a redress procedure for preference eligibles and certain veterans 

who believe that an agency has not treated them in accord with Federal employment laws and regulations 

designed to reward particular types of military service. USERRA is designed to address discrimination 

based on military service and to ensure service members can resume their civilian careers when their 

military service is completed. USERRA applies to the private sector as well as the public sector. 

However, this report only discusses the USERRA redress procedures used when the employer in 

question is the Federal government. VEOA and USERRA share some common elements, but differ in 

several important respects, including the steps an appellant must take before the Board will have 

jurisdiction over an appeal and an appellant’s right to a hearing. 

VEOA is particularly challenging for parties and adjudicators because of the way in which it 

interacts with so many other civil service laws, rules, and regulations. The manner in which the VEOA 

statute is structured and the statute’s applicability to “any statute or regulation relating to veterans’ 

preference” have resulted in an extensive body of case law that may be confusing for the average veteran 

or preference eligible. It is for Congress and the President to decide what rights a veteran, preference 

eligible, or service member should have. However, when enacting amendments to title 5, it may be 

helpful if Congress would address how it intends those changes to interact with veterans’ preference

rights and the ability of a veteran to obtain redress for a violation of such rights. 

I believe that you will find this report useful as you consider issues affecting the Federal 

Government’s ability to select and maintain a high-quality workforce that includes men and women who 

have honorably served our Nation in uniform and those who continue in uniformed service today. 

Respectfully, 

Susan Tsui Grundmann 
U.S. Merit Systems Protection Board

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Office of Policy and Evaluation

Director

James M. Read

Deputy Director

James J. Tsugawa

Project Manager

Sharon Roth
TABLE OF CONTENTS

Executive Summary ................................................................................................................... i

Chapter One: Introduction ..................................................................................................... 1

Background........................................................................................................................... 2

Subject Matter Jurisdiction .................................................................................................. 4

Purpose ................................................................................................................................. 8

Methodology......................................................................................................................... 9

Chapter Two: Establishing a VEOA Case—Overview.........................................................10

Chapter Three: Filing VEOA Complaints and Appeals .......................................................13

Filing a Complaint to Exhaust Remedies Before Department of Labor ..........................14

Closing out the Department of Labor Complaint .............................................................17

Filing a Complaint with a District Court ...........................................................................18

Chapter Four: VEOA Allegations of a Violation of Preference Rights ..............................20

Preference Eligible within the Meaning of VEOA ............................................................20

Agency Violation of Rights under a Statute or Regulation Relating to Veterans’

Preference ............................................................................................................................21

Defining an “agency” for veterans’ preference rights cases .........................................21

Violation of rights under a statute or regulation relating to veterans’ preference and 

hiring ...............................................................................................................................24

Violation of rights under a statute or regulation relating to veterans’ preference and 

reductions in force ..........................................................................................................28

Chapter Five: VEOA Allegations of a Violation of the Right to Compete .........................30

A Veteran Within the Meaning of 5 U.S.C. § 3304(f)(1) ...................................................30

Agency Denial of the Right to Compete Under 5 U.S.C. § 3304(f)(1) .............................31

Defining “outside its own workforce” for right to compete cases...............................32

What it means to be allowed to “compete” ...................................................................35

Chapter Six: VEOA Relief .....................................................................................................43

Chapter Seven: USERRA—Covered Actions .......................................................................47

Anti-Discrimination Situations...........................................................................................48

Reemployment Situations ...................................................................................................50

Abandonment..................................................................................................................52

The escalator principle....................................................................................................53
Positions of “like status” ................................................................................................56

Chapter Eight: USERRA—Adjudicating Claims ..................................................................59

Establishing USERRA Jurisdiction ....................................................................................59

Establishing Merits of a USERRA Case and Burdens of Proof ........................................60

Establishing a discrimination case .................................................................................61

Agency allegations of conduct or performance issues ..................................................65

Department of Labor Role in USERRA Claims ................................................................66

No Deadlines to File USERRA Claims with MSPB, but Laches May Apply ....................67

Standing to File a USERRA claim ......................................................................................70

An “Employer” for Purposes of USERRA Jurisdiction ....................................................71

The Right to a USERRA Hearing .......................................................................................73

USERRA Relief ...................................................................................................................74

Chapter Nine: Conclusion .....................................................................................................76

Appendix A: Definition of Veteran and Related Terms (5 U.S.C. § 2108) ..........................78

Appendix B: Comparing VEOA and USERRA ....................................................................81

Appendix C: Equitable Tolling ..............................................................................................85

Appendix D: Veterans Employment Opportunities Act of 1998 Redress Statute (5 U.S.C. 

§ 3330a-c).................................................................................................................................87

Appendix E: Veterans Employment Opportunities Act of 1998 Opportunity to Compete 

Statute (5 U.S.C. § 3304(f)) .....................................................................................................92
Veterans’ Employment Redress Laws in the Federal Civil Service i

EXECUTIVE SUMMARY 

This report describes the statutes and pertinent case decisions for two laws 

designed to protect the employment rights of veterans in the civil service: 

(1) the Veterans Employment Opportunities Act of 1998 (VEOA) (codified 

at 5 U.S.C. § 3330a); and (2) the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA) (codified as amended at 

38 U.S.C. §§ 4301-4335).

VEOA provides a redress procedure for preference eligibles and certain 

veterans who believe that an agency has not treated them in accord with 

Federal employment laws and regulations designed to reward particular types 

of military service. USERRA provides procedures to address claims of 

discrimination based on military service and to ensure that service members 

can resume their civilian careers when their military service is completed. 

USERRA applies to the private sector as well as the public sector. However, 

this report only discusses the USERRA redress procedures used when the 

employer in question is the Federal government. 

USERRA and VEOA share some common elements but differ in several 

important respects. In particular, VEOA requires that, before filing an 

appeal with the U.S. Merit Systems Protection Board (“MSPB” or “the 

Board”), an appellant exhaust his or her administrative remedies with the 

Department of Labor (DOL) and adhere to strict deadlines in the absence of 

an exception known as equitable tolling. In contrast, USERRA does not 

require the exhaustion of administrative remedies and does not have strict 

deadlines for filing, although there are certain requirements if the appellant 

seeks the assistance of DOL. VEOA does not guarantee a right to a hearing; 

however, USERRA does once jurisdiction is established. Under VEOA, an 

appellant has the burden of proof on the merits. Under USERRA, 

placement of the burden of proof depends on whether the appellant alleges 

discrimination or a failure to reemploy. VEOA is particularly challenging 

for parties and adjudicators because it uses more undefined terms and 
Veterans’ Employment Redress Laws in the Federal Civil Service ii

intersects with more laws and regulations than USERRA. For that reason, 

this report contains more discussion of VEOA than it does of USERRA. 

While the information in this report should be of use to Congress, the 

President, appellants, and agencies, the lessons that each may draw from the 

facts may differ. Our major findings and recommendations are as follows:

For Congress and the President: The laws for veterans’ redress are 

complicated, especially VEOA because of the way in which it interacts with 

so many other parts of the civil service. Vague and undefined terms in 5 

U.S.C. § 3330a and the statute’s applicability to “any statute or regulation 

relating to veterans’ preference” have resulted in an extensive body of case 

law that may be confusing for the average veteran or preference eligible. It 

is for Congress and the President to decide what rights a veteran, preference 

eligible, or service member should have. But, individuals and the Federal 

Government as an employer would be well served by clarity in the laws and 

regulations, particularly in the VEOA statute and in any statute or regulation 

that intersects with it. Whenever Congress amends a section of title 5 in 

which veterans’ preference can play a role, such as Chapter 33 (which 

pertains to hiring), we encourage the members to consider how such changes 

may interact with VEOA and ensure the statutory effect is one that Congress 

intends. 

For the Office of Personnel Management (OPM): OPM has been given a 

complex system of civil service laws under which to operate, extensive 

responsibilities in that system, and limited resources to accomplish those 

responsibilities. Competing priorities have made it challenging for OPM to 

update policies and guidance to comport with changes in the law. We 

recommend that OPM make a greater effort to ensure that its regulations, 

policies, and guidance, including the Delegated Examining Operations Handbook

and the Vet Guide, are regularly checked against new Acts of Congress as

well as developments in Federal Circuit and Board law and are amended as 
Veterans’ Employment Redress Laws in the Federal Civil Service iii

needed. To the extent that the complexities of the system permit it, OPM’s 

guidance should be clear, unambiguous, and accurate.

For Veterans, Preference Eligibles, and Service Members: Appellants 

are responsible for meeting the requirements of the statutes, even if the 

statutes are complex or confusing. Appellants should pay close attention to 

the requirements of any redress procedures, particularly VEOA’s provisions 

for exhausting administrative remedies and strict deadlines for filing 

complaints with DOL and appeals with MSPB. An understanding of 

managerial discretion, and when it applies, also would be helpful to 

individuals seeking to understand whether their rights have been violated.

For Agencies: It is crucial that agencies promptly give veterans, preference 

eligibles, and service members all of their entitlements. Not only is it the 

right thing to do, but, if an agency fails to do this, it will be required to 

reconstruct what would have occurred if the laws had been followed 

properly. Such reconstructions can be expensive for agencies and harmful to 

innocent bystanders who may need to be removed from positions through 

no fault of their own.
Veterans’ Employment Redress Laws in the Federal Civil Service 1

CHAPTER ONE: INTRODUCTION

“I believe that the Federal Government, functioning in its capacity as an employer, should take the lead 

in assuring those who are in the armed services that when they return special consideration will be given to 

them in their efforts to obtain employment. It is absolutely impossible to take millions of our young men 

out of their normal pursuits for the purpose of fighting to preserve the Nation, and then expect them to 

resume their normal activities without having any special consideration shown them. ”

—President Franklin Delano Roosevelt 1

The Board recently released a report, Veteran Hiring in the Civil Service: 

Practices and Perceptions, which discussed the complexity of the laws and 

regulations pertaining to the hiring of veterans in the Federal Government.

2

 

The rules for seeking redress for the violation of such laws and regulations

are also complex. This report discusses the two main types of claims an 

individual may assert before MSPB when seeking such redress. The first is 

the Veterans Employment Opportunities Act of 1998 (VEOA) (codified at 5 

U.S.C. § 3330a), which provides a remedy if a Federal agency has improperly 

denied a veterans’ right to preference or consideration for a vacancy under a 

law granting such consideration.

3

 The second is the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA) (codified as 

amended at 38 U.S.C. §§ 4301-4335), which provides a remedy when an 

agency has discriminated on the basis of military service or refused to allow 

an individual to return to his or her position following such service.

 

1 President Franklin D. Roosevelt, Letter to Representative Ramspeck (1944) (cited in Mitchell v. 

Cohen, 333 U.S. 411, 419, n.12 (1948)).

2 See U.S. Merit Systems Protection Board, Veteran Hiring in the Civil Service: Practices and Perceptions 

(2014), available at www.mspb.gov/studies.

3 The Veterans’ Benefits Improvement Act of 2004 (VBIA) (Pub.L. No. 108-454) modified 5 

U.S.C. §§ 3330a and 3330b, which contain provisions initially codified by VEOA. For a discussion of the 

effect of the VBIA on VEOA, see Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶¶ 22-30 (2007). 

For convenience, the statutory provisions established directly by VEOA, or in any amendment to statutes 

established by VEOA, are typically referred to as VEOA.
Veterans’ Employment Redress Laws in the Federal Civil Service 2

BACKGROUND

The history of veterans’ preference in Federal hiring and retention predates 

the founding of the civil service in the Pendleton Act of 1883. 4 However, 

there is a difference between a right and an opportunity to seek redress of 

that right. In the Veterans’ Preference Act of 1944 (VPA), Congress 

recognized that millions of Americans had delayed or put on hold their 

civilian careers so that they could serve the Nation in uniform. The VPA 

was intended to help with their readjustment, rehabilitation, and reemployment by providing a preference in Federal hiring and an avenue for 

redress if that preference was denied.

5

 The primary avenues for redress 

today—VEOA and USERRA—have their roots in the VPA. 6

The last major reorganization of Federal civil service laws was the Civil 

Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111. The

CSRA requires that the Federal Government give veterans and preference 

eligibles certain preferences in hiring as well as other aspects of employment 

such as retention in a reduction in force (RIF). As explained in our report, 

Veteran Hiring in the Civil Service: Practices and Perceptions, defining veterans 

and other preference eligibles is complicated. Depending on the law or 

regulation at issue, whether a particular individual is a “veteran” can vary. A 

preference eligible can include the spouse, widow, or mother of a person 

who served in the military, even if the person seeking to use the preference 

has never served. Appendix A contains the statutory definitions for veteran, 

disabled veteran, and preference eligible. 

 

4 See Hilton v. Sullivan, 334 U.S. 323, 336-37 (1948) (explaining the history and scope of the 

retention provisions for veterans). 

5 Mitchell v. Cohen, 333 U.S. 411, 418-20 (1948).

6 “Veterans’ preference rights are defined by the Veterans’ Preference Act of 1944 (“VPA”), Pub. 

L. No. 78–359, 58 Stat. 387 (codified at 5 U.S.C. §§ 2108, 3309–3320), and its attendant regulations, see 5 

C.F.R. §§ 302.101–302.403 (2005).” Patterson v. Department of the Interior, 424 F.3d 1151, 1155 (Fed. Cir. 

2005). “The legal basis for veterans’ preference is the Veterans’ Preference Act of 1944, as amended.” 

U.S. Office of Personnel Management, Guide to Processing Personnel Actions, Chapter 7-3.
Veterans’ Employment Redress Laws in the Federal Civil Service 3

In 1998, the Senate Committee on Veterans’ Affairs held hearings in which it 

found that veterans were represented in the Federal workforce at twice the 

rate as the private sector and that a veteran was four times as likely as a nonveteran to be retained in a RIF. 7

 However, the committee also determined 

“that while veterans as a group appear to be faring well in Federal 

employment, individual cases reveal that there is a pressing need for a 

uniform redress mechanism for the enforcement of veterans’ preference laws 

in both hiring and reductions-in-force decisions.”

8

 To achieve this purpose, 

Congress enacted VEOA.

VEOA enables those entitled to preference to seek redress through DOL 

and if unsatisfied with that result, to file an appeal with MSPB.

9

 VEOA also 

added a new right for veterans—with three years of service—to be 

considered for positions if the hiring agency accepts applicants from outside 

its own workforce. A violation of this right can also be redressed through a 

complaint to DOL and, if the appellant remains unsatisfied, a subsequent

appeal to MSPB.10 Chapters Two through Six will discuss VEOA redress in 

greater depth.11

The other avenue for redress discussed in this report is USERRA, enacted in 

1994 to prevent discrimination based on military service. USERRA is 

different from VEOA in several ways. Most importantly, USERRA is not 

unique to the Federal Government; it applies to all U.S. employers. It also 

covers a different but overlapping population—service members—which can 

include those who meet the VEOA definition of “veteran,” but also covers 

additional individuals who have served the Nation. Unlike VEOA, USERRA 

 

7 Veterans Employment Opportunities Act of 1998, S. Rep. 105-340, at 15 (1998) (citing testimony 

by the Government Accountability Office (GAO) (then called the General Accounting Office)).

8 Veterans Employment Opportunities Act of 1998, S. Rep. 105-340, at 15 (1998).

9 5 U.S.C. § 3330a.

10 5 U.S.C. §§ 3304(f), 3330a.

11 VEOA also added a new prohibited personnel practice (PPP), codified at 5 U.S.C. § 2302(b)(11), 

which prohibits an official involved in a personnel action from knowingly acting or knowingly failing to act 

if such action or lack of action violates a veterans’ preference requirement. 
Veterans’ Employment Redress Laws in the Federal Civil Service 4

does not require that an individual first seek assistance from DOL. 12 

Appendix B contains a chart showing the major differences and similarities 

between USERRA and VEOA.

There are two main aspects to USERRA. The first is employment: An 

employer is prohibited from discriminating against an applicant or employee 

on the basis of past, current, or future military obligations. 13 The second is 

reemployment: A person who has temporarily departed employment to 

serve in the uniformed services has a right to return to the position he or 

she would have held if not for that service. 14 Chapters Seven and Eight will 

discuss USERRA in greater depth.

SUBJECT MATTER JURISDICTION

The Board’s power to adjudicate an action is restricted to matters where its 

jurisdiction is specifically provided by law, rule, or regulation. 15 This means 

that Congress must have granted to MSPB the authority to adjudicate the 

subject being placed before MSPB, or authorized an agency to create a 

regulation or rule that grants MSPB jurisdiction over the subject. This is 

known as “subject matter jurisdiction.”

16

 Without subject matter 

jurisdiction, there cannot be a recognizable decision on the merits of a 

case.

17

 As our reviewing court has noted, “Although often effecting a 

seemingly harsh result, courts cannot disregard jurisdictional requirements 

 

12 A Federal employee who believes his employer has violated USERRA may seek corrective action 

by filing a complaint with the Secretary of Labor through the Veterans’ Employment and Training Services 

(VETS), or by filing an appeal directly with the Board. Wible v. Department of the Army, 120 M.S.P.R. 333, 

¶ 12 (2013). As explained in Chapter Eight, USERRA—Adjudicating Claims, when a USERRA appellant 

opts to use the services of DOL, the individual must then exhaust that avenue for redress before filing an 

appeal with MSPB.

13 38 U.S.C. § 4311(a).

14 38 U.S.C. § 4313. 

15 Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000); King v. Reid, 59 F.3d 

1215, 1217 (Fed. Cir. 1995).

16 Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (citing Spruill v. Merit 

Systems Protection Board, 978 F.2d 679, 686 (Fed. Cir. 1992)).

17 Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000).
Veterans’ Employment Redress Laws in the Federal Civil Service 5

established by Congress out of sympathy for particular litigants. . . When 

jurisdiction is lacking, the only function remaining to the court is that of 

announcing the fact and dismissing the cause.”

18

 

The issue of Board jurisdiction is always before the Board and may be raised 

by either party or by the Board on its own motion at any time during a 

Board proceeding. 19

The Board has authority over a wide variety of subject matters, including but 

not limited to appeals of adverse actions for cause (i.e. removals, 

suspensions, demotions), RIFs, and retirement benefit decisions reached by 

OPM. The Board also has jurisdiction over individual right of action (IRA) 

appeals alleging retaliation for whistleblowing and appeals brought under 

VEOA and USERRA. Additionally, the Board has jurisdiction over 

complaints alleging the commission of prohibited personnel practices (PPPs)

when such complaints are filed by the Office of Special Counsel (OSC).

20

Each subject matter can have a different set of criteria to establish jurisdiction, 

including who may file the appeal, the time limits in which to act, and any 

administrative remedies that must be exhausted before seeking a judgment 

from MSPB.

When Congress explicitly establishes a requirement—such as filing a 

complaint within a certain time period—the Board generally cannot waive 

it.21 However, where Congress is silent and the Board has the power to 

 

18 Chertkov v. Office of Personnel Management, 52 F.3d 961, 966 (Fed. Cir. 1995) (internal punctuation

and citations omitted).

19 See, e.g., Scott v. Department of the Air Force, 113 M.S.P.R. 434, ¶ 5 (2010) (reopening an appeal on 

the Board’s own motion to dismiss the case for lack of jurisdiction). Case law refers to this type of motion 

as “sua sponte”—meaning it was done by an adjudicatory body on its own accord without a request from a 

party.

20 For one PPP, 5 U.S.C. § 2302(b)(11), OSC does not have the authority to seek corrective action. 

See 5 U.S.C. § 2302(e)(2). Section 2302(b)(11) is the PPP relating to knowing violations of veterans’

preference rights. As explained in this report, individuals who believe their preference rights have been 

violated can seek redress under VEOA, thereby obtaining corrective action if the merits of the case are 

proven. 

21 See Speker v. Office of Personnel Management, 45 M.S.P.R. 380, 385 (1990) (explaining that a statutory 

deadline cannot be waived except in rare circumstances).
Veterans’ Employment Redress Laws in the Federal Civil Service 6

establish a requirement, that requirement can be waived. 22 For this reason, it 

is important to recognize that MSPB’s rules for filing one type of case (such 

as a VEOA appeal) can be different than the rules for another type of case 

(such as an appeal of a removal).23 Parties must look to the rules established 

for their specific subject matter or risk having their case be dismissed.

Jurisdiction in VEOA and USERRA cases can be confusing because of the 

way in which it may be intertwined with the merits of the case. Parties may 

find it helpful to focus on the legal terms “nonfrivolous” and 

“preponderance of the evidence.” To establish MSPB’s jurisdiction over a

VEOA or USERRA claim, the appellant’s allegations must be nonfrivolous.

24

 

An allegation is enough to show jurisdiction. 25 However, to prove the merits

of the case the party must use evidence to prove that it is more likely than 

not that his or her allegations are true.

26 The party bearing the obligation to 

prove an element of the case can vary. 27 In a VEOA or USERRA case, the 

term for “winning” the case is that “relief” is granted to the appellant. 

Jurisdiction means the Board will be able to look at the merits to decide 

whether or not to grant relief—but jurisdiction alone is not a guarantee that 

the merits will be proven and relief granted.

 

22 See 5 C.F.R. § 1201.12 (explaining that the Board may revoke, amend, or waive any of its

regulations and a judge may, for good cause shown, waive a Board regulation unless a statute requires 

application of the regulation). 

23 Compare 5 U.S.C. § 3330a(d)(1)(B) (15 days), with 5 C.F.R. § 1201.22 (30 days). 

24 The Board has held that a VEOA claim should be liberally construed and an allegation, in 

general terms, that an appellant’s veterans’ preference rights were violated is sufficient to meet the 

requirement of a nonfrivolous allegation establishing Board jurisdiction. Searcy v. Department of Agriculture, 

115 M.S.P.R. 260, ¶ 11 (2010); Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 14 (2009). 

25 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (VEOA preference 

rights); Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (VEOA veterans’ right to 

compete); Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (USERRA rights). 

26 Beyers v. Department of State, 120 M.S.P.R. 573, ¶ 6 (2014) (VEOA); Burroughs v. Department of the 

Army, 120 M.S.P.R. 392, ¶ 5 (2013) (USERRA). The Board may consider unrebutted sworn statements as 

competent evidence of the matters asserted in the statement. Melendez v. Department of Veterans Affairs, 73 

M.S.P.R. 1, 4 (1996).

27 Compare Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 11 (2010) (the appellant must prove the 

VEOA case), with Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005) (the agency has the burden of 

proof in a USERRA reemployment case, while there is a shifting burden for a USERRA dis crimination 

case).
Veterans’ Employment Redress Laws in the Federal Civil Service 7

When the jurisdictional elements of a claim are intertwined with the merits 

of the claim and the appellant makes the requisite jurisdictional allegations, 

the preferred approach is for the Board to take jurisdiction and then resolve 

the merits.28 Thus, the Board may accept a claim as nonfrivolous for 

purposes of jurisdiction, but then find that the merits were not proven by a 

preponderance of the evidence. 29

A VEOA or USERRA claim may occur in a matter over which the Board has 

jurisdiction under a different statute. For example, the removal of an 

employee under 5 U.S.C. chapter 75 may be appealed to the Board. Such an 

action is known as an “otherwise appealable action.” If an appellant files a 

timely appeal of an otherwise appealable action and also raises a VEOA or 

USERRA claim for that appeal, the VEOA or USERRA claim will be 

adjudicated as an affirmative defense. 30

However, if an appellant raises VEOA or USERRA as an affirmative defense 

in an appeal of an adverse action that is either untimely or not within the 

Board’s jurisdiction, the Board will consider the appellant’s allegations that 

an adverse action was taken in violation of USERRA or VEOA as separate 

claims. Thus, if a VEOA or USERRA appeal is timely but an adverse action 

appeal of the same personnel action is untimely, the VEOA or USERRA 

appeal can be adjudicated while the untimely action will be dismissed.

31

 

 

28 Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 10, n.2 (2005).

29 See, e.g., Elliott v. Department of the Air Force, 102 M.S.P.R. 364, ¶¶ 8-9 (2006) (explaining that the 

Board had jurisdiction because the appellant made the required nonfrivolous allegations, but that relief 

must be denied because the evidence showed his preference rights were not violated).

30 Nahoney v. U.S. Postal Service, 112 M.S.P.R. 93, ¶ 16 (2009); Aguilar v. U.S. Postal Service, 102 

M.S.P.R. 102, ¶ 8 (2006). An affirmative defense is when an employee claims that an action should not be 

sustained because: (1) there was a harmful error in the agency ’s procedures for taking the action; (2) the 

decision was based on a PPP (such as whistleblower retalia tion); or (3) the decision was otherwise not in 

accordance with the law. 5 U.S.C. § 7701(c)(2).

Affirmative defenses involving veterans’ rights are relatively rare. For example, of the 5 C.F.R. Part 752 

cases closed by MSPB between FY 2008 and FY 2013, l ess than 2 percent involved an affirmative defense 

under USERRA and less than 2 percent involved an affirmative defense under VEOA.

31 Nahoney v. U.S. Postal Service, 112 M.S.P.R. 93, ¶ 16 (2009); Aguilar v. U.S. Postal Service, 102 

M.S.P.R. 102, ¶ 8 (2006). 
Veterans’ Employment Redress Laws in the Federal Civil Service 8

PURPOSE

Under its statutory authority to conduct studies of the civil service, MSPB is 

authorized to conduct research and report upon laws, regulations, and 

Government actions that affect the health of the merit systems, and in 

particular upon actions that affect the extent to which the civil service is free 

from the commission of prohibited personnel practices.

32

 Veterans’

preference is an important part of the civil service and a knowing violation 

of veterans’ preference is a PPP. Enabling preference eligibles to obtain 

redress for violations of their rights is an important mechanism to ensure 

lawful preference is not denied. 33 

We have determined that it would be helpful to Congress, agencies, 

stakeholders, service members, veterans, and preference eligibles if we 

provided a report that explained how VEOA and USERRA currently 

operate. Our purpose is to help those who create and amend laws 

understand the current state of the law; help those responsible for complying 

to understand their obligations; and help those who seek its protections to 

understand their specific rights. 

In addition to its studies authority, MSPB has jurisdiction over appeals 

brought under both VEOA and USERRA. The Board is prohibited from 

issuing advisory opinions on adjudicatory matters.

34

 For this reason, this 

report differs from many products issued under our studies function. We 

can inform readers about prior holdings by the Board and its reviewing 

court, the Federal Circuit. We are also permitted to discuss holdings by 

other courts of mandatory or persuasive jurisdiction. 35 However, we will not 

 

32 5 U.S.C. § 1204(a)(3). 

33 Between FY 2008 and FY 2013, the Board closed 2,766 cases involving a USERRA claim and 

1,625 cases involving a VEOA claim. Of these, only 195 cases involved both a USERRA and a VEOA 

claim.

34 5 U.S.C. § 1204(h).

35 A mandatory decision is one that is binding on the Board, such as a decision by the Federal 

Circuit or the Supreme Court. Decisions by other courts may inform deliberations by the Board and those 

decisions may be followed if the Board finds their logic persuasive. However, such holdings are not 
Veterans’ Employment Redress Laws in the Federal Civil Service 9

fill in any gaps where the Board or a court has not yet interpreted the law. 

While we hope this report will be useful in clarifying how veterans’ redress 

laws function, it is not a holding of the Board and we recommend that 

parties refer directly to the statutes, regulations, and cases applicable to their 

particular situations.

Unlike VEOA, which is unique to the Federal Government, USERRA 

applies to employers in the private sector and state governments as well as in 

the Federal Government.36 However, the enforcement proceedings are 

different if the employer in question is a Federal agency. 37 This report only 

addresses the Federal process and cases pertinent to adjudication of USERRA claims 

against the Federal Government as an employer. Individuals interested in 

USERRA for the private sector should consult the Department of Labor’s 

Veterans’ Employment and Training Service (VETS) website at 

http://www.dol.gov/vets/ or contact DOL directly. 

METHODOLOGY

This report relies primarily upon statutes, regulations, and decisions issued

by the Board and the courts. Our research for this report included a request 

for information sent to DOL and questionnaires sent to two veterans 

groups. Neither DOL nor the veterans groups submitted replies. We also 

submitted questions to the U.S. Office of Personnel Management (OPM), 

which did respond. OPM reported that it did not have data indicating the 

most common misunderstandings that veterans or others with preference 

eligibility have about their rights and opted not to express an opinion on 

how the redress procedure laws or regulations could be improved.

 

binding and the Board may hold differently if it sees fit. See Fairall v. Veterans Administration, 33 M.S.P.R. 

33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987).

36 38 U.S.C. § 4303(4)-(6). 

37 Compare 38 U.S.C. § 4323 (private and state employers), with 38 U.S.C. § 4324 (Federal executive 

agencies).
Veterans’ Employment Redress Laws in the Federal Civil Service 10

CHAPTER TWO: ESTABLISHING A VEOA CASE—OVERVIEW

VEOA provides a system of redress for two sets of situations: 

1. A preference eligible (veteran or not) alleges that his or her 

preference under any statute or regulation relating to veterans’

preference has been violated. 38

2. A veteran who has been separated from the armed forces under 

honorable conditions after 3 years or more of active service alleges 

that he or she has been denied the opportunity to compete for vacant 

positions for which the agency making the announcement will accept 

applications from individuals outside its own workforce under merit 

promotion procedures (MPP).

39

The criteria to establish that MSPB has jurisdiction over one of these two 

types of cases are similar, but slightly different. Parties need to identify the 

correct jurisdictional rule for their particular set of facts. Once jurisdiction 

is established, an appellant will need to prove the exact same criteria, but to 

a different standard. Remember, jurisdiction requires the appellant make a 

nonfrivolous assertion; obtaining relief (“winning” the case) requires that the 

appellant use evidence to prove that it is more likely than not that his or her 

allegations are true.

40

The term “dismissal for failure to state a claim” refers to a situation in 

which, if every fact asserted by the appellant were true, and all reasonable 

 

38 5 U.S.C. § 3330a(a)(1)(A). The Board has held that 5 U.S.C. § 3330a does not define the term 

“relating to veterans’ preference” and that, among other things, veterans’ preference applies to section 

3304(b), which requires an examination before an individual may enter the competitive service. Dean v. 

Department of Agriculture, 104 M.S.P.R. 1, ¶¶ 8-10 (2006). See also Willingham v. Department of the Navy, 118 

M.S.P.R. 21, ¶ 8 (2012) (holding that veterans’ preference for purposes of VEOA redress could be found 

in an agency regulation).

39 5 U.S.C. §§ 3330a(a)(1)(B); 3304(f)(1). A copy of a section of the VEOA redress statute is in 

Appendix D.

40 See Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 11 (2010) (burden for jurisdiction); 

Beyers v. Department of State, 120 M.S.P.R. 573, ¶ 6 (2014) (preponderant evidence is required to prove the 

merits of a VEOA claim).
Veterans’ Employment Redress Laws in the Federal Civil Service 11

inferences applied in the appellant’s favor, the appellant still could not 

prevail as a matter of law. In other words, if the appellant could prove 

everything he or she asserts, but those facts could not reasonably be 

interpreted in a way that would constitute a violation of his or her rights as a 

veteran or preference eligible, then the MSPB administrative judge (AJ) can 

dismiss the case for a failure to state a claim for which relief could be 

granted.41 Whether an appellant has stated a claim upon which relief may be 

granted goes to the sufficiency of the pleading and is a separate question 

from jurisdiction.

42

A VEOA appellant is not automatically entitled to a hearing regarding either 

jurisdiction or the merits of a VEOA appeal.

43

 The AJ may order a hearing 

for a VEOA case if he or she determines it is necessary to resolve issues of 

jurisdiction or timeliness. 44 However, the Board has the authority to decide

the merits of a VEOA appeal without a hearing if there is no genuine 

dispute of material fact and one party must prevail as a matter of law. 45

The jurisdictional standards for the two types of VEOA cases are as follows:

A preference rights appeal: To establish Board jurisdiction over a preference 

rights appeal brought under VEOA, an appellant must: (1) show that the 

appellant exhausted his or her remedies with DOL, and (2) make 

nonfrivolous allegations that: (i) the appellant is a preference eligible within 

the meaning of the VEOA; (ii) the action(s) at issue took place on or after 

the October 30, 1998 enactment date of the VEOA; and (iii) the agency 

 

41 See Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶¶ 8-11 (2008); Cruz v. Department of 

Homeland Security, 98 M.S.P.R. 492, ¶ 6 (2005). 

42 See Alford v. Department of Defense, 113 M.S.P.R. 263, ¶¶ 11-12, 14 (2010) (holding that the AJ 

should not have dismissed the case for lack of jurisdiction but rather s hould have dismissed it for failure to 

state a claim for which relief may be granted).

43 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no entitlement 

to a VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007) (en 

banc) (finding that the Board cannot exercise discretion, but rather must grant a USERRA hearing if one is 

requested).

44 5 C.F.R. § 1208.23.

45 Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011). 
Veterans’ Employment Redress Laws in the Federal Civil Service 12

violated the appellant’s rights under a statute or regulation relating to 

veterans’ preference.46

A right to compete appeal: To establish Board jurisdiction over a right to 

compete appeal brought under VEOA, an appellant must: (1) show that he 

or she exhausted his or her remedy with DOL, and (2) make nonfrivolous 

allegations that: (i) the appellant is a veteran within the meaning of 5 U.S.C. 

§ 3304(f)(1);

47 (ii) the actions at issue took place on or after the December 

10, 2004 enactment date of the Veterans’ Benefits Improvement Act of 2004

(VBIA); and (iii) the agency denied him or her the opportunity to compete 

under merit promotion procedures for a vacant position for which the 

agency accepted applications from individuals outside its own workforce in 

violation of 5 U.S.C. § 3304(f)(1). 48

For both types of VEOA cases, once jurisdiction is established through a 

nonfrivolous claim, the appellant will be required to prove by preponderant 

evidence that the agency violated one or more of the appellant’s statutory or 

regulatory veterans’ preference rights.

49

Because the administrative exhaustion requirement is the same for both sets 

of appeals, we will address it before discussing the other criteria.

 

46 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Campion v. Merit 

Systems Protection Board, 326 F.3d 1210, 1213, 1215 (Fed. Cir. 2003). See 5 U.S.C. § 3330a.

47 5 U.S.C. § 3304(f)(1) states that if an agency uses merit promotion procedures for a vacancy and 

accepts applicants from outside its own workforce, the agency must also consider applications from 

“preference eligibles or veterans who have been separated from the armed forces under honorable 

conditions after 3 years or more of active service.”

48 Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); Styslinger v. Department of the 

Army, 105 M.S.P.R. 223, ¶ 31 (2007).

49 Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 11 (2010).
Veterans’ Employment Redress Laws in the Federal Civil Service 13

CHAPTER THREE: FILING VEOA COMPLAINTS AND APPEALS

The discussion in this chapter is limited to actions filed directly under the 

VEOA redress authority. As noted earlier, if an appellant files a timely 

appeal with MSPB for an otherwise appealable action (such as the removal 

of an employee) and also raises a VEOA claim for that appeal, the VEOA 

claim will be adjudicated as an affirmative defense. Appellants filing unde r a 

statutory authority other than VEOA should consult the rules and 

regulations that pertain to that authority. 50

When filing a complaint under VEOA, an appellant must exhaust his or her 

administrative remedies with DOL prior to seeking redress before MSPB. 

“The doctrine of exhaustion of administrative remedies is well established in 

the jurisprudence of administrative law. The doctrine provides that no one 

is entitled to judicial relief for a supposed or threatened injury until the 

prescribed administrative remedy has been exhausted.”

51

 There are several 

reasons why the law supports this doctrine:

1. It provides an agency with “an opportunity to correct its own mistakes 

with respect to the programs it administers before it is haled into federal 

court[.]”

52

2. It promotes efficiency because “[c]laims generally can be resolved much 

more quickly and economically in proceedings before an agency than in 

litigation in federal court. In some cases, claims are settled at the 

administrative level, and in others, the proceedings before the agency 

convince the losing party not to pursue the matter in federal court. ”

53

 

50 See, e.g., Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 16 (2008) (explaining in the 

context of a whistleblowing appeal that exhaustion of remedies before OSC is not required to raise 

whistleblower retaliation as an affirmative defense in an otherwise appealable action).

51 Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (internal punctuation and citations omitted). 

52 Woodford v. Ngo, 548 U.S. 81, 89 (2006). 

53 Woodford v. Ngo, 548 U.S. 81, 89 (2006). 
Veterans’ Employment Redress Laws in the Federal Civil Service 14

3. If the claim is brought before MPSB or another adjudicator y body, the 

record created by the administrative process may be useful in those 

proceedings.

54

FILING A COMPLAINT TO EXHAUST REMEDIES BEFORE DEPARTMENT 

OF LABOR

The first step of the exhaustion process is for the appellant to file a written 

complaint with DOL containing “a summary of the allegations that form the 

basis for the complaint.”

55

 Unlike some aspects of VEOA, which will be 

liberally construed in favor of the veteran, exhaustion has very strict rules. 56 

A VEOA complaint must be filed with DOL within 60 days after the date of 

the alleged violation, unless a concept called “equitable tolling” applies.

57

Equitable tolling may permit a rare exception to this deadline if: (1) the 

complainant has actively pursued his claim by filing a defective pleading 

during the statutory period; or (2) the complainant was “induced or tricked 

by his adversary’s misconduct into allowing the filing deadline to pass.”

58

 

The Federal Circuit has held that the principles of equitable tolling apply to 

the deadline for filing a complaint with DOL and filing an appeal with

 

54 Woodford v. Ngo, 548 U.S. 81, 89 (2006). In Ngo, the Court noted that the record created when 

exhausting administrative remedies may be useful for “judicial consideration.” The Board is a quasijudicial agency operating under administrative law. However, the record established when an appellant 

exhausts his or her administrative remedies with DOL may be helpful to the Board when adjudicating an 

appeal as well as assisting its reviewing court when reviewing the Board ’s decision.

55 Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 9 (2011) (quoting 5 U.S.C. 

§ 3330a(a)(2)(B); 5 C.F.R. § 1208.23(a)(4)).

56 Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10 (2011) (explaining that although the 

Board uses a liberal pleading standard for allegations of veterans’ preference violations in a VEOA appeal, 

evidence of the exhaustion requirement is mandatory under the statute and is not subject to the same 

liberal construction).

57 5 U.S.C. § 3330a(a)(2)(A). 

58 Hayes v. Department of the Army, 111 M.S.P.R. 41, ¶ 10 (2009) (quoting Irwin v. Department of 

Veterans Affairs, 498 U.S. 89, 96 (1990); Garcia v. Department of Agriculture, 110 M.S.P.R. 371, ¶ 6 (2009). See 

also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (explaining that equitable relief is granted 

“sparingly” and does not apply “where the claimant failed to exercise due diligence in preserving his legal 

rights.”)
Veterans’ Employment Redress Laws in the Federal Civil Service 15

MSPB.

59

 For more on equitable tolling, please see Appendix C. Absent 

equitable tolling, a failure to timely file a complaint with DOL will deprive 

MSPB of jurisdiction. 60

Once the complaint is filed, DOL will investigate it.

61

 However, the 

complaint must be adequately specific as to what issues are being raised. 

For example, in Burroughs v. Department of the Army, 115 M.S.P.R. 656 (2011), 

the appellant informed DOL that he objected to a particular vacancy 

announcement. However, his complaint did not make allegations that the 

agency had passed over him, failed to apply veterans’ preference points, or 

denied his right to compete for the position. 62 When the appellant attempted 

to raise these three issues on appeal to MSPB, the Board held that because 

the appellant’s complaint was not sufficient to inform DOL of his 

allegations, he had not exhausted the administrative remedies. Therefore, 

the Board lacked jurisdiction over those allegations. 63 

After investigation, if DOL finds that it is more likely than not that the 

alleged violation occurred, DOL will make “reasonable efforts” to ensure 

that the agency involved complies with the statute or regulation that has 

 

59 Kirkendall v. Department of the Army, 479 F.3d 830, 844 (Fed. Cir. 2007) (holding that 5 U.S.C. 

§§ 3330a(a)(1)(A) and 3330a(d)(1)(B) are subject to equitable tolling).

60 Thompson v. Department of the Army, 112 M.S.P.R. 153, ¶ 14 (2009) (explaining that “simply 

calling” DOL does not satisfy the requirement, unless DOL—through a failure to perform its 

obligations—caused the appellant to miss the opportunity to file in writing); 5 U.S.C. § 3330a(d)(1). See

Sears v. Department of the Navy, 86 M.S.P.R. 76, ¶ 7 (2000) (holding that the Board cannot have jurisdiction 

in a VEOA case if the appellant fails to file a complaint with DOL).

61 5 U.S.C. § 3330a(b)(1). A knowing violation of veterans’ preference is a PPP under 5 U.S.C. 

§ 2302(b)(11), but OSC’s authority to seek corrective action is different for (b)(11) than it is for the other 

PPPs. 5 U.S.C. § 2302(e)(2). Under a memorandum of understanding between OSC and DOL, “[i]f OSC 

receives an allegation of a violation of veterans’ preference under section 2302(b)(11) of title 5, OSC will 

advise the complainant that it does not have the authority to seek corrective action for alleged violations 

of § 2302(b)(11) and will refer the individual to VETS to seek redress under VEOA.” Memorandum of 

Understanding Between Veterans’ Employment and Training Service, United States Department of Labor 

and the United States Office Of Special Counsel, at 3, available at https://osc.gov/resources/osc_d11.pdf. 

62 Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10 (2011). Because Mr. Burroughs has 

multiple Board cases that are instructive, his cases in this report include the full citation in the text to 

distinguish between them. For an explanation of pass-over procedures, preference points, and the right to 

compete, please see our report Veteran Hiring in the Civil Service: Practices and Perceptions, available at 

www.mspb.gov/studies. 

63 Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10 (2011). 
Veterans’ Employment Redress Laws in the Federal Civil Service 16

been violated.64 If the complaint is not resolved, DOL will provide a written 

notice to the complainant of the results of the investigation. 65

Cases have arisen in which DOL has issued a notice that it considers the 

complaint satisfactorily resolved, yet the complainant is not satisfied and 

wishes to file an appeal with MSPB. For example, in Gingery v. Department of 

the Treasury, during DOL’s investigation, the Treasury Department admitted 

that it had violated the appellant’s veterans’ preference rights by failing to 

grant him veterans’ preference status when processing his application. The 

agency had not allowed the appellant to take a test that assessed skills 

necessary for the position to which he had applied. The Treasury 

Department offered to allow him to take the test, and promised that he

would receive a tentative job offer if he passed. DOL considered this a 

satisfactory resolution—the appellant did not. The appellant filed a VEOA 

appeal with MSPB, and the Board held that DOL’s resolution of the 

appellant’s VEOA complaint did not divest the Board of jurisdiction over 

his VEOA appeal. DOL’s action in closing the case served as exhaustion of 

the appellant’s administrative remedies, but the nature of the disposition did 

not alter the appellant’s entitlement to appeal to the Board. 66

Cases have also arisen in which DOL has concluded that a complaint does 

not fall under its VEOA jurisdiction. The Board has held that it can find 

that a pre-appeal complaint process has been exhausted when an appellant 

has attempted to obtain a necessary determination and the agency 

responsible for making that determination has refused to do so. Therefore ,

a refusal by DOL to address an appellant’s complaint allows the Board to 

find that the appellant has exhausted his DOL remedy. 67

 

64 The statute instructs DOL to make its determinations based upon a preponderance of the 

evidence. See 5 U.S.C. § 3330a(c).

65 5 U.S.C. § 3330a(c)(2).

66 Gingery v. Department of the Treasury, 110 M.S.P.R. 83, ¶¶ 4-8, 20 (2008).

67 Morris v. Department of the Army, 113 M.S.P.R. 304, ¶ 10 (2010).
Veterans’ Employment Redress Laws in the Federal Civil Service 17

CLOSING OUT THE DEPARTMENT OF LABOR COMPLAINT

Before filing an appeal with MSPB, the matter must be closed at DOL 

through one of two means: (1) DOL issues a notice informing the appellant 

that the matter is closed; or (2) the appellant notifies DOL that he or she has 

decided to file an appeal with MSPB (after which, DOL “shall not continue 

to investigate or further attempt to resolve the complaint to which the 

notification relates”).

68

 Until one of these two things has happened, MPSB 

will not have jurisdiction over the case. 69

For example, in Burroughs v. Department of the Army, 116 M.S.P.R. 292 (2011), 

the appellant filed a VEOA appeal but did not submit evidence that he had 

received a letter from DOL or informed DOL of his intent to file an appeal 

with the Board. The Clerk of the Board issued a show cause order providing 

the appellant with notice regarding the exhaustion issue and ordering him to 

file evidence and argument to show that he either received written 

notification of the results of DOL’s investigation or notified DOL in writing 

of his intention to file a Board appeal. When the appellant failed to provide 

this evidence and argument, the Board dismissed the appeal for a lack of 

jurisdiction because exhaustion of remedies at DOL is a requirement for 

VEOA jurisdiction to attach.70

The VEOA statute includes strict time requirements for both of these 

options (unless equitable tolling applies).71 If DOL issues a letter, the appeal 

cannot be filed more than 15 days after receipt of the letter. If the appellant 

opts to file without the letter, the appellant cannot file “before the 61st day”

 

68 Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 15 (2007). The appellant must give DOL 

60 days in which to attempt to resolve the complaint before the appellant may seek redress by filing an 

appeal with MSPB. 5 U.S.C. § 3330a(d).

69 5 U.S.C. § 3330a(d).

70 Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶¶ 8, 10 (2011). 

71 Kirkendall v. Department of the Army, 479 F.3d 830, 843-44 (2007) (holding that 5 U.S.C. 

§§ 3330a(a)(1)(A) and 3330a(d)(1)(B) are subject to equitable tolling).
Veterans’ Employment Redress Laws in the Federal Civil Service 18

after the complaint was filed. 72 As noted before, it is very important that 

veterans and preference eligibles pay close attention to these requirements. 

The Board does not have the authority to waive a statutory deadline for 

“excusable neglect.”

73

FILING A COMPLAINT WITH A DISTRICT COURT

A rarely used provision of the VEOA statute permits an individual to seek 

redress in a United States district court. 74 The individual still must exhaust 

the administrative remedies before DOL and must file an initial appeal with 

MSPB.75 Once that is done, a VEOA claim may be filed in district court, 

provided that all of the following criteria are met:

1. The claim cannot be filed before the 121st day after the appeal was 

filed with MSPB. 76 

2. The individual has filed a document with MSPB informing MSPB that 

the individual has elected to pursue relief in the district court in lieu 

of continuing the appeal before MSPB. 77

3. MSPB has not yet issued a “judicially reviewable decision on the 

merits of the appeal.”

78

 

 

72 5 U.S.C. § 3330a(d). 

73 See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).

74 5 U.S.C. § 3330b. In FY 2009-2013, only three cases were closed at MSPB as a result of notice 

that the appellant intended to file an appeal in a district court. We cannot know the reasoning of 

individual appellants, but one possible explanation why district courts are not used f or more VEOA 

appeals may be that, by law, there is a fee to file a civil action with the district court, whereas there are no 

fees for filing with the Board. See 28 U.S.C. § 1914.

75 See Hill v. Potter, 48 F. App’x 198, 199 (6th Cir. 2002); Hunt v. Department of the Army, 30 F. App’x 

567, 568 (6th Cir. 2002); Daniels v. Department of Veterans Affairs, 2014 WL 1651967, at *2 (N. Dist. Ga. 

2014); King v. Tobyhanna Army Depot, 2013 WL 2896841, 17 (Middle Dist. Pa. 2013). 

76 5 U.S.C. § 3330b.

77 5 U.S.C. § 3330b. See, e.g., Conyers v. Rossides, 558 F.3d 137, 149 (2nd Cir. 2009) (noting that 

filing notice with the Board is a prerequisite to bringing a claim under 5 U.S.C. § 3330b); Williams v. General 

Services Administration, 2011 WL 1344173, at *6 (Middle Dist. Fl. 2011) (holding that the district court had 

jurisdiction because the appellant timely filed with the court after notifying the Board of its intent to do 

so).
Veterans’ Employment Redress Laws in the Federal Civil Service 19

A decision by MSPB is not judicially reviewable until it is a “final decision.”

79

 

A decision by an administrative judge typically becomes a final decision 35 

days after it is issued unless a timely petition for review is filed with the 

Board.

80

 If a petition for review is filed and denied or dismissed, the 

administrative judge’s decision becomes the final decision of the Board. If 

the petition is granted, the Board’s decision fully disposing of the matter 

becomes the final decision.

81

 

78 5 U.S.C. § 3330b. 

79 See James v. Federal Energy Regulatory Commission, 747 F.2d 1581, 1582-83 (Fed. Cir. 1984); 5 C.F.R. 

§ 1201.113. 

80 5 C.F.R. § 1201.113.

81 James v. Federal Energy Regulatory Commission, 747 F.2d 1581, 1582-83 (Fed. Cir. 1984).
Veterans’ Employment Redress Laws in the Federal Civil Service 20

CHAPTER FOUR: VEOA ALLEGATIONS OF A VIOLATION OF 

PREFERENCE RIGHTS

As noted before, in addition to the exhaustion of remedies before DOL, if 

an appellant is claiming a violation of his or her preference rights, the 

appellant must assert that: (1) the appellant is preference eligible within the 

meaning of the VEOA; (2) the action(s) at issue took place on or after the 

October 30, 1998 enactment date of the VEOA; and (3) the agency violated 

the appellant’s rights under a statute or regulation relating to veterans’

preference.82 Because allegations involving actions that took place prior to 

1998 are unlikely to be decided in the future due to the statutory deadlines 

to file, we will not discuss that portion of the jurisdictional requirement in 

this report. However, Appendix C discusses the rare situations in which an 

exception to the deadlines to file may apply due to equitable tolling.

PREFERENCE ELIGIBLE WITHIN THE MEANING OF VEOA

When examining whether a person is a preference eligible, the Board looks 

at the person, not the position at issue in the case. The issue is one of 

“standing”—whether this is a person the law intended should be able to 

bring the case.83 In Wilks v. Department of the Army, the Board held that the 

term “preference eligible” is defined based upon 5 U.S.C. § 2108 and that 

VEOA redress procedures could therefore apply to a person applying for 

positions in title 10 as well as title 5. 84 In Willingham v. Department of the Navy, 

the Board noted the possibility that an agency’s regulations could potentially 

provide a preference that might meet the requirement that the appellant be a 

“preference eligible.”

85 The Board raised the issue, but held that it did not 

 

82 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Campion v. Merit 

Systems Protection Board, 326 F.3d 1210, 1213, 1215 (Fed. Cir. 2003). See 5 U.S.C. § 3330a.

83 Wilks v. Department of the Army, 91 M.S.P.R. 70, ¶ 11 (2002) (describing the issue as one of 

standing). 

84 Wilks v. Department of the Army, 91 M.S.P.R. 70, ¶ 11 (2002). An excerpt from 5 U.S.C. § 2108 is 

in Appendix A. Title 5 is the section of the law that addresses the civil service and VEOA redress is in 

title 5. Title 10 is the section of law that addresses the Armed Forces. 

85 Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶¶ 7-8 (2012). 
Veterans’ Employment Redress Laws in the Federal Civil Service 21

need to resolve the question of regulation-based preference because the 

appellant met the definition provided in 5 U.S.C. § 2108.86 A copy of section 

2108 is in Appendix A.

AGENCY VIOLATION OF RIGHTS UNDER A STATUTE OR REGULATION 

RELATING TO VETERANS’ PREFERENCE

Defining an “agency” for veterans’ preference rights cases

The VEOA statute does not define “agency” and there is nothing in that 

Act’s legislative history to illuminate the meaning of that word in the context 

of 5 U.S.C. § 3330a. 87 Unlike “preference eligible”—which focuses on the 

person—“agency” focuses on the employer. Therefore, whether a potential 

employer is an “agency” is a question that must be decided on a case-by-case 

basis. Below we provide examples of a few such cases. 

In Willingham, the issue was whether a preference eligible could seek redress 

under VEOA for non-selection by a Non-Appropriated Fund 

Instrumentality (NAFI) operating under the authority of the Department of 

the Navy. A NAFI is an organization “under the jurisdiction of the armed 

forces which is conducted for the comfort, pleasure, contentment, or 

physical or mental improvement of members of the armed forces.”

88

 For 

most personnel issues, a NAFI is not managed under civil service rules. For 

example, NAFIs have their own set of laws for whistleblowing and for 

compensation for workplace injuries.

89

 Most NAFI employees are also 

 

86 Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 8 (2012). 

87 Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 10 (2012).

88 10 U.S.C. § 1587(a)(1) (describing NAFI employees). GAO has noted that there is no official 

definition or commonly understood opinion of what constitutes a NAFI. Government Accountability 

Office, GAO-08-978SP, Appropriations Law—Vol. III, Chapter 15 at 226-27 (Sept. 2008). 

89 Civil service employees, whether in the competitive or excepted service, are protected from 

reprisal for whistleblowing activities under 5 U.S.C. § 2302(a)(2)(B) and (b)(8). However, protections from 

whistleblowing reprisal for NAFI employees are codified at 10 U.S.C. § 1587, and the Secretary of Defense

has the authority to prescribe regulations to carry out that section. 10 U.S.C. § 1587(e). With respect to 

workplace injuries, civil service employees are covered by the Federal Employees Compensation Act, while 

NAFI employees are covered by the Longshoremen’s and Harbor Workers’ Compensation Act. Lewis v. 

Department of the Air Force, 31 M.S.P.R. 328, 331 n1 (1986). Compare 5 U.S.C. § 8101(1), with 5 U.S.C. 

§ 8171(a).
Veterans’ Employment Redress Laws in the Federal Civil Service 22

“deemed” not to be employees for the purpose of laws administered by 

OPM, which comprise a majority of the laws that apply to the civil service .

90

However, the Board has long and consistently applied the well-established 

maxim that a remedial statute should be broadly construed in favor of those 

whom it was meant to protect, and that this principle particularly applies to 

statutes involving veterans’ rights and benefits. Because of the extent to 

which the particular NAFI in question in Willingham was “integrated” into 

the civilian personnel system, the Board held that it was an agency for the 

purposes of VEOA jurisdiction.91

In Sedgwick v. World Bank, an appellant similarly asserted that he had been 

denied preference rights when the employer did not apply veterans’

preference to his situation. The Board noted that neither World Bank 

employees nor recipients of World Bank funding are employed in the 

Federal civil service system. This case differed from Willingham because the 

Board held that the Bank is not a part of the United States Government, but 

is instead an international organization in which the United States and many 

other nations participate. Accordingly, it is not an “agency” under VEOA, 

and therefore VEOA redress procedures do not apply to its decisions. 92

It is possible for an employer to be an “agency” and yet have a section of 

the agency not be an employer to which VEOA applies. For example, VEOA 

redress procedures apply to the Department of Homeland Security (DHS) in 

general.93 However, as explained below, they do not apply to every segment 

of DHS.

 

90 5 U.S.C. § 2105(c). See generally title 5 of the U.S. Code.

91

 Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶¶ 14, 18 (2012).

92 Sedgwick v. World Bank, 106 M.S.P.R. 662, ¶ 9 (2007).

93 See, e.g., Jolley v. Department of Homeland Security, 105 M.S.P.R. 104, ¶¶ 5-7 (2007) (finding that 

VEOA applies to a DHS Federal Law Enforcement Training Center (FLETC)); Cruz v. Department of 

Homeland Security, 98 M.S.P.R. 492, ¶ 7 (2005) (finding jurisdiction in a VEOA appeal involving the Coast 

Guard).
Veterans’ Employment Redress Laws in the Federal Civil Service 23

In Morse v. Merit Systems Protection Board, an individual claimed that the 

Transportation Security Administration (TSA) within DHS violated his 

veterans’ preference rights when it declined to waive an age restriction for 

an air marshal position. TSA is a unique organization in many ways, 

including the fact that the rules for appointments to the Federal Aviation 

Administration (FAA) (a part of the Department of Transportation) apply to 

TSA hiring.94

The court noted that 5 U.S.C. § 3312, which requires a waiver of age 

restrictions for preference eligibles who are able to perform the duties of a 

position, applies to FAA employees, and thus to TSA employees. However, 

it also found that “section 3300a of title 5, which provides preference 

eligible veterans with rights to appeal to the Board” (VEOA redress) does 

not apply to the FAA and therefore does not apply to TSA hiring. 95

The court recognized that its holding creates a situation in which preference 

eligibles have a right, and yet at the same time are not provided the means to 

seek redress for violations of that right. The court explained that its “role is 

merely to interpret the language of the statute enacted by Congress” and not 

to judge the wisdom of the result. 96 This case highlights the important point 

that every element of jurisdiction is distinct. A situation can exist where the 

employer is a Federal agency for purposes of owing a preference right, yet 

not an agency for purposes of seeking redress of that right. 

The word “agency” can be pertinent to a series of different inquiries, 

including whether the potential employer is one to which: (1) the rules for 

veterans’ preference applies; and/or (2) the redress procedures for veterans’

preference applies. However, for cases involving the right to compete , 

 

94 Morse v. Merit Systems Protection Board, 621 F.3d 1346, 1347-48 (Fed. Cir. 2010). 

95 Morse v. Merit Systems Protection Board, 621 F.3d 1346, 1348-51 (Fed. Cir. 2010); see Belhumeur v. 

Department of Transportation, 104 M.S.P.R. 408, ¶ 8 (2007) (holding that the Board lacks jurisdiction over 

VEOA appeals from FAA employees and applicants). 

96 Morse v. Merit Systems Protection Board, 621 F.3d 1346, 1351 (Fed. Cir. 2010) (quoting Barnhart v. 

Sigmon Coal Co., 534 U.S. 438, 461 (2002)).
Veterans’ Employment Redress Laws in the Federal Civil Service 24

discussed in Chapter Five, the question of what constitutes an “agency” is an 

even more complicated issue because in addition to the questions of whether 

VEOA rights and redress procedures apply to the potential employer, how 

the agency’s “own workforce” is defined can determine whether there is a 

right to be considered for a specific vacancy. Chapter Five will discuss what 

it means to be an agency in that context.

Violation of rights under a statute or regulation relating to veterans ’ preference and 

hiring

When examining allegations of a veterans’ preference violation, it is 

necessary to determine whether preference applies to the particular situation 

in question and if so, what type of preference is due. It is possible for an 

employer to be covered by VEOA redress procedures, but for the position in 

question to not carry a veterans’ preference requirement. 

Earlier, we explained that the type of appointment authority was not 

pertinent to the question of whether the individual was a preference 

eligible.

97 Similarly, whether the person has preference is a separate question 

from whether the position is one to which preference applies. 98 Parties must 

look to the section of the jurisdictional test they are seeking to establish 

when applying case law.

As we discussed in our recent report, Veteran Hiring in the Civil Service: 

Practices and Perceptions, there can be large sections of Federal agencies or

specific positions that are exempt from the rules for veterans’ preference.99 

Below we offer examples of each. 

 

97 See Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 8 (2012); Wilks v. Department of the 

Army, 91 M.S.P.R. 70, ¶ 11 (2002). 

98 The position need not be permanent for the right to compete to apply. In Modeste v. Department 

of Veterans Affairs, 121 M.S.P.R. 254, ¶¶ 7-12 (2014), the Board held the statute clearly provides a 

preference eligible or veteran with the right to compete for vacant positions without qualification as to the 

duration of those positions.

99 See U.S. Merit Systems Protection Board, Veteran Hiring in the Civil Service: Practices and Perceptions 

(2014), available at www.mspb.gov/studies. 
Veterans’ Employment Redress Laws in the Federal Civil Service 25

There is no question that the Department of Veterans Affairs (DVA) is an 

agency for purposes of VEOA redress.

100

 However, that does not mean that 

all veterans’ preference statutes and regulations apply to all of DVA. In 

Scarnati v. Department of Veterans Affairs, the position at issue was in the 

Veterans Health Administration (VHA), an entity within DVA. The court 

held that VHA has discretionary authority to appoint health c are personnel 

under 38 U.S.C. § 7401(1) without regard to civil service requirements. 

Because there is no veterans’ preference right applicable to 38 U.S.C. 

§ 7401(1) hiring, a VEOA appeal “for an alleged violation of veterans’

preference rights is not available to those applying for § 7401(1) 

positions.”

101

 In other words, if there is no right to be violated, there can be 

no appeal of a violation of that right. Therefore, to determine whether 

VEOA jurisdiction applies to a veterans’ preference claim against DVA, it is 

necessary to determine whether the position’s appointment authority is in 

title 5 or title 38.102

Similarly, in Vores v. Department of the Army, the Board received a VEOA 

appeal for an alleged violation of preference rights and the medical position 

in question was one for which the appointment authority was located in 

title 38. The Board compared the facts in Vores with those in Scarnati and 

noted that the agency in this case was the Department of the Army rather 

than the Department of Veterans Affairs, and that a different section of 

title 38 was used in Vores. However, because the sections of title 38 used to 

appoint individuals to the medical positions were “identical in substance”

 

100 See, e.g., Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (explaining 

in a VEOA preference rights appeal that the only issue in dispute was whether DVA’s actions violated a 

statute or regulation related to veterans’ preference); Olson v. Department of Veterans Affairs, 100 M.S.P.R. 

322, ¶ 9 (2005) (finding in a VEOA appeal “that the agency violated the appellant’s rights under a statute 

relating to veterans’ preference”). 

101 Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1249 (Fed. Cir. 2003).

102 Earlier, we explained that the type of appointment authority was not pertinent to whether the 

individual had preference. See Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 8 (2012); Wilks v. 

Department of the Army, 91 M.S.P.R. 70, ¶ 11 (2002). However, whether the person has preference is a 

separate question from whether the position is one to which preference applies. 
Veterans’ Employment Redress Laws in the Federal Civil Service 26

the Board held that preference did not apply to the Army position, and thus 

the Board lacked VEOA jurisdiction.

103

Throughout the civil service, certain occupations in title 5 of the U.S Code

(such as chaplains or attorneys) are excepted from the rules for competitive 

examining.104 When a position in the title 5 excepted service is excepted due 

to the difficulties inherent in examining for it, agencies must follow the 

principle of veterans’ preference to the extent that it is “administratively 

feasible.”

105

 In Jarrard v. Department of Justice, the Federal Circuit held that 

because of the nature of attorney hiring, an agency was not obligated to 

consult OPM before passing over a veteran for a non-veteran when hiring 

attorneys, because it was not administratively feasible. 106

However, most of the other positions in the excepted service will follow 

different rules for the application of veterans’ preference.

107

 For example, 

when numerical scores are assigned in excepted service examining, then 5- or 

10-points may be added, as under competitive examining. 108 As explained in 

our recent report, Veteran Hiring in the Civil Service: Practices and Perceptions,

OPM’s regulations contain instructions for several different ways in which 

 

103 Vores v. Department of the Army, 109 M.S.P.R. 191, ¶¶ 22–23 (2008).

104 5 C.F.R. § 213.3102.

105 Jarrard v. Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012). See 5 C.F.R. § 302.101(c) 

(when a position is in the excepted service, “each agency shall follow the principle of veteran preference as 

far as administratively feasible”); see also 5 U.S.C. § 3320 (selection “for appointment to each vacancy in the 

excepted service in the executive branch” shall be “from the qualified applicants in the same manner and 

under the same conditions required for the competitive service by sections 3308-3318 of this title”).

106 Jarrard v. Department of Justice, 669 F.3d 1320, 1324-26 (Fed. Cir. 2012). See also Asatov v. Agency 

for International Development, 119 M.S.P.R. 692, ¶¶ 8-9 (2013) (holding that the position of Foreign Service 

Junior Executive Officer is covered by 22 U.S.C. § 3941, which is outside the title 5 competitive service 

rules, and therefore only requires that an agency use veterans’ preference as “an affirmative factor” in 

selection). 

107 See, e.g., Williams v. Department of the Air Force, 97 M.S.P.R. 252, ¶¶ 8-9 (2004) (explaining 

veterans’ preference ranking order under the Veterans Recruitment Appointment (VRA) authority); 38 

U.S.C. § 4214(b)(1)(C) (granting a preference in VRA appointments to veter ans entitled to disability 

compensation); 5 U.S.C. § 3320 (“The nominating or appointing authority shall select for appointment to 

each vacancy in the excepted service in the executive branch and in the government of the District of 

Columbia from the qualified applicants in the same manner and under the same conditions required for the 

competitive service by sections 3308–3318 of this title.”) See also 5 C.F.R. Part 302 (containing rules for 

veterans’ preference in the excepted service).

108 5 C.F.R. § 302.201. 
Veterans’ Employment Redress Laws in the Federal Civil Service 27

the referral list may then be ordered. 109 To determine whether a preference 

right has been violated, it first will be necessary to determine what 

preference was owed. Parties interested in excepted service positions should 

be aware that preference can take a variety of forms in the excepted service. 

Because VEOA redress applies to any statute or regulation relating to 

veterans’ preference, and veterans’ preference permeates a large section of 

civil service laws and regulations, VEOA appeals can result in litigation in 

unexpected matters, such as the validity of hiring authorities where the use 

of one authority may have implications for the disuse of another authority 

where preference operates.110

In Dean v. Department of Agriculture, the appellant filed an appeal under VEOA 

challenging the agency’s decision to hire a non-veteran under the 

Outstanding Scholar hiring authority (a noncompetitive hiring authority in 

the competitive service) instead of selecting the veteran from a competitive 

examining certificate where preference applied. In order to determine 

whether the appellant’s rights were violated, the Board examined the validity 

of the authority that had been used. The Board held that the Outstanding 

Scholar hiring authority was not valid because the President had not 

prescribed a rule authorizing Outstanding Scholar to function as an 

exception to competitive examining nor had he authorized OPM to create 

such a rule. As a result, the appellant’s preference rights had been 

violated.111

In Dean v. Office of Personnel Management, the same preference eligible veteran 

challenged an excepted service hiring authority, the Federal Career Intern 

Program (FCIP), on the basis that FCIP violated his preference rights. The 

 

109 5 C.F.R. § 302.304. 

110 An agency may choose from among different valid hiring authorities, even if that choice 

happens to be less beneficial for veterans. See Joseph v. Federal Trade Commission, 505 F.3d 1380, 1384-85 

(Fed. Cir. 2007) (explaining that an agency did not violate veterans’ preference when it used parallel 

procedures and opted to select from the merit promotion list rather than appoint a veteran from the 

competitive examining certificate).

111 Dean v. Department of Agriculture, 99 M.S.P.R. 533, ¶¶ 2, 8, 22, 31-33, 38 (2005).
Veterans’ Employment Redress Laws in the Federal Civil Service 28

Board held that FCIP was not valid because it: (1) was inconsistent with the 

civil service rules that govern placement of positions in the excepted service; 

and (2) did not require the justification of placement of positions in the 

excepted service as mandated by statute.

112

 The jurisdiction under which the 

Board reached these conclusions was Mr. Dean’s VEOA right to appeal a 

violation of his preference rights. 113

Violation of rights under a statute or regulation relating to veterans’ preference and 

reductions in force

When VEOA was enacted, it was clear that Congress intended for the 

redress procedure to apply to both recruitment actions and RIFs.

114

 The 

Board has found that it has jurisdiction over RIF-related VEOA claims. For 

example, in Buckheit v. U.S. Postal Service, the appellant was a preference 

eligible who asserted in a VEOA claim that the agency had violated his 

rights in a RIF by retaining non-preference eligibles while reassigning him. 

The appellant exhausted his remedies before DOL and filed a VEOA appeal 

with the Board.115 

The Board noted that 5 C.F.R. part 351 contains the procedures for RIFs, 

and that an employee’s rights under this part are based in part on whether 

the employee is a preference eligible. The Board held that a violation of 

those regulations may therefore constitute a violation of a regulatory

provision relating to veterans’ preference. Because the appellant was a 

preference eligible who exhausted his remedies before DOL and made a

nonfrivolous claim that the agency violated his preference rights in a RIF, 

the Board had jurisdiction over his VEOA appeal. However, on the merits, 

the Board found that the appellant failed to show that he was denied any 

 

112 Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 22 (2010). 

113 Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶¶ 13, 25 (2010).

114 See Veterans Employment Opportunities Act of 1998, S. Rep. 105 -340, at 15 (1998) (stating 

that, “while veterans as a group appear to be faring well in Federal employment, individual cases reveal 

that there is a pressing need for a uniform redress mechanism for the enforcement of veterans’ preference 

laws in both hiring and reductions-in-force decisions”).

115 Buckheit v. U.S. Postal Service, 107 M.S.P.R. 52, ¶¶ 5, 10 (2007).
Veterans’ Employment Redress Laws in the Federal Civil Service 29

preference-related rights to which he was entitled under part 351 and 

therefore denied his requested relief. 116

 

116 Buckheit v. U.S. Postal Service, 107 M.S.P.R. 52, ¶¶ 11-13, 15 (2007). See also Burger v. U.S. Postal 

Service, 88 M.S.P.R. 579, ¶ 12 (2001) (noting that an appellant had raised assertions related to a RIF for 

which the Board could potentially have VEOA jurisdiction and ordering the AJ to determine if a VEOA 

claim had been asserted). 
Veterans’ Employment Redress Laws in the Federal Civil Service 30

CHAPTER FIVE: VEOA ALLEGATIONS OF A VIOLATION OF THE RIGHT 

TO COMPETE

To establish Board jurisdiction over a right to compete appeal brought under 

VEOA, an appellant must exhaust his or her administrative remedies before 

DOL and make nonfrivolous allegations that: (1) the appellant is a veteran 

within the meaning of 5 U.S.C. § 3304(f)(1);

117 (2) the actions at issue took 

place on or after the December 10, 2004 enactment date of the VBIA; and 

(3) the agency denied him or her the opportunity to compete under merit 

promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce in violation of 5 

U.S.C. § 3304(f)(1). 118 Again, to obtain relief, the same elements must be 

proven by preponderant evidence. 

Because allegations involving actions that took place prior to 2004 are 

unlikely to be decided in the future due to the statutory deadlines to file, we 

will not discuss that portion of the jurisdictional requirement in this report. 

However, Appendix C discusses the rare situations in which an exception to 

the deadlines to file may apply due to equitable tolling.

A VETERAN WITHIN THE MEANING OF 5 U.S.C. § 3304(f)(1)

A veteran described in section 3304(f)(1) is a person who has been separated 

from the armed forces under honorable conditions after 3 years or more of 

active service.119 Such individuals “may not be denied the opportunity to 

compete for vacant positions for which the agency making the

 

117 5 U.S.C. § 3304(f)(1) is a law that states that if an agency use s merit promotion procedures for a 

vacancy, and accepts applicants from outside its own workforce, then the agency must also consider 

applications from “preference eligibles or veterans who have been separated from the armed forces under 

honorable conditions after 3 years or more of active service.”

118 Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); Styslinger v. Department of the 

Army, 105 M.S.P.R. 223, ¶ 31 (2007).

119 Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 22 (2007).
Veterans’ Employment Redress Laws in the Federal Civil Service 31

announcement will accept applications from individuals outside its own 

workforce under merit promotion procedures.”

120

 

Preference eligibles are also entitled to compete for such positions under 

section 3304(f)(1).

121

 Being a veteran and being preference eligible are two 

separate things, which can, but need not, overlap for the right to compete to 

apply.122 The ability to seek redress for a violation of the right to compete 

under section 3304(f)(1) also applies to both groups. The Board has held 

that section 3304(f)(1) “stands in some relation to, has a bearing on, 

concerns, and has a connection with veterans’ preference rights” and is, 

therefore, a statute “relating to veterans’ preference” for which VEOA 

provides a remedy. 123 Therefore, even if a preference eligible does not meet 

the definition of veteran under section 3304(f) (such as a service member

who served less than 3 years but earned preference in that period or a 

relative with derived preference),

124 relief may be granted under the 

provisions discussed in Chapter Four, involving allegations of a violation of 

veterans’ preference rights. 

AGENCY DENIAL OF THE RIGHT TO COMPETE UNDER 5 U.S.C. § 3304(f)(1)

Section 3304 provides for the right to compete for veterans and preference 

eligibles, but the circumstances under which that section gives a right to 

compete are limited. There must be one or more “vacant positions for 

 

120 5 U.S.C. § 3304(f)(1). 

121 5 U.S.C. § 3304(f)(1). 

122 See, e.g., Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 5 n.1 (2013) (explaining that 

although the appellant may not be preference eligible because he retired at the rank of Major, see 5 U.S.C. § 

2108(4)(B), he is nevertheless covered as a “veteran” because he separated from the armed forces under 

honorable conditions after 3 years or more of active service).

123 Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 16 (2006). 

124 Preference may granted “to the widow/widower or mother of a deceased veteran or to the 

spouse or mother of a disabled veteran. It is called ‘derived preference’ because it is derived from the 

military service of someone else—a veteran who is not using it for preference. When the disabled veteran 

does use the service for preference, then the spouse or mother is no longer entitled to preference. ” 

OPM’s Guide to Processing Personnel Actions, Glossary, at 35-10.
Veterans’ Employment Redress Laws in the Federal Civil Service 32

which the agency making the announcement will accept applications from 

individuals outside its own workforce under merit promotion procedures.”

125

As noted earlier, for most claims of a violation of a veterans’ preference 

right, the jurisdictional question is whether an agency is an employer covered 

by the statute. For such cases, it does not matter whether the Department 

of the Army and the Department of the Navy are part of the same agency—

only that the hiring agency is covered by the statute. However, for cases 

involving the right to compete under section 3304(f)(1), the adjudicator must 

determine: (1) if the hiring entity is an agency covered by the VEOA statute 

for redress; and (2) if the agency is accepting applications under merit 

promotion procedures from outside its own workforce. 126 It is the 

acceptance of such applications that triggers the right to consideration and 

thus MPSB jurisdiction over claims that the right was violated. 127 Therefore, 

the definition of the “agency workforce” is critical to the question of 

whether the right to be considered for the vacancy applies to the situation at 

issue.

Defining “outside its own workforce” for right to compete cases

To determine if applications are being accepted from outside the workforce , 

the adjudicator must determine the borders of the agency; only then can he 

or she determine if applications are being accepted from individuals outside 

those borders.

For most agencies it is fairly simple to identify the borders of an agency, 

which means there has not been an opportunity for the Board to address the 

specific borders of every agency for purposes of VEOA. However, the issue 

 

125 5 U.S.C. § 3304(f)(1). 

126 Brandt v. Department of the Air Force, 103 M.S.P.R. 671, ¶¶ 12-13 (2006).

127 A case may potentially be made that an agency has violated the section 3304(f)(1) right to 

compete if the agency is required to accept applications under merit promotion procedures but has 

circumvented that requirement, thereby circumventing the requirement to consider certain veterans and 

preference eligibles with those merit promotion candidates. See Morris v. Department of the Army, 113 

M.S.P.R. 304, ¶¶ 15-18 (2010) (remanding a case to determine whethe r the agency was required to use 

merit promotion procedures to fill a job for which it used the VRA hiring authority).
Veterans’ Employment Redress Laws in the Federal Civil Service 33

of defining agencies within the Department of Defense (DoD) has arisen in 

several cases and requires special treatment. 

In most cases, “agency” means the parent agency. The example that OPM 

uses in its Vet Guide to describe this concept is that the Internal Revenue 

Service (IRS) is a part of Department of the Treasury, and therefore the 

agency for purposes of defining the workforce is the Department of the 

Treasury. Thus, according to OPM, an IRS office could open a vacancy to 

employees of both IRS and the Bureau of the Public Debt without moving

beyond the agency’s workforce.128

However, the guidance in the Vet Guide becomes a problem when looking at 

DoD. DoD—and only DoD—has specific case law that states it is not a 

single agency for purposes of VEOA. 129 (OPM has requested that the Board 

reconsider its decision in the most recent case on this issue, Vassallo v. 

Department of Defense, 121 M.S.P.R. 70 (2014). The Board has yet to reach a 

decision in that case. The paragraphs below explain the current state of the 

law, which may be subject to modifications as case law evolves.) 

In Washburn v. Department of the Air Force, there was a vacancy in the United 

States Strategic Command (STRATCOM), a DoD “unified combatant 

command” that includes elements of the Air Force, Army, and Navy

(including the Marine Corps). The agency opened the vacancy to employees 

of the Air Force and individuals eligible to transfer from other DoD 

components, such as the Army, Navy, and Defense Finance and Accounting 

Services (DFAS). The question before the Board was whether this area of 

 

128 U.S. Office of Personnel Management, Vet Guide, available at http://www.opm.gov/policydata-oversight/veterans-services/vet-guide/.

129 The Board has held that the different components of DoD constitute separate agencies for 

other purposes as well, such as the requirement that a probationary period be comp leted in the same 

agency. See Francis v. Department of the Navy, 53 M.S.P.R. 545, 551 (1992) (holding that civilian service in 

the Department of the Army cannot be credited towards completing a probationary period in the 

Department of the Navy). The Federal Circuit explicitly endorsed this finding in Pervez v. Department of the 

Navy, 193 F.3d 1371, 1373-74 (Fed. Cir. 1999), in which it cited Francis when holding that the fact that 

Army and Navy “also are part of the Department of Defense is not inconsistent with their treatment as 

separate agencies for personnel purposes”).
Veterans’ Employment Redress Laws in the Federal Civil Service 34

consideration meant that the employer was accepting applications from 

outside its workforce. 130

The Board concluded that the employing agency was the Air Force, based 

upon: (1) the extensive history of how DoD was formed in 1949 out of 

separate agencies; (2) prior holdings outside the VEOA context in which the 

Board and the Federal Circuit held that DoD’s components were separate 

agencies; (3) the extent to which OPM’s regulations defining an agency for 

“general purposes of recruitment, selection, and placement” distinguished 

between the military departments; and (4) the agency’s own references to the 

employing agency as “the Department of the Air Force.” The Board 

concluded that by including employees from outside Air Force in its 

announcement, the agency had created the obligation to consider 

applications from veterans under 5 U.S.C. § 3304(f).131

This holding was reinforced in the Board’s decision in Vassallo v. Department 

of Defense, which specifically addressed the question of OPM guidance on 

VEOA. In Vassallo, the Defense Contract Management Agency (DCMA) 

announced that a position was open to “current DCMA employees” and 

“current Department of Defense employees with the Acquisition, 

Technology, and Logistics Workforce who are outside the Military 

Components.” The question before the Board was whether the inclusion of 

the individuals from within DoD but outside of DCMA meant that the 

recruiting office was accepting applications from outside its own 

workforce.132

The Board noted that OPM, in its Vet Guide, asserted that DoD was the 

parent agency for purposes of VEOA, and that if OPM’s guidance was 

correct, then the recruiting office had not moved beyond the agency’s 

workforce. However, the Board found that OPM’s Vet Guide was not 

 

130 Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 6 (2013).

131 Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶¶ 7-11 (2013).

132 Vassallo v. Department of Defense, 121 M.S.P.R. 70, ¶¶ 2-6 (2014).
Veterans’ Employment Redress Laws in the Federal Civil Service 35

persuasive and reiterated its holding from Washburn that the separate 

components within DOD are different agencies for purposes of the right to 

compete under VEOA. 133

What it means to be allowed to “compete”

Being allowed to compete is not the same thing as being selected. Rather, 

VEOA entitles a preference eligible to have all of his or her experience 

considered, including work of a similar nature that was performed in the 

military as well as any related volunteer work. 134 However, “VEOA does not 

enable veterans to be considered for positions for which they are not 

qualified.”

135

 The same minimum qualification requirements used for MPP 

candidates apply to VEOA applicants. 136

This includes the requirement that an individual meet certain criteria k nown 

as a “positive education requirement.” The education requirement is often a 

certain number of credits in a field or a certain degree.137 However, OPM 

guidance specifically recognizes that,

on rare occasions there may be applicants who may not meet 

exactly the educational requirements for a particular series, but 

who, in fact, may be demonstrably well qualified to perform 

the work in that series because of exceptional experience or a 

combination of education and experience. In such instances, a 

 

133 Vassallo v. Department of Defense, 121 M.S.P.R. 70, ¶¶ 7-11 (2014).

134 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1318-19 (Fed. Cir. 2012); 5 U.S.C. § 3311; 

5 C.F.R. § 302.302(d). The Board has not yet had occasion to look at the question of consideration of a 

non-preference eligible’s complete background.

135 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).

136 See Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 13 (2011) (holding that OPM’s 

minimum educational requirements for “scientific, technical, or professional” positions apply to VEOA 

applicants); Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000) (holding that VEOA did not 

exempt covered veterans from meeting minimum qualification standards in order to compete for vacant 

positions under merit promotion procedures).

137 See U.S. Office of Personnel Management, General Schedule Qualification Standards, available 

at http://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualificationstandards/#url=Group-Standards (explaining that to qualify for a professional or scientific position, the 

individual typically must have a 4-year degree or a “core of educational credit” such as 24 semester hours 

in the field). See also U.S. Office of Personnel Management, Classification Appeal Decision No. C-1910-

12-01, Dec. 28, 2000, at 1 (explaining the positive education requirement).
Veterans’ Employment Redress Laws in the Federal Civil Service 36

more comprehensive evaluation must be made of the 

applicant’s entire background, with full consideration given to 

both education and experience.

138

In Miller v. Federal Deposit Insurance Corporation, the appellant, a preference 

eligible, applied for a position that had a positive education requirement. 

The appellant possessed a Ph.D. in economics, but did not have the required 

24 credit hours in education or another field appropriate to the position. 139 

The appellant asserted that while he “may not meet the exact educational 

requirement for the particular series,” he felt that his experience 

compensated for that lack, as permitted by OPM’s policy. However, the 

agency concluded that he was not qualified. 140

On appeal, the AJ determined that the agency had properly considered the 

appellant’s education and experience, and denied the appellant’s request for 

relief on those grounds. On petition for review, the appellant asserted that 

as a preference eligible, he was entitled to have the Board review the quality 

of the agency’s assessment of his background. 141 

The Board held that, “although a preference-eligible is entitled to have a 

broad range of experiences considered by the agency in reviewing his 

application for a position, how the agency adjudges and weighs those 

experiences is beyond the purview of the Board’s review in a VEOA appeal.” 

In other words, the Board only reviews whether the agency met its 

obligation to consider the appellant’s background, but it has no role in 

assessing the conclusions reached by the agency as a result of that 

consideration.

142

 

138 U.S. Office of Personnel Management, General Schedule Qualification Policies, available at 

http://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualificationpolicies/#url=General-Policies. 

139 Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶¶ 2-3 (2014). 

140 Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶¶ 2-3 (2014).

141 Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶¶ 4-5 (2014).

142 Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).
Veterans’ Employment Redress Laws in the Federal Civil Service 37

Other requirements may also be placed on all applicants, including VEOA 

applicants. For example, in Clarke v. Department of the Navy, the agency 

announced a vacancy that included, as a selective factor, 143 that:

[C]andidates must have a minimum of two years of 

demonstrated professional experience in some combination of 

selecting, organizing, and providing access to rare books and 

other special collections materials in an academic or research 

library. If such experience was gained as part of a set of more 

diverse responsibilities, the amount of such special collections 

experience must have cumulated to the equivalent of at least 

two years of full-time special collections work. 144

The appellant, a veteran with preference, had more than 20 years of 

experience working with rare materials, items, and artifacts. However, 

nothing in his application package indicated that his work cumulated to the 

equivalent of at least two years of full-time special collections work. The 

Board determined that the agency had assessed the appellant’s background 

and permitted him to compete, then upheld the agency’s decision not to 

appoint the appellant because he did not have the selective factor.

145

In Dale v. Department of Veterans Affairs, the agency announced a position at 

both the GS-04 and GS-05 levels. The appellant was referred for the GS-04 

position, but not the GS-05. The agency hired a candidate from the GS-05 

referral list. On appeal, the appellant did not dispute his lack of 

qualifications at the GS-05 level, but he asserted that the agency should be 

required to hire him at the GS-04 level and then train him to become 

qualified as a GS-05. The Board held that the appellant was only entitled to 

be considered for the positions for which he qualified, and that the agency 

 

143 Selective factors are knowledge, skills, abilities, or special qualifications that are required of 

candidates, in addition to the minimum requirements in an OPM qualification standard, but are determined 

to be essential to perform the duties and responsibilities of a particular position. See U.S. Merit Systems 

Protection Board, Issues of Merit, “Selecting with Selective Factors” (Jan. 2008), available at 

www.mspb.gov/studies.

144 Clarke v. Department of the Navy, 94 M.S.P.R. 604, ¶ 8 (2003).

145 Clarke v. Department of the Navy, 94 M.S.P.R. 604, ¶¶ 8-9 (2003). See also Beyers v. Department of 

State, 120 M.S.P.R. 573 ¶ 9 (2014) (explaining in a denial of preference rights case that because the 

appellant failed a suitability determination, and suitability was a requirement of the position, the agency did 

not err in withdrawing a tentative job offer.)
Veterans’ Employment Redress Laws in the Federal Civil Service 38

met its obligation to give that consideration when it referred him at the GS-04 

level. The agency was under no obligation to select the appellant from the 

GS-04 list.146

As explained in the examples below, in addition to job-related experience, 

some—but not all—other requirements placed upon MPP candidates can 

also apply to VEOA applicants.

In Montee v. Department of the Army, the area of consideration was all U.S. 

citizens except those “ordinarily resident” in the United Kingdom (U.K.), 

where the position in question was located. The agency determined that 

because the appellant, a preference eligible, was ordinarily resident in the 

U.K., he could not be considered for the position. The agency explained 

that the status of forces agreement between the United States and the U.K. 

prohibited the appointment of such individuals. 147 The Board held that the 

agency’s determination was supported by the evidence. If the appellant was 

“ordinarily resident” in the U.K., then he was not qualified for the position 

and therefore not entitled to VEOA consideration. 148

In contrast, in Jolley v. Department of Homeland Security, the agency opened its 

area of consideration to individuals working at the Federal Law Enforcement 

Training Center (FLETC) in Glynco, Georgia, regardless of the employing 

agency. The appellant was employed in Jacksonville, Florida, but applied for 

the position. The appellant was not referred because he was not in the 

geographic area of consideration. After an extensive discussion of OPM’s 

Vet Guide and its guidance on areas of consideration, the Board held that 

OPM’s guidance could not be interpreted to permit excluding veterans from 

consideration under 5 U.S.C. § 3304(f) based on an area of consideration’s 

 

146 Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶¶ 11-13 (2006).

147 Montee v. Department of the Army, 110 M.S.P.R. 271, ¶¶ 6, 10 (2008). The Board remanded the 

case to the field office for the AJ to determine if the appellant was in fact “ordinarily resident.”

148 Montee v. Department of the Army, 110 M.S.P.R. 271, ¶ 10 (2008). 
Veterans’ Employment Redress Laws in the Federal Civil Service 39

physical restrictions because it would render meaningless the statutory 

guarantee of consideration. 149

The lesson to draw from a comparison of Montee and Jolley is that when an 

agency seeks to limit the area of consideration in a manner that would 

exclude candidates who apply under section 3304(f), the type of authority 

used to create that limit will determine whether section 3304(f) can be 

overridden.

When an agency assesses a candidate who is a veteran or preference eligible, 

it is appropriate for the agency to evaluate the individual’s past conduct and 

performance, just as it would for any other candidate.

150

 In Harellson v. U.S. 

Postal Service, the appellant was a veteran who had worked for the agency 

previously and sought reinstatement. The appellant submitted an application

for a position and management asked a subject matter expert to assess the 

appellant’s qualifications. The expert determined that there were “problems 

with the appellant’s past performance.” The agency then opted to select 

internal candidates.

151

On appeal, the Board determined that if the evidence was sufficient to 

establish that the agency had accepted the application of the appellant, an 

outside candidate, then it would also establish that the appellant, as a 

preference eligible, was entitled under section 3304(f) to compete for the 

position in question. 152 However, the Board found that it was not necessary 

to determine whether the evidence was sufficient to establish that his 

application had been accepted, because in assessing the appellant and 

 

149 Jolley v. Department of Homeland Security, 105 M.S.P.R. 104, ¶¶ 2, 7-8, 12-16, n.2 (2007).

150 See, e.g., U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 160 

(stating that a “selecting official may object to an eligible on the basis of negligence or misconduct in 

previous service/employment with the same or another agency/employer. ”)

151 Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶¶ 2, 9-10 (2010).

152 Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010).
Veterans’ Employment Redress Laws in the Federal Civil Service 40

concluding that there was a history of performance problems, the agency had

met the full scope of a section 3304(f) obligation to consider the appellant. 153

The Board noted that when the right to compete under section 3304(f) 

requires an agency to consider an application, the agency is not precluded 

from eliminating a veteran or a preference eligible from further 

consideration for a position based on his or her qualifications for the 

position. As the appellant was requesting reinstatement in a position he had 

previously held, the decision appears to imply that the quality of past 

performance may be considered a measure of qualifications.

154

Similarly, in Smyth v. U.S. Postal Service, an appellant was removed from 

further consideration for a position based upon a work history that included

a 5-day suspension for irregular attendance, two deferments of periodic step 

increases, and two letters of warning related to attendance. The appellant 

asserted that he had been denied the consideration owed to him. However, 

the Board held that: 

The appellant has identified no VEOA provision or any other 

statute or regulation which precluded the agency from finding 

that he was disqualified from further consideration for the 

Rural Carrier position because of his prior work history, and 

we are not aware of any such statute or regulation. Thus, the 

AJ properly found that the agency’s disqualification of the 

appellant on this basis did not deny him his rights under the 

VEOA.155

The right to compete under 5 U.S.C. § 3304(f) is statutory, and therefore 

cannot be superseded by Governmentwide or agency regulations. In 

Shapley v. Department of Homeland Security, the agency announced that it would 

accept applications from all U.S. citizens for a position as a Bridge Program 

Administrator. The appellant, a preference eligible, applied for the position, 

and his name was placed on a referral list, but that list was never given to 

 

153 Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010).

154 Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶¶ 2, 10-11 (2010).

155 Smyth v. U.S. Postal Service, 89 M.S.P.R. 219, ¶¶ 3, 7 (2001).
Veterans’ Employment Redress Laws in the Federal Civil Service 41

the selecting official. Instead, the selecting official was given a list 

containing the names of two priority consideration candidates and was told 

that he must make a decision on those candidates before he would be given 

a list of other candidates.

156

 

Priority consideration is permissible under a variety of circumstances, which 

can be authorized by statute, regulation, or case law.157 In Shapley, the 

priority candidates were given that status because the agency had improperly 

denied them consideration for a position on a previous occasion. The Board 

noted that priority consideration for future vacancies may generally be the 

proper remedy for individuals who were denied consideration for a position 

for which they were qualified due to an invalid employment practice and that 

the agency’s actions appeared to comport with OPM’s guidance for such 

situations. However, the Board held that OPM’s guidance could not take 

precedence over a statute, such as 5 U.S.C. § 3304(f). Therefore, when the 

agency determined that the appellant was qualified to be referred (by placing 

his name on a referral list) and yet did not refer him to the selecting official, 

it denied him the opportunity to compete guaranteed by section 3304(f). 158 

Although it has been six years since the decision in Shapley, OPM’s Delegated 

Examining Operations Handbook has not yet been updated to comport with 

Shapley.

159

 

156 Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶¶ 3, 8, 10-11 (2008).

157 For example, when an employee fully recovers from an injury after more than one year from the 

date of commencement of compensation, the employing agency must make all reasonable efforts to place, 

and accord priority to placing, the employee in his former or equivalent position. See Welby v. Department of 

Agriculture, 101 M.S.P.R. 17, ¶ 13 (2006); 5 U.S.C. § 8151(b)(2); 5 C.F.R. § 353.301(b). In another context, 

an applicant who is improperly rated ineligible for a particular position may be entitled to priority 

consideration for future vacancies. Baxter v. Office of Personnel Management, 44 M.S.P.R. 125, 133 (1990). 

Priority consideration is also a concept frequently used in settlement agreements which the Bo ard enforces. 

See, e.g., Outlaw v. Department of the Army, 99 M.S.P.R. 302, ¶¶ 2, 12–13 (2005).

158 Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶¶ 14-17 (2008).

159 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 81-82, 

170-71, available at http://www.opm.gov/policy-data-oversight/hiring-authorities/competitivehiring/deo_handbook.pdf. (According to OPM’s website, the Handbook has not been updated since May 

2007.)
Veterans’ Employment Redress Laws in the Federal Civil Service 42

What it means to be permitted to compete, and the conditions that an 

agency may place on candidates, can vary greatly by the specific situation at 

issue. Agencies and veterans could benefit from clearer guidance, 

particularly from OPM. While we recognize that OPM has been given 

extensive responsibilities and limited resources to accomplish those 

responsibilities, we recommend that OPM make a greater effort to ensure 

that its regulations, policies, and guidance, including the Delegated Examining 

Operations Handbook and the Vet Guide, are regularly checked against new 

Acts of Congress was well as developments in Federal Circuit and Board 

case law, and amended as needed. 160 OPM’s guidance should be clear, 

unambiguous, and accurate.

 

160 In a 2006 report, the Board noted that the Federal Circuit had declared in 1999 that, “to the 

extent that OPM’s regulations are contrary to the proposition that an individual is an “employee” if he or 

she meets the requirements of either 5 U.S.C. § 7511(a)(1)(C)(i) or (ii), they are invalid[,] ” and OPM had 

not yet fixed its regulations to comport with the court’s decision. U.S. Merit Systems Protection Board, 

Navigating the Probationary Period After Van Wersch and McCormick, at 18-19, available at 

www.mspb.gov/studies; see Van Wersch v. Department of Health and Human Services, 197 F.3d 1144, 1151, n.7 

(Fed. Cir. 1999). OPM amended its regulations shortly after that report was issued. See 72 Fed. Reg. 

23772, May 1, 2007.
Veterans’ Employment Redress Laws in the Federal Civil Service 43

CHAPTER SIX: VEOA RELIEF

Under VEOA, if an appellant’s rights are violated, the appellant is entitled to 

a reconstruction of the personnel action consistent with law. 161 This means 

that when the Board finds that an agency has violated an individual’s 

preference eligibility rights or the right of a veteran to compete under 

5 U.S.C. § 3304(f), the Board will order the agency to reconstruct the 

personnel action in question, while following the laws or regulations that 

were not followed the first time.

162

To properly reconstruct a selection action, the agency must conduct an actual

selection process based on the same circumstances surrounding the original 

faulty selection.

163 A hypothetical process is not sufficient.164 This means 

that the agency must take any original selectee out of the position,

165 conduct 

and evaluate interviews so that they are meaningfully comparable with the 

original selectee’s interview, and fill the same number of vacancies as 

before.166

While an appellant may be entitled to a reconstruction of the selection action

in which the laws and regulations are followed, an appellant is not entitled to a 

 

161 Lodge v. Department of the Treasury, 109 M.S.P.R. 614, ¶ 7 (2008) (veterans’ preference); Washburn 

v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 14 (2013) (right to compete). The Board has yet to find a 

veterans’ preference violation in a RIF case brought under VEOA, perhaps because selection actions are 

far more common than RIF actions, and thus there have not been as many VEOA RIF appeals.

162 Lodge v. Department of the Treasury, 109 M.S.P.R. 614, ¶ 7 (2008) (veterans’ preference); Washburn 

v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 14 (2013) (right to compete). 

163 Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 14 (2013); Phillips v. Department of the

Navy, 114 M.S.P.R. 19, ¶¶ 15–19 (2010).

164 Weed v. Social Security Administration, 110 M.S.P.R. 468, ¶ 14 (2009).

165 The Board has held that while the selectee must be removed from the position, there is no 

requirement that the selectee be removed from Fede ral service as a whole. See Modeste v. Department of 

Veterans Affairs, 121 M.S.P.R. 254, ¶ 14 (2014); Weed v. Social Security Administration, 110 M.S.P.R. 468, ¶ 13 

(2009).

166 Russell v. Department of Health and Human Services, 120 M.S.P.R. 42, ¶ 13 (2013).
Veterans’ Employment Redress Laws in the Federal Civil Service 44

position with the agency and the Board will not order a retroactive appointment as a 

remedy for a VEOA violation.

167

Although an appellant is not automatically entitled to be appointed, if the 

reconstructed selection process results in the appellant’s selection, he or she 

may be entitled to an award of compensation under VEOA for any loss of 

wages or benefits that resulted from the agency’s violation of his or her 

rights.168 

For example, in Marshall v. Department of Health and Human Services, the 

appellant applied for a GS-13 position with the agency. By the time the case 

reached the Federal Circuit, it was undisputed that the agency had violated 

the appellant’s preference rights during selection and that the appellant 

would have been selected if not for the violation. However, in the 

meantime, the appellant had accepted a lower-graded position with the U.S. 

Coast Guard. The Federal Circuit held that the appellant was entitled to the 

difference in wages and benefits between the Federal position he held and 

the position he should have been offered. This entitlement ran from the 

date of the appointment that had violated his rights to the date that he was 

either: (1) placed in the position he should have been put in originally; or 

(2) the date he declined such a placement. 169

The VEOA statute provides for an award of lost wages or benefits for an 

ordinary violation and an additional amount, equal to the award of lost 

wages or benefits, for a willful violation of the statute.

170

 For purposes of 

 

167 See Gonzalez v. Department of Homeland Security, 110 M.S.P.R. 567, ¶ 6 (2009); Lodge v. Department of 

the Treasury, 109 M.S.P.R. 614, ¶ 7 (2008). However, “[w]hen an agency violates a veteran’s preference 

rights during selection in the competitive service and when it is undisputed that the agency would have 

selected the veteran for the position sought but for the violation, [5 U.S.C.] § 3330c requires the agency to 

offer the same—or, as near as possible, a substantially equivalent—position to the veteran.” Marshall v. 

Department of Health and Human Services, 587 F.3d 1310, 1318 (Fed. Cir. 2009).

168 See Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶ 18 (2008); 5 U.S.C. § 3330c(a).

169 Marshall v. Department of Health and Human Services, 587 F.3d 1310, 1312, 1317-18 (Fed. Cir. 

2009). 

170 Williams v. Department of the Air Force, 116 M.S.P.R. 245, ¶ 11 (2011). An award for “lost wages”

in the context of a VEOA appeal does not have the same meaning as the term of art “back pay” under the 
Veterans’ Employment Redress Laws in the Federal Civil Service 45

VEOA, the term “willful” means that the employer either knew or showed 

reckless disregard for the matter of whether its conduct was prohibited. 171

Relief is an important component of a VEOA case. As discussed earlier, an 

appeal may be dismissed for a failure to state a claim for which relief could 

be granted.172 A situation can also evolve in which a case becomes “moot”

because there is no relief left for the Board to grant. Mootness can arise at 

any stage of the proceedings. 173 The dismissal of an appeal as moot amounts 

to a dismissal for lack of jurisdiction. 174 However, for an appeal to be found 

moot, the appellant must have received all of the relief that he or she could 

have received if he or she had prevailed on the merits. 175 Unsatisfactory relief 

can render a case moot if there is no more relief to be granted. But, partial

relief does not create mootness if there is more relief that may be 

available.176

The concept of “dismissal as moot,” also called the “mootness doctrine,”

arises from the constitutional requirement that an Article III court cannot 

render a decision unless there is a “case or controversy” in which the parties 

have a recognizable interest in the outcome. It prevents courts from issuing 

advisory opinions. Because the Board is prohibited from issuing advisory

 

Back Pay Act, because VEOA appeals are not governed by the Back Pay Act. Williams v. Department of the 

Air Force, 116 M.S.P.R. 245, ¶ 8, n.4 (2011).

171 Williams v. Department of the Air Force, 108 M.S.P.R. 567, ¶ 12 (2008).

172 See Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶¶ 8-11 (2008); Cruz v. Department of 

Homeland Security, 98 M.S.P.R. 492, ¶ 6 (2005).

173 Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶ 12 (2013).

174 Haskins v. Department of the Navy, 106 M.S.P.R. 616, ¶ 17 (2007).

175 Haskins v. Department of the Navy, 106 M.S.P.R. 616, ¶ 17 (2007). See, e.g., Wheeler v. Department of 

Defense, 113 M.S.P.R. 376, ¶ 18 (2010) (dismissing a VEOA appeal as moot because the appellant had 

already obtained all the relief he could have obtained from the Board if he had prevailed in his appeal).

176 Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 12 (2010); see Modeste v. Department of Veterans 

Affairs, 121 M.S.P.R. 254, ¶ 13 (2014) (holding that the appeal could not be rendered moot because t he 

appellant had not yet received all of the relief to which he may have been entitled). 
Veterans’ Employment Redress Laws in the Federal Civil Service 46

opinions, it recognizes the mootness doctrine, even though the Board is not 

a court operating under Article III of the U.S. Constitution. 177

Because mootness is considered a jurisdictional issue in Article III courts, 

the Board has issued VEOA decisions stating that the Board has found a 

case moot because no further relief may be granted, and is therefore 

dismissing the case for lack of jurisdiction.

178 We recognize this may be 

confusing, since the Board has also held that stating a claim for which relief 

may be granted goes to the merits and not jurisdiction.

179

 Rather than 

pondering the relationship between relief and merits or jurisdiction, readers 

should focus on the central point—the ability of the Board to grant relief is 

a necessary component for a case to proceed. 

 

177 Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 11 (2010). An “Article III court” refers to 

the judiciary as it is established in Article III of the U.S. Constitution. MSPB is an administrative body in 

the executive branch of the Government, although its decisions are reviewable by an Article III court—the 

Federal Circuit. 

178 See, e.g., Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 18 (2010) (dismissing a VEOA 

appeal as moot because the appellant had already obtained all the relief he could have obtained from the 

Board if his appeal had prevailed). 

179 Compare Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 18 (2010) (dismissing VEOA case 

for lack of jurisdiction because there was no further effectual relief that could be granted and thus the case 

was moot), with Alford v. Department of Defense, 113 M.S.P.R. 263 ¶¶ 11-12 (2010) (holding that the AJ 

should not have dismissed the VEOA case for lack of jurisdiction but rather should have dismissed it for 

failure to state a claim for which relief may be granted).
Veterans’ Employment Redress Laws in the Federal Civil Service 47

CHAPTER SEVEN: USERRA—COVERED ACTIONS

USERRA provides broad protections to ensure that those who serve in 

uniform are not discriminated against in employment matters and to 

eliminate or minimize any disadvantage to their civilian careers resulting 

from uniformed service.180 The statute provides that:

A person who is a member of, applies to be a member of, 

performs, has performed, applies to perform, or has an 

obligation to perform service in a uniformed service shall not 

be denied initial employment, reemployment, retention in 

employment, promotion, or any benefit of employment by an 

employer on the basis of that membership, application for 

membership, performance of service, application for service, 

or obligation.181

Because of other Federal laws pertaining to the employment of veterans, 

many of these situations can overlap with other appeal rights. For example, 

an employee (regardless of veterans’ status) who is removed, demoted, or 

suspended for more than 14 days can challenge the underlying action by 

asserting that the charges are untrue, the penalty is unreasonable, or that 

procedures were not followed. 182 Similarly, as described in the VEOA 

chapters, a veteran who is not selected may assert that his or her preference 

rights were denied or that he or she was denied an opportunity to be 

considered. However, veterans are not usually accorded any preference 

when seeking promotions, and decisions to grant or deny leave are usually 

 

180 38 U.S.C. § 4301. This report does not contain a copy of the USERRA statute because of its 

length. A copy of the statute can be found on DOL’s website at 

http://www.dol.gov/vets/usc/vpl/usc38.htm.

181 38 U.S.C. § 4311(a); but see Lourens v. Merit Systems Protection Board , 193 F.3d 1369, 1371 (Fed. 

Cir. 1999) (holding that the Board did not have USERRA jurisdiction over claims by a widow with derived 

preference eligibility when the widow had not been a member of—or applicant to—a uniformed service).

182 USERRA can provide MSPB jurisdiction over suspensions that are too brief to meet the 

requirements for MSPB’s adverse action jurisdiction (14 days or less). See, e.g., Johnson v. U.S. Postal Service, 

85 M.S.P.R. 1, ¶ 11 (1999), in which the Board found USERRA jurisdiction over a 7 -day suspension when 

the appellant alleged that he was denied leave and instead was charged with absence without leave (AWOL) 

for periods during which he served on Reserve duty, leading to a suspension for AWOL. 
Veterans’ Employment Redress Laws in the Federal Civil Service 48

not appealable, so claims related to promotion within the agency or leave use 

are more likely to stand alone on the alleged USERRA violation. 183 

USERRA cases are typically described as falling under one of two basic 

categories that will be discussed in this chapter: 

Anti-discrimination: Prohibiting employers from denying employment, 

promotion, or “any benefit of employment” to anyone based on their 

uniformed service. It also protects against reprisal for participating in a 

USERRA-related activity, such as filing a USERRA claim or testifying on 

behalf of an individual in a USERRA case.

184

Reemployment: Entitling employees absent from their positions due to 

uniformed service to prompt reemployment in their former or comparable 

positions, plus the additional seniority and benefits that they would have had 

if they had remained continuously employed (called the “escalator 

principle”).

185

ANTI-DISCRIMINATION SITUATIONS

USERRA anti-discrimination cases brought before the Board can run a wide 

gamut, but many tend to fall into one of the following categories:

 Adverse actions (such as removals, suspensions, or demotions) in 

which the appellant alleges the agency acted out of animus towards 

the person for serving in the military (such as a desire to remove a 

person who is frequently absent from work to perform uniformed 

duty).

186

 

183 See Hamner v. Department of Housing and Urban Development, 93 M.S.P.R. 84, ¶ 20 (2002) 

(explaining that veterans are not usually accorded any preference when seeking promotions). But see 

Holloway v. Department of Interior, 82 M.S.P.R. 435, ¶ 15 (1999) (holding that the Board had jurisdiction over 

a Whistleblower Protection Act claim that the appellant was denied leave in retaliation for perceived 

whistleblowing activity). 

184 38 U.S.C. § 4311.

185 38 U.S.C. §§ 4312-18.

186 See, e.g., Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368-69 (Fed. Cir. 2009) (holding that the 

agency could not remove the appellant for excessive use of military leave). 
Veterans’ Employment Redress Laws in the Federal Civil Service 49

 Non-selection decisions (including promotions), where it is alleged

that the agency did not want to hire a person who might be absent in 

the future for military duty (such as individuals in the reserves or 

National Guard).187

 Non-selection decisions based on a desire to avoid veterans’

preference rules.

188

 Denial or improper charging of leave to perform uniformed service 

duties.189

An appellant also may assert discrimination based on the specific nature of 

the service he or she provided to the military. For example, in Beck v. 

Department of the Navy, the appellant had been an enlisted person in the Navy 

and asserted that he was passed over for a GS-13 position because the 

deciding official was “dismissive” of the appellant after learning that he had 

been an enlisted man and not an officer. The Board held that if there had 

been discrimination on the basis of the appellant’s military rank, then it 

would qualify as discrimination based on service under USERRA. 190

However, service-related medical conditions, whether physical or 

psychological, are unlikely to successfully serve as the basis for a USERRA 

case. The Board has held that if a medical condition is the result of military 

service, discrimination on the basis of that medical conditional alone does

 

187 See, e.g., Becwar v. Department of Labor, 115 M.S.P.R. 689, ¶¶ 6-7 (2011) (finding jurisdiction over 

the appellant’s assertions that the agency’s decision not to promote her was motivated by the agency ’s 

discontent with her absences from work for military duty); Isabella v. Department of State, 106 M.S.P.R. 333, 

¶¶ 9-10 (2007) (finding jurisdiction over the appellant’s claim that the agency was willing to process his 

application when it thought he had separated from the military, but stopped processing when it learned he 

was still a reservist).

188 See, e.g., Williams v. Department of the Navy, 94 M.S.P.R. 206, ¶ 8 (2003) (finding jurisdiction over 

the appellant’s assertion that the agency did not want to hire veterans be cause they have a higher retention 

standing in a RIF). 

189 While military leave cases have become less common, several years ago there was a 

misunderstanding that caused some individuals to be charged annual or other leave for periods that should 

have been covered by military leave. This error by agencies was appealable under USERRA and led to a 

multitude of cases to seek correction of leave records. These cases are known as Butterbaugh cases, after 

the lead case identifying the error. Butterbaugh v. Department of Justice, 336 F.3d 1332, 1333–34 (Fed. Cir. 

2003); see Duncan v. Department of the Air Force, 115 M.S.P.R. 275, ¶ 6 (2010). 

190 Beck v. Department of the Navy, 120 M.S.P.R. 504, ¶¶ 5, 9-10 (2014).
Veterans’ Employment Redress Laws in the Federal Civil Service 50

not support a USERRA claim. The discrimination must be based on the 

actual service, not on injuries or disabilities incidental to it. 191

REEMPLOYMENT SITUATIONS

USERRA provides that an employee whose “absence is necessitated by 

reason of service in the uniformed services” will be entitled to 

reemployment if: (1) he has given advance notice of such service to his 

employer; (2) the cumulative absence does not exceed 5 years; and (3) he

either reports for employment or requests reemployment after completion of 

the uniformed service.192

As shown in the table below, the time period in which the individual must 

report for employment or reemployment depends on the length of the 

period of absence due to military service. Additional time is provided for an 

individual who is unavailable due to an injury or illness related to uniformed 

service.193

 

191 McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998) (holding that the fact that the 

appellant incurred a back injury while performing military service was incidental to her claim of disability 

discrimination). See also Holmes v. Department of Justice, 498 F. App’x 993, 995 (Fed. Cir. 2013) (Table) 

(agreeing with the holding of McBride). But see Davison v. Department of Veterans Affairs, 115 M.S.P.R. 640, 

¶¶ 14-15 (2011) (finding that a case could be brought under USERRA when the appellant asserted the 

discrimination was based on his use of leave without pay for a medical condition where such leave was 

only available to service members).

192 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶ 12 (2009); see 38 U.S.C. § 4312(a), (e). 

Advanced notice of departure for service is not required if it is impossible, unreasonable, or precluded by 

military necessity. 38 U.S.C. § 4312(b). 

193 38 U.S.C. § 4312(e). 
Veterans’ Employment Redress Laws in the Federal Civil Service 51

Absence Obligation

Less than 31 days Return to work no later than the beginning of 

the first full regularly scheduled work period on 

the first full calendar day following the 

completion of the period of service (provided 

that this allows 8 hours to rest after returning 

home from duty).

Between 31 and 180 days Submit an application for reemployment no later 

than 14 days after the completion of the period 

of service.

Over 180 days Submit an application for reemployment with 

the employer no later than 90 days after the 

completion of the period of service.

USERRA reemployment cases brought before the Board can also run a wide 

gamut, but many allegations tend to fall into one of the following categories:

 That a civilian position was not abandoned and that the appellant is 

therefore entitled to be reemployed. 194

 That the appellant would have been in a higher-graded position if not 

for the service and was therefore not returned to the correct 

position.195

 That the new position is not of a “like status” to the position held 

prior to a departure for military service. 196

Below we explain each of these concepts. 

 

194 See, e.g., Kiszka v. Office of Personnel Management, 372 F.3d 1301, 1307-08 (Fed. Cir. 2004) (finding 

that a resignation is not required for the adjudicator to find that an appellant abandoned his civilian career 

in favor of a military career and therefore was not entitled to reemployment). 

195 See, e.g., Leite v. Department of the Army, 109 M.S.P.R. 229, ¶¶ 2-4 (2008) (alleging that the 

appellant would have been promoted in her civilian position during the period in which she was away in 

military service).

196 See, e.g., Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶¶ 2, 8, 22-23, 26 (2011).
Veterans’ Employment Redress Laws in the Federal Civil Service 52

Abandonment

Abandonment cases often arise in the context of retirement annuities 

because of the way in which certain military service may be treated when 

determining eligibility for a civilian service annuity.

197

 However, the issue 

can arise in any reemployment case, because if an individual has abandoned 

his or her civilian career, the agency is under no obligation to reemploy the 

person.198 

A resignation is but one way to determine if the position has been 

abandoned.199 An appellant’s actions can lead an employer—and the 

adjudicator—to infer that the individual has abandoned his civilian job in 

favor of a career in the military. 200 While not dispositive, a strong indicator 

can be whether the appellant asked for leave without pay or a separation to 

perform uniformed service.

201

 Similarly, an appellant’s expressed intent, such 

as statements that he is still employed by the agency, can be an important 

factor in determining abandonment. 202 While USERRA does not have a 

deadline to file a complaint, the passage of an extensive period of time after 

the appellant’s removal with no challenge by the appellant can also indicate 

 

197 See, e.g., Lindsley v. Office of Personnel Management, 96 M.S.P.R. 259, ¶¶ 8, 19 (2004) (holding that 

the appellant was not entitled to have his military time credited towards a civil service annuity because he 

had abandoned his civilian career).

198 Corkery v. Office of Personnel Management, 94 M.S.P.R. 118, ¶ 15 (2003).

199 See Woodman v. Office of Personnel Management, 258 F.3d 1372, 1378-79 (Fed. Cir. 2001) (holding 

that the lack of a resignation by the appellant is not determinative of whether he abandoned his civilian 

career for one in the military). 

200 See Erickson v. U.S. Postal Service, 636 F.3d 1353, 1356-57 (Fed. Cir. 2011) (discussing Woodman v. 

Office of Personnel Management, 258 F.3d 1372 (Fed. Cir. 2001)).

201 See Erickson v. U.S. Postal Service, 636 F.3d 1353, 1356-57 (Fed. Cir. 2011) (discussing Moravec v. 

Office of Personnel Management, 393 F.3d 1263 (Fed. Cir. 2004) and Dowling v. Office of Personnel Management, 

393 F.3d 1260 (Fed. Cir. 2004)).

202 See Erickson v. U.S. Postal Service, 636 F.3d 1353, 1359 (Fed. Cir. 2011) (finding pertinent the 

appellant’s unrebutted testimony that he had not resigned because he believed he was still employed by the 

agency). 
Veterans’ Employment Redress Laws in the Federal Civil Service 53

abandonment.203 The adjudicator must evaluate the totality of the evidence 

and weigh it in order to determine if abandonment occurred. 204

The escalator principle

Upon return to civilian duty, the individual is entitled to return to the place 

the person would have been if not for the military service. 205 This is called 

the “escalator principle” because the individual “does not step back on the 

seniority escalator at the point he stepped off. He steps back on at the 

precise point he would have occupied had he kept his position 

continuously[.]”

206

In the report accompanying the bill, Congress described the escalator 

principle’s applicability to USERRA as follows: 

[W]hatever position the returning serviceperson would have 

attained, with reasonable certainty, but for the absence for 

military service, would be the position guaranteed upon return. 

This could be the same position or a higher, lower, or lateral 

(e.g., a transfer) position or even possibly layoff or severance 

status depending on what has happened to the employment 

situation in the servicemember’s absence.207

While the escalator principle is a crucial component of USERRA, it can be 

difficult to predict what would have occurred if an individual had not left his 

or her civilian job to perform uniformed service, particularly to the degree of 

being “reasonably certain.” In cases before 2014, the Board repeatedly held 

that advancement is not reasonably certain if it is dependent on the exercise 

of “a discriminating managerial choice” and the fitness and ability of the 

 

203 See Erickson v. U.S. Postal Service, 636 F.3d 1353, 1358-59 (Fed. Cir. 2011) (finding that the 

appellant’s failure to contest his removal for a period of six years was an indication of abandonment, 

although it was not dispositive).

204 See Erickson v. U.S. Postal Service, 636 F.3d 1353, 1356-59 (Fed. Cir. 2011) (weighing several 

factors before concluding that there was not sufficient evidence of abandonment). 

205 Leite v. Department of the Army, 109 M.S.P.R. 229, ¶ 10 (2008). 

206 Fishgold v. Sullivan Drydock & Repair Corp ., 328 U.S. 275, 284-85 (1946).

207 H. Rep. 103-65, at 30-31 (1994 U.S.C.C.A.N. 2463-64) (internal citations omitted).
Veterans’ Employment Redress Laws in the Federal Civil Service 54

employee.208 However, in a 2014 decision, Rassenfoss v. Department of the 

Treasury, the Board overruled this line of cases and began using a different 

test to determine whether the individual was entitled to the escalation that 

he or she sought.

209

 The next few paragraphs discuss an older case, Leite v. 

Department of the Army, followed by a discussion of Rassenfoss to highlight the 

differences in the Board’s approach to the question of reasonable certainty.

In Leite, the appellant was away on military duty when the agency abolished 

her GS-13 position and established a GS-14 position for which she

competed but was not selected. When she returned from duty, the agency 

informed the appellant she was entitled to a GS-13 position similar to the 

position that she had left. The appellant asserted she was entitled to a 

GS-14 position. Ultimately, the agency placed her in a position in a different 

pay system that was equivalent to the GS-13 position.210

In her USERRA claim, the appellant asserted that other individuals in the 

organization had been given temporary duties above their pay levels and 

then promoted into those higher-level positions. She posited that in light of 

her past exemplary performance it was likely that if not for her military 

service, she also would have been given greater responsibilities on a 

temporary basis and then been permanently selected for a temporarily held 

position. The Board held that while it could not “rule out the possibility”

that the appellant might have been promoted if not for her military service, 

it was not “reasonably certain” that this chain of events would have 

occurred, and therefore the appellant was not entitled to the promotion 

under USERRA.211

 

208 See West v. Department of the Air Force, 117 M.S.P.R. 24, ¶ 8 (2011); Leite v. Department of the Army, 

109 M.S.P.R. 229, ¶ 10 (2008). 

209 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 13 (2014). 

210 Leite v. Department of the Army, 109 M.S.P.R. 229, ¶¶ 2-4 (2008). 

211 Leite v. Department of the Army, 109 M.S.P.R. 229, ¶¶ 12-14 (2008). See also West v. Department of the 

Air Force, 117 M.S.P.R. 24 ¶ 9 (2011) (holding that there is no basis for requiring an agency to consider an 

absent employee for promotion as though she had the experience and skills she might have obtained if she 

had continued her civilian employment). 
Veterans’ Employment Redress Laws in the Federal Civil Service 55

However, in Rassenfoss v. Department of the Treasury, the Board expressly 

overruled the approach used in Leite.

212

 In Rassenfoss, the question was 

whether the appellant would have received a Quality Step Increase (QSI) for 

outstanding performance if he had not been away from his civilian work to 

serve in the military.

213

 As stated in Member Robbins’ dissenting opinion in 

Rassenfoss, under OPM’s regulations, a QSI “shall not be required” but rather 

may be given “consistent with performance-related criteria in a performance 

appraisal program.”

214

 Thus, the awarding of a QSI has traditionally been

dependent on management discretion.

In the Rassenfoss majority opinion, the Board noted that it had historically 

distinguished between benefits that are dependent on fitness, ability, or the 

exercise of managerial discretion and those that are based on seniority, 

rewards for length of service, or that would have accrued through the mere 

passage of time. The former category typically did not benefit from the 

escalator principle because it was too difficult to be reasonably certain 

whether a discretionary authority would have been exercised. 215

However, in Rassenfoss, the Board also noted that DOL, which has the 

authority to promulgate pertinent regulations for non-Federal employment,

had rejected the discretionary/nondiscretionary management decision 

distinction undergirding the Board’s approach in earlier cases. Rather, DOL 

directed employers to adopt a case-by-case approach to determine whether a 

benefit was reasonably certain to have accrued absent military service. 216 The 

Board concluded that Congress would not have wanted an outcome in which 

Federal employees are afforded less protection than state or private sector 

employees. The Board therefore overruled its earlier holdings that had 

 

212 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 13 (2014).

213 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 3 (2014). 

214 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, 523 (2014) (Member Robbins, 

dissenting).

215 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 12 (2014). 

216 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶¶ 12-13 (2014). 
Veterans’ Employment Redress Laws in the Federal Civil Service 56

assumed that discretionary personnel actions inherently fail the reasonable 

certainty test and instructed that DOL’s approach be used instead.

217

 

Applying DOL’s regulations, the Board explained that relevant factors to 

consider when assessing whether it is reasonably certain that an employee 

would have received a discretionary action such as a QSI or promotion can

include: (1) the returning employee’s work history; (2) his or her history of 

merit increases; and (3) the work and pay history of employees in the same 

or similar positions.

218

 The Board remanded Rassenfoss to the regional office 

to further develop the record, particularly the history of others in the same 

or similar positions as the appellant. 219

Positions of “like status”

When an individual returns from uniformed service, an agency is obligated 

to reemploy the appellant in a position of like status; however, the new 

position is not required to have the same duties as the old position.

220

 Status 

means particular attributes of a specific position, including the “rank or 

responsibility of the position, its duties, working conditions, pay, tenure, and 

seniority.”

221

 In comparing two positions, the Board looks beyond the title 

and grade of the positions involved and compares the scope of actual duties 

and responsibilities of the new position with those of the former position. 222

For example, in Crawford v. Department of the Army, the Board noted that the 

appellant’s position had been abolished while he was away performing 

uniformed service, and therefore it was plausible that a position with the 

exact same duties no longer existed. For the old and new positions, the

 

217 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 13 (2014). The Board noted that 

OPM has the authority to promulgate USERRA regulations for Federal employment and stated that such 

regulations should be read in a manner “consistent with” those issued by DOL.

218 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 13 (2014).

219 Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 17 (2014). 

220 Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶¶ 10, 22 (2011); 38 U.S.C. § 4313(a)(2). 

221 Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶ 10 (2011) (quoting 5 C.F.R. § 353.102).

222 Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶ 19 (2011).
Veterans’ Employment Redress Laws in the Federal Civil Service 57

Board weighed the factors of the duties, pay, tenure, seniority, working 

conditions, and level of rank and responsibility. The Board found that 

nearly all of these factors were the same in both positions; only the duties 

differed. The Board held that despite the difference in duties, under the 

circumstances the agency had met its obligation to place the appellant in a 

position of like status to his prior position. 223

In contrast, in Nichols v. Department of Veterans Affairs, when the appellant 

returned from military service, the agency asserted that, while the appellant’s 

old position had been filled, it had created a “like” position for him. The 

Federal Circuit held that while the agency’s decision to fill the job in the 

appellant’s absence did not alter the appellant’s entitlement to his old job, 

the agency had some discretion to find an equivalent position. However, to 

be equivalent, the position must be of equal status. The court held that “[i]t 

goes without saying that when one starts out as the boss, but is placed in a 

position subordinate to the replacement boss, and other new bosses, there is 

incontestably a loss of authority, and accordingly a diminished status. ” 

Because the new job had less status, it could not be considered equivalent. 

The agency was ordered to return the appellant to his old job, even though it 

meant displacing the new incumbent.224 

In Heidel v. U.S. Postal Service, a returning service member was given a 

position with the same title and grade as his pre-service position. However, 

in the old position, the appellant performed several tasks, interacted with his 

coworkers and supervisors, trained new employees, and was exposed to the 

workplace decision-making process so as to better prepare him to compete 

to be a supervisor one day. In the new position, the appellant sat alone all 

day doing one thing, namely, handling and repairing damaged pieces of mail. 

The Board held that although the two positions were in the same job family

 

223 Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶¶ 2, 8, 22-23, 26 (2011).

224 Nichols v. Department of Veterans Affairs, 11 F.3d 160, 163-64 (Fed. Cir. 1993). Nichols was 

adjudicated prior to the enactment of USERRA. However, because the concept of “like status” was a part 

of the law prior to USERRA, the Federal Circuit has continued to apply Nichols to more recent cases, such 

as Crawford v. Department of the Army, 718 F.3d 1361, 1366 (Fed. Cir. 2013).
Veterans’ Employment Redress Laws in the Federal Civil Service 58

and shared the same grade, their duties and responsibilities were not of “like 

status.”

225

An agency cannot withhold a “like” position based on an assertion that the 

individual is not initially qualified to perform in the new position. The 

agency must make “reasonable efforts” to help the person become 

qualified.226

 

225 Heidel v. U.S. Postal Service, 69 M.S.P.R. 511, 513, 518 (1996).

226 Crawford v. Department of the Army, 117 M.S.P.R. 38, ¶ 11 (2011).
Veterans’ Employment Redress Laws in the Federal Civil Service 59

CHAPTER EIGHT: USERRA—ADJUDICATING CLAIMS

As explained in this chapter, USERRA differs from VEOA in many respects, 

including: the roles of DOL and OSC; how to prove a claim; which party 

has the burden of proof (which differs based on the type of USERRA claim);

the right to a hearing; deadlines (or lack thereof); and who may be a covered 

employer. Appendix B contains a table highlighting some of the significant 

differences between USERRA and VEOA.

ESTABLISHING USERRA JURISDICTION

To establish Board jurisdiction over a USERRA discrimination appeal, an 

appellant must nonfrivolously allege that: (1) he performed duty or has an 

obligation to perform duty in a uniformed service of the United States; (2) 

the agency denied him initial employment, 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. 227 

For USERRA cases in which discrimination is not alleged, the Board 

typically describes its jurisdiction without phrasing it as a jurisdictional test. 

For example, in Welshans v. U.S. Postal Service, the Board simply stated that, 

“[u]nder USERRA, the Board has jurisdiction over an appellant’s claim that 

he was denied ‘any benefit of employment’ on the basis of his membership 

in the uniformed services.”

228

 In O’Bleness v. Department of the Air Force, a case 

involving military leave, the Board described the claims being made and then 

 

227 Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013); Williams v. Department of the 

Air Force, 97 M.S.P.R. 252, ¶ 10 (2004). While the jurisdictional standard does not mention the nature of 

an appellant’s discharge, the Board has held that to have standing, the individual cannot be a person who 

has left uniformed service under other than honorable conditions. “[S]tanding is a jurisdictional 

requirement that must be met before the jurisdictional t est [ ] is ever applied.” Thus, the Board will not 

find USERRA jurisdiction for an individual who was discharged under other than honorable conditions. 

Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 16 (2008).

228 Welshans v. U.S. Postal Service, 107 M.S.P.R. 110, ¶ 4 (2007).
Veterans’ Employment Redress Laws in the Federal Civil Service 60

stated that, “[t]he Board’s jurisdiction extends to claims such as those raised 

here[.]”

229

As with a VEOA claim, a claim under USERRA will be broadly and liberally 

construed in determining whether it is nonfrivolous. 230 Also in common 

with a VEOA claim, the weakness of the assertions in support of a USERRA 

claim is not a basis to dismiss the USERRA appeal for lack of jurisdiction; 

rather, if the appellant fails to develop his contentions, his USERRA claim 

will be denied on the merits. 231

ESTABLISHING MERITS OF A USERRA CASE AND BURDENS OF PROOF

Under USERRA, there are two crucial differences between proving the 

merits of a discrimination claim and the merits of a reemployment claim:

1. Burden of Proof: In a discrimination case the appellant must prove the 

merits of the case by preponderant evidence. If that burden is met, the 

agency may avoid relief by showing by preponderant evidence that it would 

have taken the same action even in the absence of the improper 

motivation.232 In a reemployment case the agency bears the burden of proving, 

by preponderant evidence, that it met its statutory obligations to reemploy 

the individual with the appropriate level of career advancement and 

benefits.233

2. Motive: In a discrimination case, the appellant must prove the agency’s 

motivation; in a reemployment rights claim, the individual does not have to 

 

229 O’Bleness v. Department of the Air Force, 106 M.S.P.R. 457, ¶ 9 (2007).

230 Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013).

231 Swidecki v. Department of Commerce, 113 M.S.P.R. 168, ¶ 6 (2010); Randall v. Department of Justice, 

105 M.S.P.R. 524, ¶ 5 (2007). As explained earlier, preponderance of the evidence means that the evidence 

shows that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).

232 Burroughs v. Department of the Army, 120 M.S.P.R. 392, ¶ 5 (2013); Strausbaugh v. Government Printing 

Office, 117 M.S.P.R. 566, ¶ 11 (2012); see 38 U.S.C. § 4311(c). 

233 Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005) (explaining that the standard for 

reemployment cases is derived from 5 U.S.C. § 7701(c)(2)(B)). See 5 U.S.C. § 7701(c)(2)(B) (stating that an 

agency must prove its case by preponderant evidence). 
Veterans’ Employment Redress Laws in the Federal Civil Service 61

establish the motivation for the agency’s action or inaction because motive is 

irrelevant in USERRA reemployment cases. 234

Establishing a discrimination case

A USERRA discrimination case is different from a discrimination case 

brought under Equal Employment Opportunity Commission procedures. In 

equal employment opportunity (EEO) discrimination cases, “disparate 

treatment” and “disparate impact” are two distinct analytical frameworks for 

establishing discrimination. A disparate treatment claim may succeed only if 

there is a finding of intent to discriminate by the acting party, while a 

disparate impact claim may succeed if a facially-neutral policy or practice has 

a disproportionate effect on a protected class of people and is not justified by 

business necessity. 235

In a USERRA discrimination case, the question is not the effect, but only the 

intent. Therefore, USERRA does not provide a cause of action under the 

disparate impact theory. While use of an agency policy or practice known to 

create a disparate impact may be used as evidence of discriminatory intent, 

the impact alone, in the absence of any discriminatory intent, is not 

pertinent to a USERRA discrimination case. 236

Discriminatory motivation in a USERRA case may be reasonably inferred 

from a variety of factors, including proximity in time between the 

employee’s military activity and the adverse employment action, 

inconsistencies between the proffered reason and other actions of the 

employer, an employer’s expressed hostility towards members protected by 

the statute together with knowledge of the employee’s military activity, and 

disparate treatment of certain employees compared to other employees with 

similar work records or offenses. In determining whether the employee has 

 

234 Wyatt v. U.S. Postal Service, 101 M.S.P.R. 28, ¶ 12 (2006); Clavin v. U.S. Postal Service, 99 M.S.P.R. 

619, ¶¶ 5-6 (2005).

235 Harellson v. U.S. Postal Service, 115 M.S.P.R. 378, ¶ 12 (2011).

236 Harellson v. U.S. Postal Service, 115 M.S.P.R. 378, ¶¶ 20-21 (2011).
Veterans’ Employment Redress Laws in the Federal Civil Service 62

proven that his protected status or activity was part of the motivation for 

the agency’s conduct, all record evidence may be considered, including the 

agency’s explanation for the actions taken. 237 

USERRA discrimination cases may refer to hostility towards an individual 

based on his or her service as “animus,” and find that the animus is a motive 

to discriminate. Discrimination can be found even when animus is not the 

only motivating factor. The test is often referred to as the “but for” test. 

Once animus is proven, the adjudicator must ask, if not for the animus, what 

would have happened?238

In USERRA discrimination cases, the question is not whether the official 

who decided to take the action had animus; rather, it is whether the agency ’s 

actions were a result of animus, even if that animus was held by someone else 

or took place at a different point in the process.

239

In Staub v. Proctor Hospital, an individual asserted that two supervisors within 

the hospital influenced a manager to fire him because the supervisors 

objected to his absences to perform uniformed service. He did not claim 

that the deciding manager bore him any animus, but asserted that a 

corrective action notice was issued by his supervisors out of animus, and 

that without the notice, the deciding manager would not have later removed 

him for violating the notice.

240

The case reached the Supreme Court, where the question was whether an 

employer could be held liable for employment discrimination under 

USERRA if an action was based on the discriminatory animus of an 

 

237 McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 20 (2013) (quoting extensively from Sheehan v. 

Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir 2001)).

238 Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).

239 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1193-94 (2011).

240 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1189-90 (2011). Although Staub involved a private 

sector employer, as noted earlier, decisions of the Supreme Court and Federal Circuit are binding on the 

Board. Decisions of other courts interpreting USERRA provisions may be followed at the Board ’s 

discretion, if the Board finds them persuasive.
Veterans’ Employment Redress Laws in the Federal Civil Service 63

employee who influenced, but did not make, the challenged employment 

decision. (This is known as a “cat’s paw” case, a term that comes from a 

fable in which a monkey convinces a cat to reach into a fire to take roasted 

chestnuts for them to eat. While the cat is busy repeatedly singeing his paw 

with each prize, the monkey eats all of the rewards. In the end, the monkey 

is fed but the cat has nothing to show for his efforts except a burned paw.)

241

The Court determined that, “if a supervisor performs an act motivated by 

antimilitary animus that is intended by the supervisor to cause an adverse 

employment action, and if that act is a proximate cause of the ultimate 

employment action, then the employer is liable under USERRA.”

242

 

Proximate cause in this context means that there is a direct relationship 

between the alleged animus by an official and the alleged employment action. 

There is no proximate cause if the link is indirect, remote, or comple tely 

contingent on other factors. 243

In Staub, the court held that there was evidence that antimilitary animus 

caused the issuance of a corrective action notice and that non-compliance 

with that notice caused the removal. It held that a reasonable jury could 

infer that those with the animus intended the removal and that therefore the 

hospital could be held liable for a USERRA violation.

244

This case demonstrates one of many reasons why it is so important for 

agencies to ensure that all of their employees avoid discriminatory and 

retaliatory conduct, including but not limited to discrimination based on 

military service. It is not enough to have deciding officials who respect 

military service if the system permits antimilitary animus at lower levels that 

influence the decision-makers. Agencies have a responsibility to keep 

 

241 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190, n.1 (2011). A copy of the fable, “The Monkey 

and the Cat” is available at http://www.gutenberg.org/files/25357/25357-h/25357-h.htm#Page_140. 

242 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011) (emphasis in original).

243 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1192 (2011).

244 Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011).
Veterans’ Employment Redress Laws in the Federal Civil Service 64

personnel actions clean of animus at all stages. Otherwise, the “cat’s paw”

will still get burned, and the agency will still be liable. 245

 

Because the intent to discriminate can be challenging to prove, cases often 

come down to what a witness claims someone else said or did. 246 In such 

cases, the adjudicator must make a credibility determination. When 

assessing credibility, an important factor is whether the testimony is 

supported or contradicted by other evidence. 247

 

Witness testimony can be sufficient evidence; however, a witness is more 

likely to be found credible if there is additional evidence to support that 

witness’s assertions.248

 For this reason, parties may find it useful to keep 

copies of important documents to produce later, should it become necessary. 

For agencies, this may include documentation of poor performance or 

conduct issues unrelated to military service. For appellants, it may include 

documentation to show that the conduct or performance was approved, to 

help establish that allegations of performance or conduct issues are a mere 

pretext for discrimination. 

245 See also Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 23 (2014) (applying the cat’s 

paw approach to whistleblower cases in which the decision-maker may lack a retaliatory animus but the 

official is influenced by someone seeking to retaliate for whistleblower activity). 

246 See, e.g., Williams v. Department of the Navy, 94 M.S.P.R. 206, ¶ 2 (2003) (in which the appellant 

alleged that he was told that the hiring agency did not want to hire veterans); Pruitt v. Department of Veterans 

Affairs, 97 M.S.P.R. 495, 497-98 (2004) (Separate Op., Chairman McPhie) (explaining that the appellant 

alleged that an agency personnel officer told her that the selecting official did not want to hire a veteran). 

247 To resolve credibility issues, an administrative judge must identify the factual questions in 

dispute, summarize the evidence on each disputed question, state which version he believes, and explain in 

detail why he found the chosen version more credible, considering such factors as: (1) the witness’s 

opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the 

witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent 

improbability of the witness’s version of events; and (7) the witness’s demeanor. These are known as the 

“Hillen factors.” See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). 

248 Compare Duncan v. Department of the Air Force, 674 F.3d 1359, 1364 (Fed. Cir. 2012) (finding that 

the Board could find that the appellant’s testimony was insufficient to establish that the agency improperly 

charged him military leave when the appellant failed to produce pay records to support his claims), with 

Tierney v. Department of Justice, 717 F.3d 1374, 1377-79 (Fed. Cir. 2013) (finding that the Board could not 

overrule the AJ’s determination that a witness was credible when the witness’s statements were supported 

by pay records). 
Veterans’ Employment Redress Laws in the Federal Civil Service 65

Agency allegations of conduct or performance issues 

Nothing in USERRA requires an agency to disregard misconduct or 

performance issues. 249 For example, in Strausbaugh v. Government Printing 

Office, the appellant was a probationary employee on a pass during his active 

military duty status with the U.S. Air Force Reserves. During a hurricane, he 

requested permission to bring his small child to the agency ’s facility. The 

appellant asserted that he had permission, while the supervisor asserted that 

he expressly and repeatedly denied the appellant’s request and that the 

appellant disobeyed an order to not bring the child. The Board found the 

agency’s witnesses more credible and held that despite the fact that the 

conduct at issue occurred while the appellant was in an active military sta tus, 

the reason for the action was his conduct and not antimilitary animus. The 

appellant’s request for relief was therefore denied. 250

In McMillan v. Department of Justice, the appellant was an Army reserve officer 

as well as a special agent with the Drug Enforcement Administration (DEA)

on a tour of duty in Peru, South America. There was allegedly some conflict 

between the agency and the appellant arising from the appellant attempting 

to represent DEA while with the Army and to use Army information in his 

DEA work. The question was whether the agency’s decision to deny the 

appellant’s request for an extension of his civilian tour of duty in Peru was 

motivated by an antimilitary animus or whether it was a result of the 

appellant’s failure to meet the office’s desired goals in terms of seizures, 

arrests, and informant recruitment. 251 

The AJ determined that the appellant had not shown that the denial of the 

tour extension was the result of discrimination. On petition for review, the 

 

249 See, e.g., Strausbaugh v. Government Printing Office, 117 M.S.P.R. 566 (conduct-based action); 

McMillan v. Department of Justice, 120 M.S.P.R. 1 (2013) (performance-based action).

250 Strausbaugh v. Government Printing Office, 117 M.S.P.R. 566, ¶¶ 3-7, 12, 15 (2012). See also Swidecki 

v. Department of Commerce, 113 M.S.P.R. 168, ¶¶ 8-10 (2010) (remanding the case for a decision on the merits 

as to whether the agency removed the appellant from consideration for a position due to antimilitary 

discrimination or if it was because he failed a background check due to criminal conduct). 

251 McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶¶ 2-9 (2013).
Veterans’ Employment Redress Laws in the Federal Civil Service 66

Board held that USERRA should be read to prohibit adverse employment 

actions based on the content and performance of any military assignment, 

general or specific. Thus, if the appellant was acting on orders from his military 

supervisors when he conflated the two jobs, he could not be punished for it by 

his civilian supervisors. 252 

However, the Board also noted that USERRA protections are dependent 

upon an employee’s compliance with the reasonable and ordinarily accepted 

standards of personal conduct and performance expected from all civilian 

employees. The Board emphasized that its holding should not be read to 

imply that USERRA prohibits an employer from considering events which 

occur during a period of service but do not constitute performance of 

military duty. Nor does USERRA prohibit an employer from taking action 

against an employee for gratuitous misconduct in the course of performing 

military duties.

253

Thus, if the appellant’s military orders did not require his actions and his 

civilian supervisors were opposed to it, his actions could not be protected 

under USERRA. The Board remanded the case to the AJ to make the 

necessary credibility determinations regarding precisely what occurred and 

why.254

DEPARTMENT OF LABOR ROLE IN USERRA CLAIMS

As stated previously, VEOA requires that a complaint be filed with DOL

before an appeal may be filed with the Board. However, in a USERRA case, 

the appellant may file a complaint with DOL or file directly with the Board 

without seeking assistance from DOL. 255 But, if the appellant opts to file

 

252 McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶¶ 11, 16-18 (2013).

253 McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 17 (2013).

254 McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶¶ 2-9, 11, 16-18 (2013).

255 DOL and OSC have “interrelated statutory obligations” under USERRA. In the past, they have 

addressed this situation through the use of a memorandum of understanding. Individuals interested in 

using either agency to pursue a USERRA claim may benefit from checking to see which agency they should 

contact as such agreements can change. See, e.g., Memorandum of Understanding Between Veterans’
Veterans’ Employment Redress Laws in the Federal Civil Service 67

with DOL for a USERRA claim, the appellant must exhaust that remedy

before filing a USERRA claim with MSPB.

256

 

USERRA also differs from VEOA in that USERRA does not provide for 

exhaustion of the complaint before DOL as a matter of time; rather, it 

requires notification from DOL that the Secretary of Labor’s efforts did not 

resolve the appellant’s complaint. Thus, if the appellant opts to seek help 

from DOL, the Board does not acquire jurisdiction over the USERRA claim 

until the appellant receives the required notification from DOL. 257

NO DEADLINES TO FILE USERRA CLAIMS WITH MSPB, BUT LACHES MAY 

APPLY

Unlike VEOA, USERRA does not contain a specific time limit to file an 

appeal. However, the Board has acknowledged that the “doctrine of laches”

may apply as a defense to a USERRA claim.258 Under laches, an 

unreasonable delay in pursuing a right or a claim can result in the dismissal 

of the claim by the adjudicating body, even if there is no statutory deadline 

to file the claim. The idea behind laches is that the passage of time tends to 

result in the destruction of evidence or loss of witness testimony, putting the 

defense in an unfair position.

259

 The party asserting laches must prove both: 

(1) an unreasonable delay by the opposing party; and (2) prejudice (meaning 

that the ability to mount a defense was somehow harmed by the delay).

260

 

Employment and Training Service, United States Department of Labor and the United States Office of 

Special Counsel, at 6, available at available at https://osc.gov/resources/osc_d11.pdf (explaining that 

“[t]he provisions [of the agreement] may be reviewed and modified or terminated when it is determined, by 

either agency that such review and modification or termination is in [the] interest of efficient enforcement 

of the law or laws involved”).

256 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures Trading

Commission, 105 M.S.P.R. 392, ¶ 5 (2007).

257 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures Trading 

Commission, 105 M.S.P.R. 392, ¶ 5 (2007).

258 See Garcia v. Department of State, 101 M.S.P.R. 172, ¶¶ 14-17 (2006).

259 Jones v. Perkins, 76 F. 82, 85 (Mich., E. Dist., 1896).

260 Pueschel v. Department of Transportation, 113 M.S.P.R. 422, ¶ 6 (2010).
Veterans’ Employment Redress Laws in the Federal Civil Service 68

For example, in Johnson v. U.S. Postal Service, the appellant was on a 

temporary promotion in 2003 when he was called for active duty. While on 

active duty, he applied to be permanently promoted to the position he 

temporarily held, but he was not selected. When he returned from military 

service later in 2003, he was returned to his permanent position, and 

voluntarily retired within a year. In 2011, the appellant filed a USERRA 

appeal of his non-selection, asserting that he was not promoted in 2003 

because of discrimination regarding his military service. He also asserted 

that he had just learned of his right to appeal the events of 2003. 261

The agency moved to dismiss the appeal on the grounds that the officials

involved in the 2003 decision had since retired and it could not find its 

records regarding the action, likely because its policy was to retain such 

records for only 5 years.262 

The Board held that if the appellant believed for 8 years that he had been 

discriminated against, it was unreasonable for him to wait that long without 

trying to determine what his appeal rights might be. Furthermore, as the 

appellant had not informed the agency that he felt discriminated against, the 

agency was not obligated to tell him of his USERRA rights. Thus, the Board 

found that the delay was unreasonable. 263

The Board also held that, although the retirement of officials does not alone 

establish prejudice (particularly if the witness(es) can be located), the 

combination of the retirements, the deleterious effect of 8 years on 

memories, and the likelihood that the records had been destroyed in the 

normal course of business was sufficient to establish prejudice. Accordingly, 

the appeal was dismissed as barred by the doctrine of laches. 264

 

261 Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶¶ 2-3 (2014).

262 Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 4 (2014).

263 Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶¶ 5-7 (2014).

264 Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶¶ 8-9 (2014).
Veterans’ Employment Redress Laws in the Federal Civil Service 69

Because USERRA does not have a specific filing deadline, it is possible to 

file a timely USERRA claim after the deadline to file other claims has 

passed. As mentioned in the introduction, if an individual has an otherwise 

appealable action (such as a removal) and asserts that it occurred because of 

discrimination based on military service, it will be processed as an 

affirmative defense for the adverse action case. However, if the appellant’s 

adverse action appeal is untimely or not within the Board’s adverse action 

jurisdiction, the Board may still consider his USERRA claim as a separate 

appeal.265

For example, in Brown v. U.S. Postal Service, the appellant asserted that his 

removal was the result of agency actions that were designed to “get rid of 

him” before he could be called to serve in the Navy. The appellant’s adverse 

action appeal to MSPB was untimely filed without good cause shown for the 

delay. Nevertheless, the Board noted that the appellant’s assertions could 

constitute a USERRA appeal and that such an appeal would be timely 

filed.266

USERRA’s substantive provisions do not apply retroactively, meaning that if 

a person did not have a particular right prior to USERRA, then the 

individual cannot assert a violation of the right through USERRA redress 

proceedings. But, where a governmental action violated a veterans’

protection statute in effect at the time the conduct occurred, the Board has 

jurisdiction under USERRA to adjudicate claims arising from that past 

violation, regardless of whether it occurred before or after USERRA’s 

enactment. This, combined with the lack of a deadline to file, can result in 

 

265 See Brown v. U.S. Postal Service, 106 M.S.P.R. 12, ¶ 19 (2007); Holmes v. Department of Justice, 92 

M.S.P.R. 377, ¶¶ 11-12 (2007). 

266 Brown v. U.S. Postal Service, 106 M.S.P.R. 12, ¶¶ 9, 18-19 (2007). 
Veterans’ Employment Redress Laws in the Federal Civil Service 70

MSPB jurisdiction over events that are several years old,

267 although laches 

may result in a dismissal of the claim.

268

STANDING TO FILE A USERRA CLAIM

As explained earlier, to pursue a claim before MSPB, the party must have 

“standing”—meaning that the law intended that the party should be able to 

bring the case.269 Typically, when appearing before MSPB, the party filing 

the appeal is a person negatively affected by the decision of an employer or 

potential employer. The person may appear pro se (representing himself or 

herself) or use another person as a representative, such as a union 

representative or private-sector attorney.270 However, USERRA provides 

that OSC may appear on behalf of, and act as attorney for, the person 

complaining of a violation of his rights under USERRA and explicitly states 

that OSC may “initiate an action regarding such complaint before the Merit 

Systems Protection Board.”

271

The ability of OSC to pursue a claim on behalf of an individual under 

USERRA is an important distinction, because OSC is expressly not 

permitted to file a complaint for corrective action under VEOA. OSC has 

the authority to seek corrective action for most PPPs. The VEOA statute 

created a new PPP, numbered (b)(11), prohibiting a knowing violation of 

preference rights. Yet, the statute also stated that “[n]otwithstanding any 

other provision of this title, no authority to order corrective action shall be 

available in connection with a prohibited personnel practice described in 

 

267 See, e.g., Machulas v. Department of the Air Force, 109 M.S.P.R. 165, ¶ 7 (2008) (finding that the 

Board could have jurisdiction over military leave issues from 15 years earlier).

268 See, e.g., Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶¶ 8-9 (2014) (dismissing the appellant’s 

claim as barred by the doctrine of laches).

269 Wilks v. Department of the Army, 91 M.S.P.R. 70, ¶ 11 (2002) (describing the issue as one of 

standing). 

270 A party may choose any representative as long as that person is willing and available to serve. 

5 C.F.R. § 1201.31(b).

271 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶ 7 (2009) (quoting 38 U.S.C. 

§ 4324(a)(2)(A)).
Veterans’ Employment Redress Laws in the Federal Civil Service 71

subsection (b)(11).” VEOA is in title 5, as is OSC’s authority to seek 

corrective actions, while USERRA is in title 38. 272 Thus, the ability of OSC 

to intercede on an individual’s behalf is dependent upon which statute 

(VEOA or USERRA) is being used to pursue the claim. 

AN “EMPLOYER” FOR PURPOSES OF USERRA JURISDICTION

As with VEOA, while USERRA is read broadly, the Board will not have

jurisdiction over an employer when the law specifically excludes the 

employer from the Board’s jurisdiction. 

The USERRA statute specifically excludes the Board from having 

jurisdiction over “the Federal Bureau of Investigation, the Central 

Intelligence Agency, the Defense Intelligence Agency, the National 

Geospatial-Intelligence Agency, the National Security Agency, the Office of 

the Director of National Intelligence, and the National Reconnaissance 

Office[.]”

273

Other agencies may also be excluded from the Board’s USERRA jurisdiction. 

In Conyers v. Department of Transportation, an individual who sought 

employment as a Supervisory Transportation Security Screener with the TSA 

filed an appeal with MSPB asserting jurisdiction under several different 

statutes, including USERRA. The Board held that under the law that created 

the TSA, Congress specifically excluded TSA screener positions from 

MSPB’s USERRA jurisdiction. The appellant appealed this finding to the 

Federal Circuit, which reached the same conclusion, that MPSB’s jurisdiction 

 

272 See 5 U.S.C. §§ 2302(b)(11), 2302(e)(2), 1214; 38 U.S.C. § 4301 et seq. 

273 38 U.S.C. § 4303(5); 5 U.S.C. § 2302(a)(2)(C)(ii). See Erlendson v. Justice, 121 M.S.P.R. 441, ¶ 6 

(2014); (finding that the Board lacked jurisdiction over the appellant’s USERRA complaint against the 

Federal Bureau of Investigation); Alford v. Department of Defense, 113 M.S.P.R. 263, ¶ 15 (2010) (finding that 

an employee of the Defense Intelligence Agency cannot file a USERRA appeal with the Board). 
Veterans’ Employment Redress Laws in the Federal Civil Service 72

is limited to that granted to it by law, and the law specifically excluded the 

screeners from MSPB’s jurisdiction for purposes of USERRA.274

 

USERRA differs from VEOA regarding how the entity being sued is 

defined. VEOA focuses on the actions of an “agency,” which the law does 

not define, while USERRA is about an “employer,” which the law defines in 

great detail.275

 As explained below, the language used to define employer in 

the USERRA statute has created a situation where the Board can have 

USERRA jurisdiction for cases involving individuals who are not paid 

directly by the Government, even though it lacks jurisdiction over the 

private sector employer.276

Agencies often use contract employees to accomplish work for which the 

agency is responsible. 277 In Silva v. Department of Homeland Security, the 

appellant was employed by a contractor, performed work for Customs and 

Border Patrol (CBP) within DHS under the contract, left for military service, 

was replaced by someone else, returned from military service, and requested 

a return to his former position serving DHS under the contract between 

274 Conyers v. Merit Systems Protection Board, 388 F.3d 1380, 1381-83 (Fed. Cir. 2004) (explaining why 

the undersecretary has “greater flexibility regarding screener positions than he or she may have with 

respect to other classes of employees”); see Spain v. Department of Homeland Security, 99 M.S.P.R. 529, ¶¶ 8-9 

(2005) (applying Conyers to find that the Board lacked USERRA jurisdiction over termination and failure to 

reemploy claims). But see Quinlan v. Department of Homeland Security, 118 M.S.P.R. 362, ¶ 8 (2012) (finding 

that MSPB has jurisdiction over TSA reductions in grade under the language of 49 U.S.C. § 40122(g)(3)); 

Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 12 (2014) (explaining that MSPB has 

jurisdiction over TSA whistleblower claims under the Whistleblower Protection Enhancement Act of 

2012). TSA began as a part of the Department of Transportation and later became a part of the 

Department of Homeland Security. Thus, TSA cases may be found under either name, depending on when 

the suit occurred.

275 Compare 5 U.S.C. § 3330(a)(1) (not defining “agency”), with 38 U.S.C. § 4303(4) (explaining that 

an “employer” includes an entity that has control over employment opportunities). 

276 The Board has not yet been presented with a case where an individual asserts a VEOA claim 

against a private sector contractor, and therefore cannot state what might occur under such a case. 

277 In 2011, it was estimated that the Government spent approximately $320 billion on contracts 

for services. Ron Nixon, “Government Pays More in Contracts, Study Finds,” New York Times, Sep. 12, 

2011, available at http://www.nytimes.com/2011/09/13/us/13contractor.html. 
Veterans’ Employment Redress Laws in the Federal Civil Service 73

DHS and the private sector company. The contractor did not return the 

appellant to the position, allegedly at DHS’s request.278

 

The Board noted that in the private sector, under USERRA, an employer 

includes not only the entity that pays an employee’s salary or wages, but also 

anyone to whom an employer has delegated employment-related 

responsibilities. When the authority over the individual is shared in this 

manner, both employers share responsibility for compliance with USERRA. 

The Board recognized the principle that USERRA should be broadly 

construed and any “interpretive doubt” should be “resolved in the veteran’s 

favor.”

279

 The Board therefore held that a Federal agency could be 

considered the employer over a contractor’s employee under the right 

conditions. Because the appellant had made a nonfrivolous allegation that 

DHS exercised control over his reemployment to such an extent that it 

should be considered his “employer” under USERRA, and the Board had 

USERRA jurisdiction over CBP within DHS, the Board held that it had 

jurisdiction over the appellant’s USERRA claim against DHS, even though 

the appellant’s position was not in the civil service. However, the Board 

lacked jurisdiction over the appellant’s claim against the contractor. 280

THE RIGHT TO A USERRA HEARING 

As explained earlier, a VEOA appellant is not automatically entitled to a 

hearing regarding either jurisdiction or the merits of a VEOA appeal. 281

 In 

contrast, under USERRA, once an appellant has established Board 

278 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶ 2 (2009). 

279 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶¶ 10, 13-14 (2009) (quoting Kirkendall 

v. Department of the Army, 479 F.3d 830, 846 (Fed. Cir. 2007)).

280 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶¶ 15, 19 (2009). 

281 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no entitlement 

to VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007) (finding 

that the Board cannot exercise discretion but rather must grant a USERRA hearing if one is requested). 
Veterans’ Employment Redress Laws in the Federal Civil Service 74

jurisdiction, he has an unconditional right to a hearing on the merits of his 

USERRA claim.282

 

However, that right to a hearing attaches only after jurisdiction has been 

found. For example, in Downs v. Department of Veterans Affairs, the appellant 

was discharged from military service under other than honorable conditions. 

This deprived the Board of USERRA jurisdiction, even though the appellant 

made a nonfrivolous allegation under USERRA and therefore met the general

USERRA jurisdictional test. The Board held that the unconditional right to 

a hearing does not attach until after jurisdiction has been established, and 

that since jurisdiction was lacking, a hearing would not be held.283

 This is 

consistent with the point made by our reviewing court mentioned in the 

introduction: “When jurisdiction is lacking, the only function remaining to 

the court is that of announcing the fact and dismissing the cause. ”

284

 

USERRA RELIEF 

USERRA and VEOA have similar provisions instructing the Board on the 

relief to grant if a violation has been found. Under 5 U.S.C. § 3330c 

(VEOA), if the Board finds a violation occurred, it will “order the agency to 

comply with such provisions and award compensation for any loss of wages 

or benefits suffered by the individual by reason of the violation involved.” 

Under 38 U.S.C. § 4324 (USERRA), if the Board finds a violation occurred, 

it will “enter an order requiring the agency or Office [of Personnel 

Management] to comply with such provisions and to compensate such 

person for any loss of wages or benefits suffered by such person by reason 

of such lack of compliance.”

As explained earlier, under VEOA, if a candidate’s rights were violated with 

respect to a recruitment action, the proper remedy will usually be to 

282 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012). 

283 Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶¶ 17–18 (2008). 

284 Chertkov v. Office of Personnel Management, 52 F.3d 961, 966 (Fed. Cir. 1995) (internal punctuation 

and citations omitted). 
Veterans’ Employment Redress Laws in the Federal Civil Service 75

reconstruct the action. The appellant is not entitled to be selected—only to 

have the process reconstructed with the laws and regulations followed 

properly.285 Similarly, in a USERRA case involving non-selection, the fact 

that a USERRA violation occurred does not automatically require an agency 

to give the appellant the position. As with VEOA, the action must be 

reconstructed, and selection and an award for “lost wages”

286 become issues 

only if the appellant would have gotten the position in a properly 

constructed process.287

The specific relief granted for a particular USERRA violation will depend on 

what needs to be remedied (for example, restoration of leave that was 

denied, reemployment in the position that was previously held, or promotion 

due to the escalator principle). However, the core principle is the same—to 

put the appellant where he or she would have been if not for the violation. 288

 

285 See Gonzalez v. Department of Homeland Security, 110 M.S.P.R. 567, ¶ 6 (2009); Lodge v. Department of 

the Treasury, 109 M.S.P.R. 614, ¶ 7 (2008).

286 Lost wages under USERRA are different from back pay under the Back Pay Act (which applies 

to many other Board decisions). Under USERRA, a service member is expected to exercise reaso nable 

diligence to mitigate economic damages suffered as a result of an employer’s violation of USERRA. 

Therefore, an award of lost wages and benefits must be offset by the amount the appellant should have 

reasonably earned during the relevant period. In contrast, the Back Pay Act does not require that a back 

pay award be offset by what an employee should have reasonably earned during the relevant period; rather, 

5 U.S.C. § 5596 requires only that an award of back pay be offset by amounts actually earned by the 

employee through other employment during the period at issue. Erickson v. U.S. Postal Service, 120 M.S.P.R. 

468, ¶ 17, n.6 (2013).

287 See Grandberry v. Department of Homeland Security, 406 F. App’x 472, 475 (Fed. Cir. 2010).

288 See, e.g., Tully v. Department of Justice, 481 F.3d 1367, 1369 (Fed. Cir. 2007) (explaining that a 

basic principle of USERRA is that service member employees receive benefits equal to, but not more 

favorable than, those generally available to all employees of the employer).
Veterans’ Employment Redress Laws in the Federal Civil Service 76

CHAPTER NINE: CONCLUSION

The laws for veterans’ redress are complicated, especially VEOA because of 

the way in which it interacts with so many other parts of the civil service. 

Vague and undefined terms in 5 U.S.C. § 3330a and the statute’s applicability 

to “any statute or regulation relating to veterans’ preference” have resulted 

in an extensive body of case law that may be confusing for the average 

veteran or preference eligible. It also has resulted in a system with so many 

rules that OPM has, at times, not kept up with necessary changes. The 

USERRA statute, while far more extensive, may be easier to use because its 

terms and provisions are more tightly defined and it has fewer moving parts. 

USERRA and VEOA share some common elements, but differ in several 

important respects. In particular, VEOA requires that an appellant exhaust

his or her administrative remedies and adhere to strict deadlines in the 

absence of an exception known as equitable tolling. In contrast, USERRA 

does not require an exhaustion of administrative remedies and does not have 

strict deadlines for filing. VEOA does not have a guaranteed right to a 

hearing. USERRA has a right to a hearing upon request once jurisdiction is 

established. Under VEOA, an appellant has the burden of proof on the 

merits. Under USERRA, the party with the burden of proof depends on 

whether the claim alleges discrimination or a failure to reemploy.

The complexity of the systems of rights and of redresses for veterans, 

preference eligibles, and service members creates a burden on the individuals 

that the laws were meant to help, particularly those who seek to navigate the 

process without the assistance of a legal expert. While we hope this report 

will be useful to veterans, preference eligibles, and service members, these 

individuals could all benefit from a system that requires less explanation and 

is easier for agencies and individuals to understand.

A violation of a veteran’s rights—whether adjudicated under USERRA or 

VEOA—can have serious consequences for a veteran who must wait for the 
Veterans’ Employment Redress Laws in the Federal Civil Service 77

redress procedures in order to get what he or she was entitled to receive—

especially if it means a lengthy period of no pay where a salary should have 

occurred. A violation can also have serious consequences for an innocent 

bystander who may need to be removed from a position while the personnel 

action in question is reconstructed. Everyone benefits when employers 

adhere to the laws and regulations pertaining to veterans and promptly take 

corrective action in response to any violation of those requirements.
Veterans’ Employment Redress Laws in the Federal Civil Service 78

APPENDIX A: DEFINITION OF VETERAN AND RELATED TERMS (5 U.S.C. 

§ 2108)

For the purpose of this title—

(1) “veteran” means an individual who—

(A) served on active duty in the armed forces during a war, in a campaign or 

expedition for which a campaign badge has been authorized, or during the period 

beginning April 28, 1952, and ending July 1, 1955; 

(B) served on active duty as defined by section 101 (21) of title 38 at any time in the 

armed forces for a period of more than 180 consecutive days any part of which 

occurred after January 31, 1955, and before October 15, 1976, not including service 

under section 12103 (d) of title 10 pursuant to an enlistment in the Army National 

Guard or the Air National Guard or as a Reserve for service in the Army Reserve, 

Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; 

(C) served on active duty as defined by section 101 (21) of title 38 in the armed 

forces during the period beginning on August 2, 1990, and ending on January 2, 

1992; or 

(D) served on active duty as defined by section 101 (21) of title 38 at any time in 

the armed forces for a period of more than 180 consecutive days any part of which 

occurred during the period beginning on September 11, 2001, and ending on the 

date prescribed by Presidential proclamation or by law as the last date of Operation 

Iraqi Freedom; 

and, except as provided under section 2108a, who has been discharged or released from 

active duty in the armed forces under honorable conditions; 

(2) “disabled veteran” means an individual who has served on active duty in the armed 

forces, (except as provided under section 2108a) has been separated therefrom under 

honorable conditions, and has established the present existence of a service -connected 

disability or is receiving compensation, disability retirement bene fits, or pension because 
Veterans’ Employment Redress Laws in the Federal Civil Service 79

of a public statute administered by the Department of Veterans Affairs or a military 

department; 

(3) “preference eligible” means, except as provided in paragraph (4) of this section or 

section 2108a (c)— 

(A) a veteran as defined by paragraph (1)(A) of this section; 

(B) a veteran as defined by paragraph (1)(B), (C), or (D) of this section; 

(C) a disabled veteran; 

(D) the unmarried widow or widower of a veteran as defined by paragraph (1)(A) of 

this section; 

(E) the wife or husband of a service-connected disabled veteran if the veteran has 

been unable to qualify for any appointment in the civil service or in the government 

of the District of Columbia; 

(F) the mother of an individual who lost his life under honorable conditions while 

serving in the armed forces during a period named by paragraph (1)(A) of this 

section, if— 

(i) her husband is totally and permanently disabled; 

(ii) she is widowed, divorced, or separated from the father and has not 

remarried; or 

(iii) she has remarried but is widowed, divorced, or legally separated from 

her husband when preference is claimed; 

(G) the mother of a service-connected permanently and totally disabled veteran, 

if— 

(i) her husband is totally and permanently disabled; 
Veterans’ Employment Redress Laws in the Federal Civil Service 80

(ii) she is widowed, divorced, or separated from the father and has not 

remarried; or 

(iii) she has remarried but is widowed, divorced, or legally separated from 

her husband when preference is claimed; and 

(H) a veteran who was discharged or released from a period of active duty by 

reason of a sole survivorship discharge (as that term is defined in section 1174 (i) of 

title 10); 

but does not include applicants for, or members of, the Senior Executive Service, the 

Defense Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, 

or the Federal Bureau of Investigation and Drug Enforcement Administration Senior 

Executive Service; 

(4) except for the purposes of chapters 43 and 75 of this title, “preference eligible” does 

not include a retired member of the armed forces unless— 

(A) the individual is a disabled veteran; or 

(B) the individual retired below the rank of major or its equivalent; and 

(5) “retired member of the armed forces” means a member or former member of the 

armed forces who is entitled, under statute, to retired, retirement, or retainer pay on 

account of service as a member. 
Veterans’ Employment Redress Laws in the Federal Civil Service 81

APPENDIX B: COMPARING VEOA AND USERRA 

The table below is offered as a quick reference guide to illustrate some similarities and 

differences between VEOA and USERRA but is not a substitute for consulting pertinent 

cases, statutes, or regulations. Similarities have a white background; differences have a 

light colored background. 

 VEOA USERRA

Level of Statutory 

Detail

The statutory language is 

relatively brief and 

occasionally vague, resulting 

in both the Board and the 

Federal Circuit defining many 

of its terms in case law.

The statutory language is 

extensive, detailed, and often 

self-explanatory.

Applicability VEOA applies only to the 

Federal Government. There is 

no private sector equivalent.

USERRA rights apply to the 

private and public sectors, 

including the Federal 

Government, but the systems 

for redress are different.

Defining the Individuals The individual must be a 

veteran as described in 5 

U.S.C. § 3304(f)(1) or be a 

preference eligible. 289

The individual must be a 

person who is a member of, 

applies to be a member of, 

performs, has performed, 

applies to perform, or has an 

obligation to perform service 

in a uniformed service.290

Defining the Employer The employing entity is “an 

agency,” which is not defined 

in statute.

The employer is a broad 

category defined in statute.

Scope of MSPB

Jurisdiction

MSPB can lack jurisdiction 

over certain Federal 

employers.291

MSPB can lack jurisdiction 

over certain Federal 

employers.292

289 5 U.S.C. § 3330a(a)(1). 

290 38 U.S.C. § 4311(a). See Lourens v. Merit Systems Protection Board , 193 F.3d 1369, 1371 (Fed. Cir. 

1999) (holding that the Board did not have USERRA jurisdiction over claims by a widow with derived 

preference eligibility when the widow had not been a member of—or applicant to—a uniformed service). 

291 Morse v. Merit Systems Protection Board, 621 F.3d 1346, 1348-51 (Fed. Cir. 2010) (holding that the 

Board lacks jurisdiction over VEOA appeals from TSA applicants); see Belhumeur v. Department of 

Transportation, 104 M.S.P.R. 408, ¶ 8 (2007) (holding that the Board lacks jurisdiction over VEOA appeals 

from FAA employees and applicants). 
Veterans’ Employment Redress Laws in the Federal Civil Service 82

 VEOA USERRA

Establishing MSPB 

Jurisdiction

Jurisdiction can be established 

through a non-frivolous 

assertion.293

Jurisdiction can be established 

through a non-frivolous 

assertion.294 

Affirmative Defense in 

an Otherwise 

Appealable Action

VEOA rights can be raised as 

an affirmative defense in an 

action that is otherwise 

appealable to MSPB.

295

USERRA rights can be raised 

as an affirmative defense in 

an action that is otherwise 

appealable to MSPB.

296

Filing with DOL An individual must (in the 

absence of equitable tolling) 

file a complaint with DOL 

within 60 days after the date 

of the alleged violation. 297

An individual has the option 

to file a complaint with DOL 

but can seek redress from the 

Board without first filing a 

complaint with DOL. 298

Exhaustion of Remedies 

at DOL

If DOL has not resolved the 

complaint after 60 days, an 

individual may file an appeal 

with MSPB after notifying 

DOL of the intent to file with 

MSPB.299

If the individual opted to file 

a complaint with DOL, the

individual must wait for the 

complaint to be resolved. 

The passage of time does not 

enable the individual to file 

with MPSB.300

292

 Conyers v. Merit Systems Protection Board, 388 F.3d 1380, 1381-83 (Fed. Cir. 2004); see Spain v. 

Department of Homeland Security, 99 M.S.P.R. 529, ¶¶ 8-9 (2005) (applying Conyers to find that the Board 

lacked USERRA jurisdiction over termination and failure to reemploy claims). But see Quinlan v. Department 

of Homeland Security, 118 M.S.P.R. 362, ¶ 8 (2012) (finding that MSPB has jurisdiction over TSA reductions 

in grade under the language of 49 U.S.C. § 40122(g)(3)); Aquino v. Department of Homeland Security, 121 

M.S.P.R. 35, ¶ 12 (2014) (explaining that MSPB has jurisdiction over TSA whistleblower clai ms under the 

Whistleblower Protection Enhancement Act of 2012).

293 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Becker v. Department 

of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). 

294 Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013); Williams v. Department of the 

Air Force, 97 M.S.P.R. 252, ¶ 10 (2004).

295 Aguilar v. U.S. Postal Service, 102 M.S.P.R. 102, ¶ 8 (2006). 

296 Aguilar v. U.S. Postal Service, 102 M.S.P.R. 102, ¶ 8 (2006). 

297 See Kirkendall v. Department of the Army, 479 F.3d 830, 844 (Fed. Cir. 2007) (holding that 5 U.S.C. 

§§ 3330a(a)(1)(A) and 3330a(d)(1)(B) are subject to equitable tolling); 5 U.S.C. § 3330a(a)(2)(A). 

298 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures Trading

Commission, 105 M.S.P.R. 392, ¶ 5 (2007). 

299 Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶¶ 8, 10 (2011); 5 U.S.C. § 3330a(d). 

300 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures Trading

Commission, 105 M.S.P.R. 392, ¶ 5 (2007). 
Veterans’ Employment Redress Laws in the Federal Civil Service 83

 VEOA USERRA

Deadlines to File In the absence of equitable 

tolling, the appellant cannot 

file: (1) before the 61st day 

after the date on which the 

complaint is filed; or (2) later 

than 15 days after the date on 

which the individual receives 

written notification from the 

Secretary that the matter is 

closed.301

USERRA does not contain a 

deadline to file, but laches 

may apply.302

Burden of Proof The appellant must prove the 

merits of the case by 

preponderant evidence. 303

In a discrimination case, the 

appellant must prove the 

merits of the case by 

preponderant evidence. If 

that burden is met, the agency 

may avoid relief by showing 

by preponderant evidence that 

it would have taken the same 

action even in the absence of 

the improper motivation.304 

In a reemployment case, the 

agency bears the burden of 

proving, by preponderant 

evidence, that it met its 

statutory obligations to 

reemploy the individual with 

the appropriate level of career 

advancement and benefits. 305

OSC Role OSC cannot pursue corrective 

action on the individual’s 

behalf.306

OSC may appear on the 

appellant’s behalf.307

301 5 U.S.C. § 3330a(d)(1). 

302 See Garcia v. Department of State, 101 M.S.P.R. 172, ¶¶ 14-17 (2006). 

303 Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 11 (2010). 

304 Burroughs v. Department of the Army, 120 M.S.P.R. 392, ¶ 5 (2013); Strausbaugh v. Government Printing 

Office, 117 M.S.P.R. 566, ¶ 11 (2012). 

305 Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005) (explaining that the standard for 

reemployment cases is derived from 5 U.S.C. § 7701(c)(2)(B)). See 5 U.S.C. § 7701(c)(2)(B) (stating that an 

agency must prove its case by preponderant evidence). 

306 See 5 U.S.C. §§ 2302(b)(11), 2302(e)(2), 1214. 
Veterans’ Employment Redress Laws in the Federal Civil Service 84

 VEOA USERRA

Right to a Hearing No right to a hearing. 308 Right to a hearing. 309

Available Remedies If a violation is found, the 

agency will be required to 

comply with the violated 

provisions and award 

compensation for any loss of 

wages or benefits suffered as a 

result of the violation.

310

If a violation is found, the 

agency will be required to 

comply with the violated 

provisions and award 

compensation for any loss of 

wages or benefits suffered as 

a result of the violation. 311

307 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶¶ 15, 19 (2009) (quoting 38 U.S.C. § 

4324(a)(2)(A)). 

308 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no entitlement 

to VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007) (finding 

that the Board cannot exercise discretion but rather must grant a USERRA hearing if one is requested). 

309 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no entitlement 

to VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007) (finding 

that the Board cannot exercise discretion but rather must grant a USERRA hearing if one is requested). 

310 5 U.S.C. § 3330c. 

311 38 U.S.C. § 4324. 
Veterans’ Employment Redress Laws in the Federal Civil Service 85

APPENDIX C: EQUITABLE TOLLING 

The concept behind equitable tolling is that a party should not be deprived 

of the ability to pursue a claim because of a statute of limitations if the 

party, despite diligent efforts, was unaware of the injury. 312 The Supreme 

Court has extended this concept to suits against the Government, provided 

that there is not “good reason to believe that Congress did not want the 

equitable tolling doctrine to apply.”

313

 This is known as the Irwin

presumption, named for the case in which the Supreme Court established 

the concept.314

In United States v. Brockamp, a case involving tax refunds, the Court noted 

that the language in the statute at issue “sets forth its time limitations in 

unusually emphatic form.” Accordingly, the Court found that the timing 

requirements in the statute were not subject to equitable tolling—meaning 

they could not be waived.315

The VEOA statute also contains timing requirements for which strong 

language is used, such as stating that “in no event” may an appeal be 

brought to MPSB if it is filed too soon or too late. 316 There is also a 

requirement that a complaint with DOL “must be filed within 60 days.”

317

 

However, as explained below, equitable tolling does apply to VEOA.

In Kirkendall v. Department of the Army, the Federal Circuit was presented with 

a case in which an appellant missed the deadline to file his VEOA complaint 

with DOL. The question was whether the language in the statute, stating the 

312 Black’s Law Dictionary, 9th ed. (2009). 

313 United States v. Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original, punctuation modified). 

314 See Kirkendall v. Department of the Army, 479 F.3d 830, 836 (Fed. Cir. 2007) (explaining that the 

court must be guided by the presumption established in Irwin v. Department of Veterans Affairs, 498 U.S. 89 

(1990)). 

315 United States v. Brockamp, 519 U.S. 347, 350, 354 (1997). 

316 5 U.S.C. § 3330a(d); see Kirkendall v. Department of the Army, 479 F.3d 830, 838 (Fed. Cir. 2007) 

(describing this language as “certainly strong”).

317 5 U.S.C. § 3330a(a)(2)(a). 
Veterans’ Employment Redress Laws in the Federal Civil Service 86

complaint “must be filed” by a deadline, was intended by Congress to mean 

“must be filed unless we would usually allow the deadline to be missed for 

this particular reason;” and whether “in no event” could the appeal deadline 

be missed was intended to mean “in no event other than events we usually 

allow when the Government is being sued.”

318

 

The Federal Circuit held that VEOA was the type of statute for which 

equitable tolling is appropriate. It particularly noted the canon that veterans’

benefits statutes should be construed in the veteran’s favor.319 Therefore, 

the VEOA deadlines for filing with DOL or with the Board can be waived if 

the Board finds that the appellant has actively pursued his judicial remedies 

by filing a defective pleading during the statutory period, or where he has 

been induced or tricked by his adversary’s misconduct into allowing the 

filing deadline to pass. 320

318 Kirkendall v. Department of the Army, 479 F.3d 830, 838-41 (Fed. Cir. 2007). 

319 Kirkendall v. Department of the Army, 479 F.3d 830, 843-44 (Fed. Cir. 2007). 

320 Roesel v. Peace Corps, 111 M.S.P.R. 366, ¶ 8 (2009). 
Veterans’ Employment Redress Laws in the Federal Civil Service 87

APPENDIX D: VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998 

REDRESS STATUTE (5 U.S.C. § 3330a-c) 

5 U.S.C. § 3330a

(a) 

 (1) 

(A) A preference eligible who alleges that an agency has violated such 

individual’s rights under any statute or regulation relating to veterans’

preference may file a complaint with the Secretary of Labor. 

(B) A veteran described in section 3304 (f)(1) who alleges that an agency has 

violated such section with respect to such veteran may file a complaint with 

the Secretary of Labor. 

 (2) 

 (A) A complaint under this subsection must be filed within 60 days after the 

date of the alleged violation. 

 (B) Such complaint shall be in writing, be in such form as the Secretary may 

prescribe, specify the agency against which the complaint is filed, and 

contain a summary of the allegations that form the basis for the complaint. 

 (3) The Secretary shall, upon request, provide technical assistance to a potential 

complainant with respect to a complaint under this subsection. 

(b) 

(1) The Secretary of Labor shall investigate each complaint under subsection (a). 

(2) In carrying out any investigation under this subsection, the Secretary ’s duly 

authorized representatives shall, at all reasonable times, have reasonable access to, 

for purposes of examination, and the right to copy and receive, any documents of 

any person or agency that the Secretary considers relevant to the investigation. 
Veterans’ Employment Redress Laws in the Federal Civil Service 88

(3) In carrying out any investigation under this subsection, the Secretary may require by 

subpoena the attendance and testimony of witnesses and the production of documents 

relating to any matter under investigation. In case of disobedience of the subpoena or 

contumacy and on request of the Secretary, the Attorney General may apply to any 

district court of the United States in whose jurisdiction such disobedience or contumacy 

occurs for an order enforcing the subpoena. 

(4) Upon application, the district courts of the United States shall have jurisdiction 

to issue writs commanding any person or agency to comply with the subpoena of 

the Secretary or to comply with any order of the Secretary made pursuant to a 

lawful investigation under this subsection and the district courts shall have 

jurisdiction to punish failure to obey a subpoena or other lawful order of the 

Secretary as a contempt of court. 

(c) 

(1) 

(A) If the Secretary of Labor determines as a result of an investigation under 

subsection (b) that the action alleged in a complaint under subsection (a) 

occurred, the Secretary shall attempt to resolve the complaint by making 

reasonable efforts to ensure that the agency specified in the complaint 

complies with applicable provisions of statute or regulation relating to 

veterans’ preference. 

(B) The Secretary of Labor shall make determinations referred to in 

subparagraph (A) based on a preponderance of the evidence. 

(2) If the efforts of the Secretary under subsection (b) with respect to a complaint 

under subsection (a) do not result in the resolution of the complaint, the Secretary 
Veterans’ Employment Redress Laws in the Federal Civil Service 89

shall notify the person who submitted the complaint, in writing, of the results of 

the Secretary’s investigation under subsection (b). 

(d) 

(1) If the Secretary of Labor is unable to resolve a complaint under subsection (a) 

within 60 days after the date on which it is filed, the complainant may elect to 

appeal the alleged violation to the Merit Systems Protection Board in accordance 

with such procedures as the Merit Systems Protection Board shall prescribe, except 

that in no event may any such appeal be brought— 

(A) before the 61st day after the date on which the complaint is filed; or 

(B) later than 15 days after the date on which the complainant receives 

written notification from the Secretary under subsection (c)(2). 

(2) An appeal under this subsection may not be brought unless— 

(A) the complainant first provides written notification to the Secretary of 

such complainant’s intention to bring such appeal; and 

(B) appropriate evidence of compliance with subparagraph (A) is included 

(in such form and manner as the Merit Systems Protection Board may 

prescribe) with the notice of appeal under this subsection. 

(3) Upon receiving notification under paragraph (2)(A), the Secretary shall not 

continue to investigate or further attempt to resolve the complaint to which the 

notification relates. 

(e) 

(1) This section shall not be construed to prohibit a preference eligible from 

appealing directly to the Merit Systems Protection Board from any action which is 

appealable to the Board under any other law, rule, or regulation, in lieu of 

administrative redress under this section. 
Veterans’ Employment Redress Laws in the Federal Civil Service 90

(2) A preference eligible may not pursue redress for an alleged violation described 

in subsection (a) under this section at the same time the preference eligible pursues 

redress for such violation under any other law, rule, or regulation.

5 U.S.C. § 3330b

(a) In lieu of continuing the administrative redress procedure provided under section 

3330a (d), a preference eligible, or a veteran described by section 3330a (a)(1)(B) with 

respect to a violation described by such section, may elect, in accordance with this section, 

to terminate those administrative proceedings and file an action with the appropriate 

United States district court not later than 60 days after the date of the election. 

(b) An election under this section may not be made— 

(1) before the 121st day after the date on which the appeal is filed with the Merit 

Systems Protection Board under section 3330a (d); or 

(2) after the Merit Systems Protection Board has issued a judicially reviewable 

decision on the merits of the appeal. 

(c) An election under this section shall be made, in writing, in such form and manner as 

the Merit Systems Protection Board shall by regulation prescribe. The election shall be 

effective as of the date on which it is received, and the administrative proceeding to which 

it relates shall terminate immediately upon the receipt of such election.

5 U.S.C. § 3330c

(a) If the Merit Systems Protection Board (in a proceeding under section 3330a) or a court 

(in a proceeding under section 3330b) determines that an agency has violated a right 

described in section 3330a, the Board or court (as the case may be) shall order the agency 

to comply with such provisions and award compensation for any loss of wages or benefits 

suffered by the individual by reason of the violation involved. If the Board or court 

determines that such violation was willful, it shall award an amount equal to backpay as 

liquidated damages. 
Veterans’ Employment Redress Laws in the Federal Civil Service 91

(b) A preference eligible who prevails in an action under section 3330a or 3330b shall be 

awarded reasonable attorney fees, expert witness fees, and other litigation expenses. 
Veterans’ Employment Redress Laws in the Federal Civil Service 92

APPENDIX E: VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998 

OPPORTUNITY TO COMPETE STATUTE (5 U.S.C. § 3304(f))

(1) Preference eligibles or veterans who have been separated from the armed forces under 

honorable conditions after 3 years or more of active service may not be denied the 

opportunity to compete for vacant positions for which the agency making the 

announcement will accept applications from individuals outside its own workforce under 

merit promotion procedures. 

(2) If selected, a preference eligible or veteran described in paragraph (1) shall receive a 

career or career-conditional appointment, as appropriate. 

(3) This subsection shall not be construed to confer an entitlement to veterans’ preference 

that is not otherwise required by law. 

(4) The area of consideration for all merit promotion announcements which include 

consideration of individuals of the Federal workforce shall indicate that preference 

eligibles and veterans who have been separated from the armed forces under honorable 

conditions after 3 years or more of active service are eligible to apply. The announcements 

shall be publicized in accordance with section 3327. 

(5) The Office of Personnel Management shall prescribe regulations necessary for the 

administration of this subsection. The regulations shall ensure that an individual who has 

completed an initial tour of active duty is not excluded from the application of this 

subsection because of having been released from such tour of duty shortly before 

completing 3 years of active service, having been honorably released from such duty. 
COMPARING VEOA AND USERRA 

The table below is offered as a quick reference guide to illustrate some similarities and differences 

between VEOA and USERRA but is not a substitute for consulting pertinent cases, statutes, or 

regulations. Similarities have a white background; differences have a light colored background. 

VEOA USERRA

Level of Statutory 

Detail

The statutory language is relatively brief and 

occasionally vague, resulting in both the Board and 

the Federal Circuit defining many of its terms in 

case law.

The statutory language is extensive, detailed, and often 

self-explanatory.

Applicability VEOA applies only to the Federal Government. 

There is no private sector equivalent.

USERRA rights apply to the private and public sectors, 

including the Federal Government, but the systems for 

redress are different.

Defining the 

Individuals

The individual must be a veteran as described in 

5 U.S.C. § 3304(f)(1) or be a preference eligible. 1

The individual must be a person who is a member of, 

applies to be a member of, performs, has performed, 

applies to perform, or has an obligation to perform 

service in a uniformed service. 2

Defining the 

Employer

The employing entity is “an agency,” which is not 

defined in statute.

The employer is a broad category defined in statute.

Scope of MSPB 

Jurisdiction

MSPB can lack jurisdiction over certain Federal 

employers. 3

MSPB can lack jurisdiction over certain Federal 

employers. 4

Establishing MSPB 

Jurisdiction

Jurisdiction can be established through a nonfrivolous assertion. 5Jurisdiction can be established through a non-frivolous 

assertion. 6 

Affirmative Defense 

in an Otherwise 

Appealable Action

VEOA rights can be raised as an affirmative 

defense in an action that is otherwise appealable to 

MSPB.7

USERRA rights can be raised as an affirmative defense in 

an action that is otherwise appealable to MSPB. 8

Filing with DOL An individual must (in the absence of equitable 

tolling) file a complaint with DOL within 60 days 

after the date of the alleged violation. 9

An individual has the option to file a complaint with DOL 

but can seek redress from the Board without first filing a 

complaint with DOL. 10

Exhaustion of 

Remedies at DOL

If DOL has not resolved the complaint after 60 

days, an individual may file an appeal with MSPB 

after notifying DOL of the intent to file with 

MSPB.11

If the individual opted to file a complaint with DOL, the 

individual must wait for the complaint to be resolved. 

The passage of time does not enable the individual to file 

with MPSB.12

Deadlines to File In the absence of equitable tolling, the appellant 

cannot file: (1) before the 61st day after the date on 

which the complaint is filed; or (2) later than 15 

days after the date on which the individual receives 

written notification from the Secretary that the 

matter is closed.13

USERRA does not contain a deadline to file, but laches 

may apply.14

Burden of Proof The appellant must prove the merits of the case by 

preponderant evidence. 15

In a discrimination case, the appellant must prove the merits 

of the case by preponderant evidence. If that burden is 

met, the agency may avoid relief by showing by 

preponderant evidence that it would have taken the same 

action even in the absence of the improper motivation.

16

 

In a reemployment case, the agency bears the burden of 

proving, by preponderant evidence, that it met its 

statutory obligations to reemploy the individual with the 

appropriate level of career advancement and benefits. 17

OSC Role OSC cannot pursue corrective action on the 

individual’s behalf. 18

OSC may appear on the appellant’s behalf. 19

Right to a Hearing No right to a hearing. 20 Right to a hearing. 21

Available Remedies If a violation is found, the agency will be required 

to comply with the violated provisions and award 

compensation for any loss of wages or benefits 

suffered as a result of the violation. 22

If a violation is found, the agency will be required to 

comply with the violated provisions and award 

compensation for any loss of wages or benefits suffered as 

a result of the violation. 23

Veterans’ Employment Redress Laws in the Federal Civil Service 93
ENDNOTES FOR COMPARING VEOA AND USERRA 

1

 5 U.S.C. § 3330a(a)(1). 

2

 38 U.S.C. § 4311(a). See Lourens v. Merit Systems Protection Board , 193 F.3d 1369, 1371 (Fed. Cir. 

1999) (holding that the Board did not have USERRA jurisdiction over claims by a widow with derived 

preference eligibility when the widow had not been a member of—or applicant to—a uniformed 

service). 

3 Morse v. Merit Systems Protection Board, 621 F.3d 1346, 1348-51 (Fed. Cir. 2010) (holding that 

the Board lacks jurisdiction over VEOA appeals from TSA applicants); see Belhumeur v. Department of 

Transportation, 104 M.S.P.R. 408, ¶ 8 (2007) (holding that the Board lacks jurisdiction over VEOA 

appeals from FAA employees and applicants). 

4

 Conyers v. Merit Systems Protection Board, 388 F.3d 1380, 1381-83 (Fed. Cir. 2004); see Spain v. 

Department of Homeland Security, 99 M.S.P.R. 529, ¶¶ 8-9 (2005) (applying Conyers to find that the Board 

lacked USERRA jurisdiction over termination and failure to reemploy claims). But see Quinlan v. 

Department of Homeland Security, 118 M.S.P.R. 362, ¶ 8 (2012) (finding that MSPB has jurisdiction over 

TSA reductions in grade under the language of 49 U.S.C. § 40122(g)(3)); Aquino v. Department of 

Homeland Security, 121 M.S.P.R. 35, ¶ 12 (2014) (explaining that MSPB has jurisdiction over TSA 

whistleblower claims under the Whistleblower Protection Enhancement Act of 2012).

5 Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Becker v. 

Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). 

6 Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013); Williams v. Department of the 

Air Force, 97 M.S.P.R. 252, ¶ 10 (2004).

7 Aguilar v. U.S. Postal Service, 102 M.S.P.R. 102, ¶ 8 (2006). 

8 Aguilar v. U.S. Postal Service, 102 M.S.P.R. 102, ¶ 8 (2006). 

9 See Kirkendall v. Department of the Army, 479 F.3d 830, 844 (Fed. Cir. 2007) (holding that 5 

U.S.C. §§ 3330a(a)(1)(A) and 3330a(d)(1)(B) are subject to equitable tolling); 5 U.S.C. § 3330a(a)(2)(A). 

10 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures 

Trading Commission, 105 M.S.P.R. 392, ¶ 5 (2007). 

11 Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶¶ 8, 10 (2011); 5 U.S.C. § 3330a(d). 

12 Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012); Graham v. Commodity Futures 

Trading Commission, 105 M.S.P.R. 392, ¶ 5 (2007). 

13 5 U.S.C. § 3330a(d)(1). 

14 See Garcia v. Department of State, 101 M.S.P.R. 172, ¶¶ 14-17 (2006). 

15 Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 11 (2010). 

16 Burroughs v. Department of the Army, 120 M.S.P.R. 392, ¶ 5 (2013); Strausbaugh v. Government 

Printing Office, 117 M.S.P.R. 566, ¶ 11 (2012). 

17 Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005) (explaining that the standard for 

reemployment cases is derived from 5 U.S.C. § 7701(c)(2)(B)). See 5 U.S.C. § 7701(c)(2)(B) (stating that 

an agency must prove its case by preponderant evidence). 

18 See 5 U.S.C. §§ 2302(b)(11), 2302(e)(2), 1214. 

19 Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶¶ 15, 19 (2009) (quoting 38 U.S.C. 

§ 4324(a)(2)(A)).

20 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no 

entitlement to VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 

2007) (finding that the Board cannot exercise discretion but rather must grant a USERRA hearing if 

one is requested). 

21 Compare Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 8 (2011) (finding no 

entitlement to VEOA hearing), with Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 

2007) (finding that the Board cannot exercise discretion but rather must grant a USERRA hearing if 

one is requested). 

22 5 U.S.C. § 3330c. 

23 38 U.S.C. § 4324. 

Veterans’ Employment Redress Laws in the Federal Civil Service 94

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