UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM B. JOLLEY,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

SF-4324-14-0405-I-1

DATE: August 28, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

William B. Jolley, Brunswick, Georgia, pro se.

German A. Gomez, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his Uniformed Services Employment and Reemployment Rights Act 

(USERRA) appeal for lack of jurisdiction. Generally, we grant petitions such as 

this one only when: the initial decision contains erroneous findings of material 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

fact; the initial decision is based on an erroneous interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case; the 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review. For the reasons 

set forth below, we VACATE the initial decision’s finding that the Board lacks 

jurisdiction over this appeal and DENY the appellant’s request for corrective 

action. 

¶2 The appellant has been an employee of the Department of Housing & Urban 

Development (HUD) since at least 2004. Besides the instant USERRA appeal, he 

has filed at least two others. The administrative judge denied corrective action in 

both cases, and the Court of Appeals for the Federal Circuit affirmed those 

decisions. Jolley v. Department of Housing & Urban Development, MSPB 

Docket No. AT-3443-08-0162-I-1, Initial Decision (Mar. 25, 2008), aff’d, 299 F. 

App’x 966 (Fed. Cir. Nov. 18, 2008); MSPB Docket No. AT-4324-08-0316-I-1, 

Initial Decision, (May 23, 2008), aff’d, 299 F. App’x 969 (Fed. Cir. Nov. 18,

2008). 2

 While these matters were pending, officials at HUD directed the 

appellant’s reassignment, and, in 2010, he retired, considering both actions to be 

involuntary. He challenged one or both by filing suit against HUD in the U.S. 

 2 The appellant also has two constructive adverse action appeals pending against HUD 

in the regional office: MSPB Docket Nos. SF-0752-13-0583-I-1 and SF-0752-14-0286-

I-1.
3

District Court for the Southern District of Georgia under the Age Discrimination 

in Employment Act (ADEA).

3

¶3 In the instant appeal, which the appellant described as a complaint of 

reprisal under USERRA against the Department of Justice (DOJ or the agency), 

he challenged the directed reassignment and claimed forced retirement, alleging

age discrimination in connection therewith. Initial Appeal File (IAF), Tab 1 at 2. 

He argued that DOJ became responsible for the adverse actions taken against him 

because it provided direction and advice to HUD and did not comply with 

28 C.F.R. § 50.154 during the ADEA litigation. Id. at 3. Specifically, the 

appellant claimed that DOJ’s Assistant U.S. Attorney began representing HUD 

before a proper request for such representation was made. Id. at 37. He further 

argued that DOJ should be considered his “employer” under 38 U.S.C. 

§ 4303(4)(A) because, under law, it had control over his USERRA appeals and 

therefore the adverse employment actions taken by HUD. Id. at 15. In addition, 

he alleged that reprisal for activities protected by USERRA is DOJ’s 

responsibility because its violations affected both his USERRA appeal and his 

rights under the ADEA. Id. at 24. 

¶4 The administrative judge acknowledged the appeal, explaining that, under 

USERRA, the Board has jurisdiction over appeals alleging discrimination in 

federal employment on account of prior military service. Id., Tab 2. The agency 

urged that the appeal be dismissed for lack of jurisdiction on the basis that the 

appellant never worked for DOJ and that DOJ never took any appealable action 

against him. Id., Tab 7. The agency acknowledged that it had, in the past, 

defended HUD in various civil complaints filed by the appellant in U.S. District 

 3 It appears that the appellant appealed the District Court’s decision to the U.S. Court of 

Appeals for the Eleventh Circuit. Initial Appeal File, Tab 1 at 13.

4 That provision refers to the representation of federal officials and employees by DOJ 

attorneys or by private counsel furnished by DOJ in civil, criminal, and congressional 

proceedings in which federal employees are sued, subpoenad, or charged in their 

individual capacities. 
4

Court as required by 28 U.S.C. § 5165 but that such representation does not create 

Board jurisdiction over this appeal. Id.

¶5 In his initial decision, the administrative judge found, as the agency urged, 

that the appellant never worked for DOJ and that DOJ never took any action 

against him, that DOJ’s defense of HUD in various civil complaints he filed 

against HUD does not give DOJ authority over HUD’s employment relationship 

with the appellant or qualify DOJ as an “employer” under USERRA. Id., Tab 9, 

Initial Decision (ID) at 4-5. As such, the administrative judge dismissed the 

appeal for lack of jurisdiction. ID at 1, 5. 

¶6 The appellant alleges that the agency violated the nondiscrimination 

provision of USERRA, which provides, in relevant part, that “[a] person who . . . 

has performed . . . 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 . . . performance of service.” 

38 U.S.C. § 4311(a). However, the relative weakness of the specific factual 

allegations initially made by the appellant in this USERRA claim should not 

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

fails to develop these allegations, his USERRA claim should be denied on the 

merits. Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 7 (2010). 

Thus, in order to establish jurisdiction over his USERRA claim, the appellant

need only allege that: (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. Searcy, 

115 M.S.P.R. 260, ¶¶ 7-8. The Board has adopted, and the Court of Appeals for 

the Federal Circuit has endorsed, a “liberal approach in determining whether 

 5 Under that provision, the conduct of litigation where the United States, an agency, or 

officer thereof, is a party or has some interest, is reserved to officers of DOJ, under the 

direction of the Attorney General.
5

jurisdiction exists under USERRA.” Yates v. Merit Systems Protection Board, 

145 F.3d 1480, 1484 (Fed. Cir. 1998).

¶7 Here, in adjudicating other of the appellant’s USERRA appeals, the Board 

has found that he served in the military. See Jolley v. Department of Housing & 

Urban Development, MSPB Docket No. AT-4324-08-0316-I-1, Initial Decision at 

3; MSPB Docket No. AT-3443-08-0162-I-1, Initial Decision at 2. And, the 

appellant argues loosely that DOJ’s actions had the effect of denying him a 

benefit of employment because of his military service. Therefore his allegations 

are sufficient to establish jurisdiction under the Board’s liberal pleading standard 

for USERRA claims. See Beck v. Department of the Navy, 120 M.S.P.R. 504, ¶ 9 

(2014). Under the circumstances the appellant would ordinarily be entitled to a 

hearing on his claim. However, he declined a hearing. IAF, Tab 1 at b. 

Therefore, he is required to prove his claim by preponderant evidence. As set 

forth below, we find, based on the written record, that he failed to do so. To the 

extent that the administrative judge erred in dismissing the appeal for lack of 

jurisdiction, any such error did not prejudice the appellant’s substantive rights. 

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

¶8 On petition for review, the appellant argues that his USERRA appeal is 

authorized because, pursuant to 38 U.S.C. § 4303(4)(A)(ii), the federal 

government is his employer. Petition for Review (PFR) File, Tab 1 at 4-5. He 

further argues that DOJ’s failure to comply with 28 C.F.R. § 50.15 prevented the 

appeal of his forced retirement and was an act of reprisal for his filing the ADEA 

case and for prior actions he took that are protected by USERRA. Id. at 5-6. 

¶9 In arguing that DOJ should be considered his employer for purposes of this 

appeal, the appellant relies on 38 U.S.C. § 4303(4)(A)(ii) which defines 

“employer” under 38 U.S.C. chapter 43 as including “the Federal Government.” 

While it is no doubt true that all employees of federal agencies are employees of 

the federal government, the definition of “employer” also requires that the person, 

institution, organization, or other entity must pay salary or wages for work 
6

performed and have control over employment opportunities. 38 U.S.C. 

§ 4303(4)(A). The appellant has not shown that DOJ ever paid him salary for 

work performed. Although he asserts that DOJ had control over the conduct of 

his prior adjudications, he has not shown that, in representing HUD in civil 

actions filed by the appellant, DOJ exercised control over his personal 

employment opportunities at HUD. 38 U.S.C. § 4303(4)(A); see Silva v. 

Department of Homeland Security, 112 M.S.P.R. 362, ¶ 15 (2009). We find, 

therefore, that the appellant has failed to establish his USERRA claim and that his 

request for corrective action must be denied.

¶10 The appellant claims on review that the agency failed to comply with the 

administrative judge’s acknowledgement order to submit the material listed on the 

enclosed schedule and any other information required by 5 C.F.R. § 1201.25, and 

that the administrative judge failed to “warn” the agency of its “failure to 

defend,” as he requested. PFR File, Tab 1 at 6-7; IAF, Tab 2 at 7, 9, Tab 4. That 

material, in the case of a USERRA appeal, consists of a narrative response to the 

appeal and all material issues raised by the appellant and copies of all other 

documents relevant and material to the appeal. IAF, Tab 2 at 9. Contrary to the 

appellant’s claim, the agency, in its motion to dismiss the appeal for lack of 

jurisdiction, did respond to his argument that it should be held responsible for 

certain action taken against him by HUD, including actions allegedly taken in 

violation of USERRA. IAF, Tab 7. The agency argued that it took no action 

against the appellant because of his military status and indeed no action at all. Id. 

Under the circumstances, and because the appellant has failed to identify any 

particular documents that the agency failed to provide, we find that he has not 

shown any error on the part of the agency or any abuse of discretion by the 

administrative judge. 6

 6 In his reply to the agency’s response to his petition for review, the appellant argues 

that the agency failed to support its position that its representation of HUD in civil 

actions did not create, as to him, an employer-employee relationship. PFR File, Tab 5 
7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

 

at 9. However, in a USERRA appeal, it is the appellant who, after establishing the 

Board’s jurisdiction, must develop his allegations on the merits. Searcy, 115 M.S.P.R. 

260 ¶ 7. As we have found, the appellant failed to do so.
8

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board