UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BYRON GILES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-3443-15-0523-I-1

DATE: March 10, 2016

THIS ORDER IS NONPRECEDENTIAL1

Byron Giles, Shreveport, Louisiana, pro se. 

Brandi M. Powell, New Orleans, Louisiana, 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

dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional 

office for further adjudication in accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a GS-11 Information Technology (IT) Specialist, appealed 

his nonselection for promotion to the GS-12 position of Supervisory IT Specialist. 

Initial Appeal File (IAF), Tab 1. He requested a hearing. Id. The administrative 

judge dismissed the appeal for lack of jurisdiction without holding the hearing 

that the appellant requested, finding that generally the Board does not have 

jurisdiction over nonselections, and that the appellant failed to allege jurisdiction 

under any of the exceptions to the general rule, i.e., that the agency’s decision 

constituted retaliation for whistleblowing, discrimination based on uniformed 

service, or a violation of his veterans’ preference rights. 2

 IAF, Tab 10, Initial 

Decision. 

¶3 In his petition for review, the appellant alleges that the administrative judge 

erred in finding that he failed to allege a violation of his veterans’ preference 

rights under the Veterans Employment Opportunities Act of 1998 (VEOA) and 

that he failed to allege discrimination on the basis of uniformed service under the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA). Petition for Review (PFR) File, Tab 1. 

¶4 To establish jurisdiction over a VEOA appeal alleging a violation of 

veteran’s preference rights, an appellant must (1) show that he exhausted his 

remedy with the Department of Labor; and (2) make nonfrivolous allegations that:

(i) he is a preference eligible within the meaning of VEOA, (ii) the action at issue 

took place on or after the date that VEOA was enacted, and (iii) the agency 

violated his rights under a statute or regulation relating to veterans’ 

preference. 5 U.S.C. § 3330a(a)(1)(A); Jarrard v. Social Security 

Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed.

Cir. 2012). 

 2 Because the administrative judge dismissed the appeal for lack of jurisdiction, she did 

reach the issue of whether the appeal was timely filed. IAF, Tab 10, Initial Decision. 
3

¶5 The appellant alleged below that he was entitled to veterans’ preference, 

and he referenced his military obligation to the Air Force Reserves. IAF, 

Tabs 1, 9. While it is unclear whether he was attempting to raise a VEOA claim 

below, he clearly raised one on review. PFR File, Tab 1. The administrative 

judge did not inform the appellant of the VEOA jurisdictional standard. The 

acknowledgment order that she issued identified the VEOA statutory provision, 

but did not inform the appellant that the provision referenced VEOA, and did not 

specifically inform the appellant of the Board standard to prove jurisdiction under 

VEOA. IAF, Tab 2 at 2. An appellant must receive explicit information on what 

is required to establish an appealable jurisdictional issue. Burgess v. Merit 

Systems Protection Board, 758 F.2d 641, 643‐44 (Fed. Cir. 1985). Thus, the 

appellant must be afforded an opportunity to establish jurisdiction under VEOA

under the standard set forth above. 

¶6 Similarly, it appears that the appellant may have been attempting to raise a 

claim under USERRA. The administrative judge, though, did not inform the 

appellant of the standard to prove jurisdiction under USERRA. To establish 

jurisdiction over a USERRA discrimination claim before the Board, 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, reemployment, retention, promotion, or any benefit of 

employment; and (3) the denial was due to his performance of duty or obligation 

to perform duty in the uniformed service. Gossage v. Department of 

Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (quoting 38 U.S.C. § 4311(a)). 

¶7 Here, the appellant alleged on his appeal form that he was a veteran and that 

he was entitled to veterans’ preference. IAF, Tab 1. Subsequently, he stated that 

about 2 months after his nonselection, he had completed his military obligation 

with the Air Force Reserves. IAF, Tab 9 at 3. Thus, we find that the appellant 

met elements (1) and (2) of the USERRA jurisdictional standard. At issue is 

whether the appellant established element (3) of the test. 
4

¶8 A claim under USERRA should be broadly and liberally construed in 

determining whether an appellant has established the Board’s jurisdiction, 

particularly where, as here, the appellant is pro se. Swidecki v. Department of 

Commerce, 113 M.S.P.R. 168, ¶ 6 (2010); Gaston v. Peace Corps, 100 M.S.P.R. 

411, ¶ 8 (2005). Because the appellant alleged that his nonselection and his 

military obligation occurred very close together in time, we find that he has made 

a nonfrivolous allegation that his nonselection was due to his obligation to 

perform a duty in the uniformed service, and thus he met element (3) of the 

USERRA jurisdictional test. 

¶9 The relative weakness of an appellant’s assertions in support of his claim 

under USERRA is not a basis for a jurisdictional dismissal. Thus, we find that 

the appellant has established jurisdiction over his USERRA claim. Further, once 

an appellant has established the Board’s jurisdiction over his USERRA appeal, he 

has a right to a hearing on the merits of his claim. 38 U.S.C.A. § 4301 et seq. 

¶10 Accordingly, we remand the case to afford the appellant the opportunity to 

establish Board jurisdiction under VEOA, and for the hearing that he requested on 

his claim that the agency discriminated against him in violation of USERRA. 

IAF, Tab 1. 

ORDER

¶11 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.

______________________________

William D. Spencer

Clerk of the Board