UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATHANIEL K. WATTY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-4324-14-0152-I-1

DATE: April 12, 2016

THIS ORDER IS NONPRECEDENTIAL1

Nathaniel K. Watty, Saint Albans, New York, pro se.

Kathleen J. Tulloch, Esquire, Brooklyn, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

found he was not entitled to corrective action concerning his nonselection for 

promotion under either the Veterans Employment Opportunities Act of 1998 

(VEOA) or the Uniformed Services Employment and Reemployment Rights Act 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) and found that the 

Board lacks jurisdiction over his remaining claims. For the reasons discussed 

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

decision, FIND that the appellant has not waived his right to a hearing, and 

REMAND the case to the field office for further adjudication in accordance with 

this Order. 

BACKGROUND

¶2 The appellant filed an appeal alleging that the agency committed various 

prohibited personnel practices when he was not selected for a Supervisory Police 

Officer position. Initial Appeal File (IAF), Tab 1. He claimed, among other 

things, that the agency retaliated against him for filing previous Board appeals

and an equal employment opportunity complaint, denying him a promotion based 

on his membership and performance of service or obligation to perform service in 

a uniformed service, violating his veterans’ preference rights, and discriminating

against him based on his race, color, sex, national origin, and disability. Id. at 4-

9. The administrative judge issued orders on USERRA and VEOA jurisdiction,

including notice of proof requirements, and ordered the appellant to file 

statements addressing the jurisdictional requirements of USERRA and VEOA

claims. IAF, Tabs 3, 5. The administrative judge also ordered the appellant to 

file evidence and argument to establish a nonfrivolous allegation of jurisdiction 

over his nonselection claim independent of USERRA and VEOA. IAF, Tab 4. 

¶3 The appellant filed numerous pleadings addressing the jurisdictional orders. 

IAF, Tabs 7-22. The agency filed a motion requesting that discovery responses 

be stayed pending a ruling on jurisdiction. IAF, Tab 28. The administrative 

judge granted the agency’s motion over the appellant’s objections. IAF, Tabs 37, 

41. The administrative judge issued an initial decision finding that the Board has

jurisdiction over the VEOA claim and USERRA retaliation claim, but that the 

appellant waived his right to a hearing and was not entitled to corrective action 
3

under USERRA or VEOA based on the written record. IAF, Tab 50, Initial 

Decision (ID) at 4-13. The administrative judge further found that the Board 

otherwise lacked jurisdiction over his nonselection, USERRA discrimination 

claim, and allegations of other prohibited personnel practices. ID at 3, 12. 

¶4 The appellant has filed a petition for review arguing that the administrative 

judge erred by denying his hearing request, staying the agency’s discovery 

responses, and closing the record without allowing him an opportunity to address 

the merits of his claims. Petition for Review (PFR) File, Tab 1. The agency has 

filed a response in opposition to the appellant’s petition for review. PFR File, 

Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred by finding that the appellant waived his right to a 

hearing. 

¶5 On his appeal form, the appellant indicated that he did not want a hearing. 

IAF, Tab 1 at 2. However, on February 25, 2014, the appellant filed a motion 

requesting a hearing. IAF, Tab 24. The administrative judge found that the 

appellant’s request for a hearing was untimely and issued a decision without 

holding a hearing. ID at 2 n.1. 

¶6 An appellant must submit any request for a hearing with the appeal or 

within any other time period the administrative judge sets for that purpose. 

5 C.F.R. §§ 1201.24(e), 1208.13(b), 1208.23(b). Failure to timely request a 

hearing will result in a waiver of that right when the appellant has not shown 

good cause for the failure. Robinson v. Department of the Army, 50 M.S.P.R. 

412, 417 (1991). The factors to be considered when deciding to waive the 

deadline for requesting a hearing include those typically considered in connection 

with the waiver of the deadline for filing a petition for review: the length of the 

delay; whether the appellant was notified of the time limit or was otherwise 

aware; the existence of circumstances beyond the control of the appellant that

affected his ability to comply with the time limit; the degree to which negligence 
4

by the appellant is shown to be present or absent; circumstances showing that any 

neglect involved is excusable neglect; a showing of unavoidable casualty or 

misfortune; and the extent and nature of the prejudice to the agency that would 

result from waiver of the time limit. Beaudette v. Department of the Navy, 

5 M.S.P.R. 394, 398 (1981). In addition to these factors, the administrative judge 

should consider whether the time remaining, as of the date the request for a 

hearing was filed, reasonably permits the convening of a hearing and the 

rendering of a decision on the appeal within 120 days from the date on which the 

appeal was filed. Id.

¶7 The appeal was filed on January 28, 2014. IAF, Tab 1. The 

acknowledgment order was issued on January 30, 2014, and stated that, if the 

appellant had not yet requested a hearing, a written request for a hearing was due 

10 calendar days from the date of the order or the appellant’s right to a hearing 

would be waived. IAF, Tab 2 at 1. The appellant alleges that he did not receive 

the acknowledgment order because it was not mailed to his address of record. 

PFR File, Tab 1 at 4. On his appeal form, the appellant identified an address in 

St. Albans, New York. IAF, Tab 1 at 2. The acknowledgment order was mailed

to an address in Hempstead, New York. IAF, Tab 2. The appellant has identified 

this as his former address used in a previously filed appeal. PFR File, Tab 1 at 4. 

The appellant states that he called the Board and asked why he had not received 

an acknowledgment order in this appeal. Id. Nothing in the record shows that the 

acknowledgment order was ever sent to the appellant’s correct address or that he 

otherwise received the acknowledgment order. The appellant’s February 25, 2014 

hearing request was 15 days late, according to the time limit set in the 

acknowledgment order.

2

 IAF, Tab 2 at 1, Tab 25. 

 2 Because 10 calendar days after the date of the acknowledgment order fell on a Sunday, 

the appellant’s request was due no later than the next workday, which was Monday, 

February 10, 2014. 5 C.F.R. § 1201.23. 
5

¶8 The misdirected mailing of the acknowledgment order weighs in favor of

waiving a filing deadline. See Birdsong v. Department of the Navy, 75 M.S.P.R. 

524, 527 (1997). Further, although the appellant’s request for a hearing was late, 

the delay was not lengthy under the circumstances. There was sufficient time, 

more than 90 days, for the administrative judge to convene a hearing after the 

hearing request and render a decision within 120 days. The agency has not 

established that any prejudice would result from waiving the time limit. Based on 

these facts, we reverse the administrative judge’s finding that the appellant 

waived his right to request a hearing. See Shadrick v. Office of Personnel 

Management, 89 M.S.P.R. 357, ¶ 8 (2001) (finding that service at an incorrect 

address constitutes good cause for failure to respond to an administrative judge in 

a timely manner).

The appellant is entitled to a hearing on the merits of his USERRA discrimination 

and retaliation claims.

¶9 USERRA provides, in relevant part, that a person who has performed 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 on the basis of performance of that service or obligation. 

38 U.S.C. § 4311(a). To establish the Board’s jurisdiction over a USERRA 

discrimination claim arising under 38 U.S.C. § 4311(a), the appellant must allege 

the following: (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, reemployment, 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. Wilson v. Department of the Army, 111 M.S.P.R. 

54, ¶ 8 (2009). It is well established that a claim of discrimination under 

USERRA should be broadly and liberally construed in determining whether it is 

nonfrivolous. Id., ¶ 9. 
6

¶10 The administrative judge found that the Board lacks jurisdiction over the 

appellant’s claim under 38 U.S.C. § 4311(a) because the appellant failed to 

nonfrivolously allege that the performance of duty in a uniformed service was a 

substantial or motivating factor in his nonselection. ID at 12. The administrative 

judge acknowledged that the appellant alleged his past military service and 

obligation to perform military service was a substantial and motivating factor in 

the agency’s decision not to interview him, but found that, because the appellant 

offered no facts to support his assertions and merely quoted the applicable 

statutory language, he had not made a nonfrivolous allegation. Id. 

¶11 Although the appellant’s allegations are conclusory, we find that his 

contentions are sufficient to constitute an allegation of a USERRA violation. See

Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010). Specifically, 

the appellant has alleged that: he performed duty in a uniformed service of the 

United States; the agency was aware of his prior uniformed service; and the 

agency denied him a benefit of employment when it did not select him for the 

Supervisory Police Officer position. See id; IAF, Tab 1 at 6, Tab 7 at 8-9. Thus, 

the appellant’s allegation that his military service was a motivating factor in the 

agency’s decision to not interview him for the position at issue is sufficient to

establish the Board’s jurisdiction over his USERRA discrimination claim. See 

Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1484-85 (Fed. Cir. 

1998) (finding that a claim that a probationary termination was the result of 

military service was within the Board’s jurisdiction under USERRA even without 

an express reference to USERRA or discrimination). 

¶12 The appellant also alleges that his nonselection was in reprisal for having 

filed two prior Board appeals. IAF, Tab 1 at 5. The USERRA standard for 

retaliation claims set forth at 38 U.S.C. § 4311(b) provides in relevant part that an 

employer may not discriminate in employment against or take any adverse 

employment action against any person because: (1) he has taken an action to 

enforce a protection afforded any person under this chapter, (2) he has testified or 
7

otherwise made a statement in or in connection with any proceeding under this 

chapter, (3) he has assisted or otherwise participated in an investigation under 

this chapter, or (4) he has exercised a right provided for in this chapter. 

38 U.S.C. § 4311(b). The administrative judge appropriately found that the Board 

has jurisdiction over the appellant’s USERRA claim pursuant to 38 U.S.C. 

§ 4311(b). ID at 10-11. 

¶13 Because we have found that the appellant has established jurisdiction over 

his claims under 38 U.S.C. § 4311(a) and (b), he has a right to a hearing on the 

merits of his USERRA claims. Kirkendall v. Department of the Army, 

479 F.3d 830, 844-46 (Fed. Cir. 2007); Gossage v. Department of Labor, 

118 M.S.P.R. 455, ¶ 10 (2012). A USERRA claim within the Board’s jurisdiction 

should not be dismissed without holding a hearing based on the lack of evidence 

to support the claim. See Wilson, 111 M.S.P.R. 54, ¶¶ 9-10. Rather, if an 

appellant fails to develop his contentions, his claim should be denied on the 

merits after providing him with the hearing he has requested and to which he is 

entitled. See Kirkendall, 479 F.3d at 846; Swidecki, 113 M.S.P.R. 168, ¶ 6; Baker 

v. Department of Homeland Security, 111 M.S.P.R. 277, ¶ 18 (2009). Thus, we 

remand this appeal to the field office for a hearing on the appellant’s USERRA 

discrimination and retaliation claims.

The administrative judge erred by dismissing the VEOA claim for failure to state 

a claim without issuing a close-of-record order.

¶14 The administrative judge found that the Board has jurisdiction over the 

appellant’s VEOA claim and further found that the appellant was not entitled to 

corrective action because he had not been denied the right to compete for the 

position at issue. ID at 6-8. Because the administrative judge found that the 

Board has jurisdiction under VEOA, ID at 4-6, and declined to hold a hearing, he 

was responsible for advising the parties that there would be no hearing, for 

setting a date on which the record would close, and for affording the parties the 

opportunity to make submissions regarding the merits of the appeal before the 
8

date the record would close, see Jarrard v. Department of Justice, 113 M.S.P.R. 

502, ¶ 11 (2010). 

¶15 The administrative judge’s order regarding VEOA jurisdiction states that, if 

the Board has jurisdiction over the appeal, he would adjudicate the merits after 

holding a hearing or providing the parties an opportunity to further develop the 

written record. IAF, Tab 3 at 7. The administrative judge did not give the parties 

notice that there would be no hearing and did not give the parties an opportunity 

to file evidence and argument before the record closed. Failing to provide notice 

that the record would close is particularly problematic here because the 

administrative judge stayed discovery responses pending a determination on 

jurisdiction. IAF, Tab 41; see Jarrard, 113 M.S.P.R. 502, ¶ 11. 

¶16 On remand, the administrative judge must provide the parties with an 

opportunity to complete discovery and make submissions regarding the merits of 

the VEOA claim. If the parties’ submissions show that there is a factual dispute 

material to the issue of whether the appellant is entitled to relief under VEOA, the 

administrative judge should include the VEOA claim in the hearing on the merits. 

See Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001). 

In the absence of such a showing, the VEOA claim may be adjudicated on the

written record. See id.

The Board lacks jurisdiction to consider the other claims of prohibited personnel 

practices and discrimination.

¶17 The appellant raised prohibited personnel practices, discrimination, and 

retaliation claims in his appeal. IAF, Tab 1. The Board’s jurisdiction is limited 

to those matters over which it has been given jurisdiction by law, rule, or 

regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 

1985). Nonselections are not directly appealable to the Board, and claims of 

prohibited personnel practices generally do not provide independent bases for the 

Board’s jurisdiction. Davis v. Department of Defense, 105 M.S.P.R. 604, 

¶¶ 15-17 (2007). In VEOA and USERRA appeals the Board cannot consider 
9

claims of prohibited discrimination under 5 U.S.C. § 2302(b)(1) because neither 

statute grants the Board the authority to consider those claims. Davis, 

105 M.S.P.R. 604, ¶ 16. Accordingly, in the remand initial decision, the 

administrative judge may incorporate his prior jurisdictional findings on the 

appellant’s claims of prohibited personnel practices and discrimination except to 

the extent necessary to adjudicate his VEOA and USERRA claims. See Ruffin v. 

Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001). 

ORDER

¶18 For the reasons discussed above, we remand this case to the field office for 

further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board