UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC WILLIAMS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

AT-4324-16-0662-I-1

DATE: August 25, 2022

THIS ORDER IS NONPRECEDENTIAL1

Eric Williams, North Charleston, South Carolina, pro se.

Kristin A. Martin, Norfolk, Virginia, for the agency.

Mary Kate DeMane, Portsmouth, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed for lack of jurisdiction his request for corrective action under the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). For the reasons 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

discussed below, we GRANT the appellant’s petition for review, VACATE the 

initial decision, and REMAND the case to the regional office for further 

adjudication in accordance with this Remand Order. 

¶2 In July 2016, the appellant filed a USERRA appeal alleging that he is a 30% 

disabled veteran and that the agency discriminated against him on the basis of 

his uniformed military service when it did not select him for the GS-9/11 

Contract Specialist position advertised under vacancy ID 1460254 (job

announcement number EA51102-12-1460254LZ122318D).2Initial Appeal File 

(IAF), Tab 1 at 1-5. The appellant requested a hearing. Id. at 1. The 

administrative judge issued an order informing the appellant of his jurisdictional 

burden and proof requirements and directed him to submit evidence and 

argument amounting to a nonfrivolous allegation of jurisdiction. IAF, Tab 3

at 2-5, 7. In response, the appellant alleged that the agency took the following 

improper actions, which led to his nonselection, because of his status as a 

veteran: (1) violated the pass over provisions of 5 U.S.C. § 3318(b); (2) failed to 

give appropriate consideration to his disability rating; (3) violated his veterans’ 

preference rights under the category rating procedures; (4) inappropriately used 

Expedited Hiring Authority to make its selections for the Contract Specialist 

position; (5) failed to properly rate and rank his application; (6) failed to credit 

him with all valuable experience for the position; (7) failed to properly advertise 

the position; (8) denied him the opportunity to compete for the position; and

(9) committed other procedural irregularities. IAF, Tabs 6, 8.

 

2

The appellant also has challenged this nonselection in two separate appeals before the 

Board under the Veterans Employment Opportunities Act of 1998. In Williams v. 

Department of the Navy, MSPB Docket No. AT-3330-16-0663-I-1, Initial Decision 

(Aug. 4, 2016), the administrative judge dismissed the appeal for lack of jurisdiction. 

The initial decision became the final decision of the Board when neither party 

petitioned for review. In Williams v. Department of the Navy, MSPB Docket 

No. DC-3330-16-0292-B-1, on remand the administrative judge denied the appellant’s 

request for corrective action, and the Board denied the appellant’s petition for revi ew of 

the remand initial decision. Williams v. Department of the Navy, MSPB Docket No. 

DC-3330-16-0292-B-1, Final Order (Aug. 25, 2022).
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¶3 In the initial decision, the administrative judge dismissed the appeal for 

lack of jurisdiction, finding that the appellant failed to make more than bare 

allegations that his rights under USERRA were violated and instead merely 

catalogued how he believed his veterans’ preference rights were violated. IAF, 

Tab 10, Initial Decision (ID). 

¶4 The appellant has filed a petition for review of the initial decision, and the 

agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. 

¶5 Two types of cases arise under USERRA: (1) reemployment cases, in 

which the appellant claims that an agency has not met its obligations under 

38 U.S.C. §§ 4312-4318 following the appellant’s absence from civilian 

employment to perform uniformed service; and (2) “discrimination” cases, in 

which the appellant claims that an agency has taken an action prohibited by 

38 U.S.C. § 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 

(2005). The Board has adopted, and the U.S. Court of Appeals for the Federal 

Circuit has endorsed, a “liberal approach in determining whether jurisdiction 

exists under USERRA.” Yates v. Merit Systems Protection Board, 145 F.3d 

1480, 1484 (Fed. Cir. 1998); Beck v. Department of the Navy, 120 M.S.P.R. 504, 

¶ 8 (2014). Under this approach, the relative weakness of the specific factual 

allegations initially made by an appellant in his USERRA claim should not serve 

as the basis for dismissing the appeal for lack of jurisdiction; rather, if he fails to 

develop those allegations, his USERRA claim should be denied on the merits. 

Beck, 120 M.S.P.R. 504, ¶ 8. Thus, to establish jurisdiction over his USERRA 

claim, the appellant need only allege the following: (1) he served in the military; 

(2) he was denied initial employment, reemployment, retention in employment, 

promotion, or a benefit of employment; and (3) the denial was due to his service 

in the military. Id.

¶6 As noted above, the administrative judge found that the appellant failed to 

establish Board jurisdiction over his USERRA claim. ID at 3. However, in light 

of the liberal pleading standard applied in such cases, we find that the appellant’s 
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contentions that the agency denied him initial employment on the basis of his 

status as a veteran are sufficient to establish jurisdiction over his USERRA 

appeal. See Beck, 120 M.S.P.R. 504, ¶ 8; Searcy v. Department of Agriculture, 

115 M.S.P.R. 260, ¶ 8 (2010) (finding that, although the appellant’s allegations 

were vague and lacked specificity, he established jurisdiction by alleging that the 

agency was aware of his prior uniformed service and denied him employment 

because of it, and denied him a benefit of employment when it withdrew funds 

from his civil service retirement account).

¶7 An appellant who establishes jurisdiction over a USERRA appeal has an 

unconditional right to a hearing if he requests one. Kirkendall v. Department of 

the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007); Searcy, 115 M.S.P.R. 260, ¶ 7. 

Because the appellant requested a hearing and made sufficient allegations under 

the liberal pleading standard applied in USERRA cases to establish jurisdiction, 

we remand the appeal for a hearing on his USERRA claim.

ORDER

¶8 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board