UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JEFFREY S. OSTWALD,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DE-4324-14-0615-I-1

DATE: June 8, 2015

THIS ORDER IS NONPRECEDENTIAL1

Jeffrey S. Ostwald, Omaha, Nebraska, pro se.

Paul L. Pullum, Esquire, Omaha, Nebraska, 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 his Uniformed Services Employment and Reemployment Rights Act of 

1994 (USERRA) appeal for failure to prosecute. For the reasons discussed 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision, and REMAND the case to the field office for further adjudication in 

accordance with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant is a 10-point preference-eligible veteran with a 30% or more 

service-connected disability. Initial Appeal File (IAF), Tab 5 at 19. On 

August 25, 2013, the agency appointed him to the excepted service position of 

GS-06 Medical Support Assistant. Id. On August 14, 2014, less than 1 year into 

his appointment, the agency terminated the appellant for “habitual tardiness and 

not satisfactorily meeting the minimum requirements for the position.” Id. 

at 11-13.

¶3 On August 21, 2014, the appellant filed a USERRA complaint with the 

Department of Labor (DOL). IAF, Tab 1 at 4, 10. On September 13, 2014, he 

filed a USERRA appeal with the Board and requested a hearing, disputing the 

stated reasons for his termination, and arguing that his service obligations with 

the Army National Guard were the real reason for his termination. Id. at 2, 5.

¶4 On September 16, 2014, the administrative judge issued an order informing 

the appellant of how to establish jurisdiction over his appeal, and directing him to 

file evidence and argument on the issue within 12 days of the date of the order. 

IAF, Tab 3. The appellant did not respond. On October 23, 2014, the 

administrative judge issued a show cause order, directing the appellant to file 

evidence and argument on the jurisdictional issue within 7 days, and informing 

the appellant that the appeal might be dismissed for failure to prosecute if he did 

not respond. IAF, Tab 6. The appellant did not respond to the order. On 

December 2, 2014, the administrative judge issued a “Final Order to Show 

Cause,” informing the appellant that he proposed to dismiss the appeal for failure 

to prosecute, and warning the appellant that the appeal would be dismissed with 

prejudice unless the appellant contacted him no later than December 9, 2014. 

IAF, Tab 7. Again, the appellant did not respond. On December 31, 2014, the 
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administrative judge issued an initial decision dismissing the appeal for failure to 

prosecute. IAF, Tab 8, Initial Decision (ID) at 1-2. The initial decision notified 

the appellant of how to file a petition for review with the Board and notified him 

that the filing deadline was February 4, 2015. ID at 3-4.

¶5 On March 6, 2015, the appellant filed a petition for review. Petition for 

Review (PFR) File, Tab 1. He explained that his petition was untimely because 

he was on military orders, attempting to obtain attorney representation, and 

working with DOL to resolve his case. Id. at 3-4. He explained that DOL had 

since completed its investigation, determined that he had been discriminated 

against based on his uniformed service, and concluded that he should be 

reinstated. Id. at 4. He attached a copy of DOL’s letter to his petition. Id. at 5-7. 

The agency has filed a response to the petition for review, opposing it on both 

timeliness and substantive grounds. PFR File, Tab 3.

¶6 To determine whether an appellant has shown good cause for an untimely 

filing, the Board will consider the length of the delay, the reasonableness of his

excuse and his showing of due diligence, whether he is proceeding pro se, and 

whether he has presented evidence of the existence of circumstances beyond his

control that affected his ability to comply with the time limits or of unavoidable 

casualty or misfortune which similarly shows a causal relationship to his inability 

to timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 

62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). We have considered 

the timeliness arguments that this pro se appellant submitted along with his

petition for review, and we find good cause to waive the filing deadline. PFR 

File, Tab 1 at 3-4.

¶7 Regarding the initial decision, we find that the administrative judge did not 

abuse his discretion by dismissing the appeal for failure to prosecute. See 

Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 10 (2011). Nevertheless, the 

record on review contains new and material evidence showing that the appellant 

has now exhausted his USERRA claim before DOL and that his Board appeal is 
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now ripe for adjudication. 2 PFR File, Tab 1 at 5-7, Tab 3 at 19; see 38 U.S.C. 

§ 4324(b) (if an individual files a USERRA complaint with DOL, he must exhaust 

those proceedings before filing his Board appeal); see also Gossage v. 

Department of Labor, 118 M.S.P.R. 455, ¶ 8 (2012) (if an appellant first seeks 

corrective action from DOL, then the Board lacks jurisdiction over his USERRA 

appeal until he receives notification that DOL was unable to resolve the 

complaint); Muse v. U.S. Postal Service, 82 M.S.P.R. 164, ¶ 13 (1999). If the 

administrative judge had the benefit of this information below, he would have 

dismissed the appeal for lack of jurisdiction without prejudice to refiling, pending 

the outcome of the DOL exhaustion process. See Goldberg v. Department of 

Homeland Security, 104 M.S.P.R. 215, ¶¶ 13-14 (2006) (finding adjudication of a 

USERRA claim was premature in the absence of notification from DOL that it 

was unable to resolve the appellant’s complaint). The appellant alleged below 

that he has an obligation to perform duty in a uniformed service of the United 

States and that the agency denied him employment due to this obligation. IAF, 

Tab 1 at 5. This, in conjunction with the new evidence showing that he 

completed the DOL exhaustion process, is sufficient to establish Board 

jurisdiction over the appeal. See Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, 

¶ 11 (2009).

 2 DOL issued its closeout letter on December 22, 2014, PFR File, Tab 3 at 19, and the 

appellant presumably did not receive it until 5 business days later, which was 

December 31, 2014—the same day that the administrative judge issued his initial 

decision, see 5 C.F.R. § 1201.4(l) (absent evidence to the contrary, documents filed by 

mail are presumed to have been mailed 5 days earlier). We disagree with the agency 

that the closeout letter indicates that DOL reversed its “initial conclusion” after 

receiving the agency’s response to the “preliminary” letter. PFR File, Tab 3 at 6. 

There is nothing about the November 18, 2014 letter to indicate that it was “initial” or 

“preliminary.” PFR File, Tab 1 at 5-7. Nor is there anything about the December 22, 

2014 letter to indicate that DOL reversed itself. PFR File, Tab 3 at 19. Unlike the 

Office of Special Counsel, which can file a petition for corrective action with the 

Board, DOL must rely on the agency’s cooperation to correct USERRA violations. See

20 C.F.R. § 1002.290 (reflecting that DOL lacks authority to order agency compliance 

with USERRA). Because the agency in this case declined to cooperate, there was little 

that DOL could do but close its file.
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ORDER

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