UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARVIN CLEVELAND BRYAN, JR.,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-3443-17-0660-I-1

DATE: July 12, 2023

THIS ORDER IS NONPRECEDENTIAL1

Marvin Cleveland Bryan, Jr., New Rochelle, New York, pro se.

Christina Knott, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed his appeal regarding the agency’s rescinding its job offer for lack of 

jurisdiction. For the reasons discussed below, we GRANT the appellant’s 

petition for review, AFFIRM the initial decision to the extent that it found that 

the appellant failed to establish jurisdiction over this appeal as a cancellation of a 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

promotion or appointment, MODIFY the initial decision to find that the appellant 

failed to nonfrivolously allege that the agency took a suitability action because he 

did not apply for a covered position, and REMAND the case to the regional office 

for further adjudication of the appellant’s claim under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (codified as amended at 

38 U.S.C. §§ 4301-4335) (USERRA) in accordance with this Remand Order.

BACKGROUND

¶2 The appellant applied and was tentatively selected for the Attorney Advisor 

GS-0905-11 position with the Board of Veterans Appeals. Initial Appeal File 

(IAF), Tab 1 at 5, Tab 3 at 17, 21-26. He was notified of the tentative selection 

on June 20, 2017, but then the agency notified him on July 10, 2017, that it was 

rescinding its offer. IAF, Tab 3 at 17, 28. 

¶3 The appellant filed the instant appeal challenging the agency’s action and 

requested a hearing. IAF, Tab 1. He argued that he received a final offer of 

employment that the agency later withdrew and that the agency took a negative 

suitability action against him. IAF, Tab 3 at 12, Tab 10 at 4. He also asserted 

that the agency’s decision was due in part to his request for benefits because of 

his status as a combat-injured disabled veteran. IAF, Tab 3 at 11-12. Namely, he 

stated that the agency failed to offer him 8 hours per pay period of annual leave 

that he “gallantly earned while being injured in a combat zone” and that he 

notified the agency that, because he was a disabled veteran, he would require a 

special chair when he entered on duty. Id. at 5, 7-8. However, the administrative 

judge did not provide the appellant with notice of his jurisdictional burden under

USERRA. IAF, Tabs 9, 16.

¶4 Without holding the appellant’s requested hearing, the administrative judge 

issued an initial decision that dismissed the appeal for lack of jurisdiction. IAF, 

Tab 21, Initial Decision (ID). She found that the appellant failed to 

nonfrivolously allege that he was subjected to an appealable action in the form of 
3

cancelling a promotion or appointment because he failed to nonfrivolously allege 

that a promotion or appointment actually occurred and that, even if he were

appointed, he failed to nonfrivolously allege that the appointment was not 

revoked.2 ID at 7-9. She also found that the appellant failed to nonfrivolously 

allege that the agency took a suitability action. ID at 9-12. Further, she stated 

that the appellant had not raised claims regarding, among other things, his 

military service, which could have provided a basis for the Board’s jurisdiction. 

ID at 2 n.1. Finally, she found that, absent an otherwise appealable action, the 

Board lacked jurisdiction over any of the appellant’s other arguments. ID at 12.

¶5 The appellant has filed a petition for review, and the agency has responded 

in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We modify the initial decision to find that an attorney advisor is not a “covered 

position,” and thus the appellant did not nonfrivolously allege that the agency 

took a suitability action.

¶6 The appellant challenges the administrative judge’s finding that the agency 

did not take a suitability action against him, asserting that he was denied 

discovery and the opportunity to develop the record regarding this issue. PFR 

File, Tab 1 at 5-6; ID at 9-12; IAF, Tab 9 at 4-5. A “suitability action” is defined 

as a cancellation of eligibility, a removal, a cancellation of reinstatement 

eligibility, and a debarment. 5 C.F.R § 731.203(a). Title 5 of the Code of 

Federal Regulations, section 731.101(b) describes a “covered position” for 

purposes of defining a suitability action as “a position in the competitive service, 

a position in the excepted service where the incumbent can be noncompetitively 

 

2

The appellant does not challenge the finding that he failed to establish jurisdiction on 

the basis of a cancellation of a promotion or appointment, and we find no reason to 

disturb it. Petition for Review File, Tab 1; ID at 7-9; see Levy v. Department of Labor, 

118 M.S.P.R. 619, ¶ 10 (2012) (stating that to establish jurisdiction in an appeal from 

the cancellation of a promotion or appointment as a reduction in grade, the appellant 

must show that the promotion or appointment actually occurred).
4

converted to the competitive service, and a career appointment to a position in the 

Senior Executive Service.” Hudlin v. Office of Personnel Management, 

119 M.S.P.R. 61, ¶ 6 n.2 (2012). 

¶7 The position at issue is an excepted-service position that does not provide 

for noncompetitive conversion to the competitive service. IAF, Tab 3 at 24; see 

5 C.F.R. § 213.3102(d). Thus, it is not a “covered position” for purposes of 

determining whether a suitability action occurred. Cf. Hopper v. Office of 

Personnel Management, 118 M.S.P.R. 608, ¶ 7 n.3 (2012) (finding that, although 

the appellant was in the excepted service, he was a covered employee for 

purposes of a suitability action because he could be noncompetitively converted 

to the competitive service), aff’d, 786 F.3d 1340 (Fed. Cir. 2015). Accordingly, 

although we agree that the appellant has failed to nonfrivolously allege that he 

was subjected to a suitability action, we modify the initial decision to find that 

this was because he did not apply for a “covered position.”3

The appellant nonfrivolously alleged a cognizable claim under USERRA when he 

asserted that the agency rescinded its offer because he is a disabled veteran.

¶8 Under 38 U.S.C. § 4311(a), “[a] person who . . . has performed . . . service 

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. . . .” To establish 

jurisdiction over a USERRA discrimination claim under section 4311(a), the 

appellant must nonfrivolously 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 

 

3

The appellant asserts that the administrative judge improperly denied him discovery 

on whether the agency took a suitability action against him. PFR File, Tab 1 at 5-6. 

The Board will not find reversible error in an administrative judge’s discovery rulings 

absent an abuse of discretion that prejudiced the appellant’s substantive rights. See 

Jones v. Department of Health and Human Services, 119 M.S.P.R. 355, ¶ 18 (2013), 

aff’d, 544 F. App’x 976 (Fed. Cir. 2014). Because the appellant did not make a 

nonfrivolous allegation of jurisdiction as a matter of law, we find no such prejudice.
5

any benefit of employment; and (3) the denial was due to the performance of duty 

or obligation to perform duty in the uniformed service. 4 Gossage v. Department 

of Labor, 118 M.S.P.R. 455, ¶ 10 (2012). A claim of discrimination under 

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

nonfrivolous. Id. Allegations of discrimination based on one’s status as a 

disabled veteran are cognizable under USERRA. Kirkendall v. Department of the 

Army, 94 M.S.P.R. 70, ¶ 6 (2003). As discussed below, we find that the appellant 

has nonfrivolously alleged a cognizable claim under USERRA on the basis of his 

status as a disabled veteran. 

¶9 We find that the appellant performed military duty, that the agency was 

aware that he did so, and that the agency took an action covered under USERRA. 

The appellant asserted below, and on review, that he served in combat and he is a 

disabled veteran. PFR File, Tab 1 at 6; IAF, Tab 19 at 6. He also asserted that 

the agency was aware of his service because his application for employment 

included his DD Form 214/Certificate of Release or Discharge from Active Duty, 

30 percent disability letter, and combat-related special compensation letter. PFR 

File, Tab 1 at 6; IAF, Tab 19 at 6. Further, it is undisputed that this constitutes 

an action covered under 38 U.S.C. § 4311(a) because the statute specifies that an 

agency shall not deny initial employment. 

¶10 We also find that the appellant’s claim constitutes a nonfrivolous allegation 

that his status as a disabled veteran was the reason that the agency revoked his 

offer of employment. The appellant asserted that the agency discriminated 

against him when it rescinded its offer of employment on the basis of his status as 

a disabled veteran, his ability to earn 8 hours of leave because of his service, and 

his statement that he would need a special chair because of his status as a 

disabled veteran. PFR File, Tab 1 at 6; IAF, Tab 3 at 5, 7-8, 11-12. He also 

argues that the agency’s rescinded offer constitutes discrimination against a 

 

4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s). 
6

disabled veteran.

5

 Because the appellant argues that the agency took its action 

because of his status as a disabled veteran, we find that he has nonfrivolously 

alleged a claim under USERRA. See 38 U.S.C. § 4311(a); Davison v. Department 

of Veterans Affairs, 115 M.S.P.R. 640, ¶¶ 12-15 (2011) (finding Board 

jurisdiction over the appellant’s allegation of retaliation based on use of leave to

which he was entitled only due to his status as a disabled veteran); Kirkendall, 

94 M.S.P.R. 70, ¶ 6 (finding that the appellant’s claim that the agency did not 

select him for a position because of his status as a disabled veteran was a claim 

cognizable under USERRA). Because we find that the appellant has 

nonfrivolously alleged that the agency rescinded its offer because of his status as 

a disabled veteran, we find that he is entitled to a hearing on the merits of his 

USERRA claim. See Gossage, 118 M.S.P.R. 455, ¶ 10 (explaining that, once an 

appellant has established Board jurisdiction, he has an unconditional right to a 

hearing on the merits of his USERRA claim). Thus, we remand the appeal to 

provide the appellant with his requested hearing.

 

5

To the extent he is alleging disability discrimination as opposed to discrimination on 

the basis of his status as a disabled veteran, the Board lacks jurisdiction over this claim. 

See Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013) (finding 

that, to the extent the appellant claimed he was discriminated against based on a 

disability arising from his military service, such a claim was not cognizable under 

USERRA).
7

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.

/s/ for

Jennifer Everling

Acting Clerk of the Board