ERIC J. SCHARF 

MANAGING COUNSEL 

EMPLOYMENT & LABOR LAW 

~ UNITED STIJTES J!ia POSTIJL SERVICE 

April28, 2014 

William D. Spencer 

Clerk of the Board 

Merit Systems Protection Board 

1615 M Street NW 

Washington, DC 20419 

Re: Postal Service Comments- MSPB's April 3, 2014 Notice of Proposed Rulemaking 

Mr. Spencer: 

The U.S. Postal Service submits this comment in response to the Merit Systems Protection Board's April 

3, 2014 Notice of Proposed Rulemaking, in which the Board invited public comment on its proposed 

revision of 5 C.F.R. part 1201. In general, the Postal Service supports the Board's effort to update its 

regulations and clarify the requirements for establishing jurisdiction over claims and appeals. 

Nevertheless, the Postal Service is concerned with the proposed revision's treatment of claims under the 

Uniformed Services Employment and Reemployment Rights Act (USERRA}, 38 U.S. C. § 4301-35. The 

Postal Service previously raised these concerns in its response to the Board's November 8, 2013 Notice 

of Proposed Rulemaking. As the Board's latest revision does not address those concerns, the Postal 

Service reiterates them here. 

The Postal Service understands the latest revision to assign USERRA retaliation and discrimination 

claims to proposed section 1201.57, while assigning USERRA reemployment claims to proposed section 

1201.56. Proposed section 1201.56(a)(3) states that it "does not apply to ... appeal[s] under [USERRA] 

in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. § 4311." On the other 

hand, proposed section 1201.57(a)(3) states that it applies to "appeal[s] under [USERRA] in which the 

appellant alleges discrimination or retaliation in violation of 38 U.S. C. 4311." These sections clearly 

assign USERRA retaliation and discrimination claims to section 1201.57, which requires claimants to 

prove matters of jurisdiction by non-frivolous allegations. The sections do not, however, explicitly mention 

USERRA reemployment claims under 38 U.S.C. §§ 4312, 4313, and 4315. Therefore, by implication, 

they leave those claims to section 1201.56(b), which requires claimants to prove "issues of jurisdiction" by 

a preponderance of the evidence. 1 This differentiation among USERRA claims is inconsistent with the 

Board's precedent. Currently, the Board treats all such claims alike for jurisdictional purposes. It permits 

claimants to establish jurisdiction through non-frivolous allegations, regardless of whether they allege a 

failure to reemploy, discrimination based on military service, or retaliation based on protected activity. 2 

1 See Belhumeur v. Department of Transp., 104 M.S.P .R. 408, 410 (2007) ("Under the maxim of statutory 

interpretation expressio unius est exclusio alterius, where, as here, a statute enumerates certain exceptions to a 

~eneral rule, other unenumerated exceptions are excluded."). 

Compare Silva v. Department of Homeland Sec., 112 M.S. P.R. 362, 370 (2009) (failure to reemploy), and Groom v. 

Department of the Army, 82 M.S.P.R. 221, 225 (1999) (same), with Davison v. Department of Veterans Affairs, 115 

475 L'ENFANT PLAZA SW 

WASHINGTON DC 20260-1150 

(202) 268-8540 

FAX: (202) 268-5402 
-2-

The proposed revision, however, would subject reemployment claims to a different burden of proof than 

discrimination and retaliation claims. 

The Board has not stated that it means to depart from its precedent in this manner, nor has it articulated 

any basis for doing so. No such basis is apparent in the governing statute. Title 38, section 4324 of the 

United States Code-which grants the Board jurisdiction over USERRA claims against federal 

agencies-does not distinguish between claims under§ 4311 and those under§§ 4312, 4313, and 4315.3 

Rather, the statute indicates that the Board should treat all such claims alike. It directs the Board to grant 

relief to a complainant if the Board determines that the agency "has not complied with the provisions of 

[USERRA] relating to the employment or reemployment of [the complainant] by the agency."4 Similarly, 

the Federal Circuit has implied that the Board should not distinguish between different types of USERRA 

claims, holding that the Board "shall adjudicate all USERRA claims brought before it" and "must 

administer the law as Congress wrote it."5 

Accordingly, the Postal Service urges the Board to amend its proposed revision to treat all USERRA 

claims alike for jurisdictional purposes. Alternatively, it encourages the Board to explain its decision to 

treat such claims differently. It also asks the Board to explain how the revision will affect 5 C.F.R. part 

1208, subpart B, which currently governs USERRA appeals before the Board. 

We appreciate the opportunity to comment on these matters. 

M.S.P.R. 640, 646 (2011) (retaliation), and Hammond v. Department of Veterans Affairs, 98 M.S. P.R. 359, 361 

~2005) (discrimination). 

See 38 U.S.C. § 4324(c)(1) ("The Merit Systems Protection Board shall adjudicate any [USERRA] complaint 

brought before the Board .... ")(emphasis added). 4 38 U.S.C. § 4324(c)(2). 5 Kirkendall v. Department of Anny, 479 F.3d 830, 844 (Fed. Cir. 2007) (emphasis in original) (hc;>lding that the Board 

could not, as a matter of administrative practice, deny USERRA claimants statutorily mandated hearings).