UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

99 M.S.P.R. 619 

JAMES CLAVIN, 

Appellant, 

v. 

UNITED STATES POSTAL SERVICE, 

Agency. 

DOCKET NUMBER 

PH-3443-04-0201-I-1 

DATE: September 14, 2005 

Ian Stuart, Esquire, Philadelphia, Pennsylvania, for the appellant. 

Maureen Briody, Esquire, New York, New York, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER 

¶1 The appellant has filed a timely petition for review of an initial decision 

that dismissed the appeal of the denial of Office of Workers’ Compensation 

Programs (OWCP) benefits for lack of jurisdiction and dismissed his claim under 

the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA) for failure to state a claim for which relief could be granted. For the 

reasons discussed below, we GRANT the petition for review, VACATE the initial 

decision, and REMAND the matters raised for further adjudication. See 5 C.F.R. 

§ 1201.117. 
2

BACKGROUND 

¶2 The appellant filed an appeal with the Board that did not specifically 

identify the subject matter of the appeal. Along with his appeal form, he 

submitted an addendum, his military discharge documents, a hand-written list of 

“violations” dating back to approximately 1994, and a December 19, 2003 Office 

of Workers’ Compensation Programs (OWCP) decision denying his claim for 

compensation. Initial Appeal File (IAF), Tab 1. The administrative judge issued 

an acknowledgment order identifying the matter being appealed as the denial of 

OWCP benefits and ordering him to file evidence and argument to show that the 

appeal is within the Board’s jurisdiction. IAF, Tab 2. In response, the appellant 

asserted that the Board has jurisdiction under USERRA, based on a serviceconnected injury incurred in 1970 which was reinjured in a work-related event in 

1985. IAF, Tab 4. The agency filed a motion to dismiss for lack of jurisdiction. 

IAF, Tab 5. The administrative judge issued an order on jurisdiction informing 

the appellant of certain of the requirements for a USERRA appeal and advising 

him to file evidence and argument to show that either he chose not to file a 

complaint with the Secretary of Labor or that he did so and procedures before the 

Secretary had been exhausted. IAF, Tab 6. The appellant responded that he had 

filed a complaint with the Department of Labor and received an adverse decision 

on or about December 19, 2003. IAF, Tab 7. The appellant filed another 

submission in response to the jurisdictional question, stating that the basis of his 

complaint is not solely disability discrimination and, that after his separation 

from active duty, the agency withheld pay and other benefits, and forced him to 

work beyond his limits, which he refused to do. IAF, Tab 8. The administrative 

judge issued an initial decision that dismissed the appeal for lack of jurisdiction 

and for failure to state a claim under USERRA. IAF, Tab 11. 

¶3 On petition for review, the appellant asserts that, after his separation from 

active military duty, the agency denied him health benefits and pension or 

retirement benefits, denied seniority, discriminated against him on the basis of 
3

disability by refusing to accommodate his limitations, and denied him 

employment. Petition for Review File (PFRF), Tab 1. The agency has timely 

responded. PFRF, Tab 3. 

ANALYSIS 

¶4 The Board's jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The administrative 

judge correctly found that the Board lacks jurisdiction to review a denial of 

OWCP benefits. Lee v. Department of Labor, 76 M.S.P.R. 142, 146 (1997). 

With regard to the appellant’s USERRA claim, however, we find that the 

appellant is entitled to another opportunity to clarify the basis for this appeal. 

¶5 There are two types of cases that arise under USERRA: (i) Reemployment 

cases, in which the appellant claims that an agency has not met its obligations 

under 38 U.S.C. §§ 4312 - 4318 following the appellant’s absence from civilian 

employment to perform uniformed service; and (ii) what have come to be known 

by the shorthand label as “discrimination” cases, in which the appellant claims 

that an agency has committed one of seven actions that are prohibited if 

motivated by one of nine enumerated reasons. 38 U.S.C. § 4311(a), (b).1

 The 

 

1

 The following are the specific prohibitions in USERRA that collectively have come to 

be known by the catch-all term “discrimination”: 

(a) A person who is a member of, applies to be a member of, performs, 

has performed, applies to perform, or has an obligation to perform 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 membership, application 

for membership, performance of service, application for service, or 

obligation. 

(b) An employer may not discriminate in employment against or take any 

adverse employment action against any person because such person 

(1) has taken an action to enforce a protection afforded any person under 

this chapter, (2) has testified or otherwise made a statement in or in 
4

Board’s jurisdiction over both reemployment cases and so-called “discrimination” 

cases is based on 38 U.S.C. § 4324(b), (c). 

¶6 On the merits, reemployment cases and discrimination cases differ in two 

important ways. First, an individual’s rights under the reemployment provisions 

of USERRA, 38 U.S.C. §§ 4312 – 4318, do not depend on the motivation for an 

agency’s action (or inaction), whereas an essential element of a discrimination 

claim is that the contested agency decision was based on an improper motivation, 

38 U.S.C. § 4311(a), (b). Second, in a reemployment case the agency bears the 

burden of proving that it met its statutory obligations, pursuant to 5 U.S.C. 

§ 7701(c)(1)(B). See DePascale v. Department of the Air Force, 59 M.S.P.R. 

186, 190 (1993); Britton v. Department of Agriculture, 23 M.S.P.R. 170, 172-73 

(1984).2

 By contrast, in a discrimination case the appellant bears the burden of 

proof on the merits, and if that burden is met the agency may avoid relief by 

showing that it would have taken the same action even in the absence of the 

improper motivation. 38 U.S.C. § 4311(c); Sheehan v. Department of the Navy, 

240 F.3d 1009, 1013 (Fed. Cir. 2001). 

¶7 In the present case, the administrative judge’s order on jurisdiction referred 

only to USERRA’s prohibition on “discrimination.” IAF, Tab 6. In his response 

on jurisdiction below and in his petition for review, however, the appellant 

 

connection with any proceeding under this chapter, (3) has assisted or 

otherwise participated in an investigation under this chapter, or (4) has 

exercised a right provided for in this chapter. The prohibition in this 

subsection shall apply with respect to a person regardless of whether that 

person has performed service in the uniformed services. 

38 U.S.C. § 4311. 

2

 The DePascale and Britton cases arose under pre-USERRA reemployment laws at 

38 U.S.C. §§ 2021 – 2024 (1982 ed. & 1988 ed.) and were within the Board’s 

jurisdiction under OPM’s rules at 5 C.F.R. Part 353. In 1994 USERRA reenacted (with 

modification) the reemployment laws, 38 U.S.C. §§ 4312 – 4318; created a cause of 

action for “discrimination,” 38 U.S.C. § 4311; and made the Board’s jurisdiction over 

both reemployment and “discrimination” cases statutory, 38 U.S.C. § 4324(b), (c). 
5

alleges that the agency violated his reemployment rights following separation 

from active-duty military service when he states that, after being discharged from 

active duty in 2002, he “returned to his place of employment to face a number of 

directly specific reemployment rights,” namely, “[d]enial of health benefits,” 

“[d]enial of seniority,” “[n]o credit for pension/retirement,” “[n]ot allowing [me] 

to work within my limitations,” and [d]enying . . . employment because of 

service-connected disability.” The appellant might also be attempting to raise a 

discrimination claim. See PFRF, Tab 1; IAF, Tab 8. The appellant was entitled 

to notice of the elements of USERRA jurisdiction and an opportunity to establish 

jurisdiction. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-

44 (Fed. Cir. 1985). Since he did not receive such notice and opportunity, the 

appeal must be remanded.3

¶8 We also discern another possible basis for Board jurisdiction, which the 

administrative judge did not address. Although the appellant did not identify any 

agency action as the subject of his appeal on the appeal form, in his addendum he 

alleged that in 1985 he suffered a work-related injury and that he unsuccessfully 

sought accommodation for his limitations from the agency. In October 2003, 

according to the appellant -- 

 

3

 We also clarify certain issues about which the appellant and his representative appear 

to be confused. First, when the administrative judge ordered the appellant to submit a 

statement indicating whether he chose to file his USERRA complaint directly with the 

Board or to seek the assistance of the Secretary of Labor as provided by 38 U.S.C. 

§ 4322, the appellant responded that he filed a complaint with the Secretary and 

received an adverse decision on or about December 19, 2003. That decision, however, 

concerns his OWCP claim and is not a decision regarding the efforts of the Secretary 

with respect to a USERRA claim. On remand, the appellant should clarify whether he 

has sought the assistance of the Secretary in this matter. Also, as the administrative 

judge stated, USERRA does not provide the Board with jurisdiction over claims of 

disability discrimination. Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 14 (2003). 

To the extent that the appellant is alleging that the agency discriminated against him 

because of his disability, the Board has no jurisdiction over that claim. 
6

the agency asked the petitioner to go beyond his limitation and he 

refused so he was terminated because ‘they did not have work’ for 

him. This situation has persisted for more than 10 years and has 

subjected the petitioner to emotional harm and other damages. ... 

Petitioner filed a complaint with the U.S. Department of Labor but 

was denied on December 19, 2003 (Exhibit C). The petitioner 

requests that the Board grant his request to be transferred to a job 

that doesn’t exacerbate his injury and that reparations be made for 

the emotional harm and other damages he suffered, including 

attorney fees. 

IAF, Tab 1. His hand-written supplement lists numerous “violations” that 

generally pertain to his work-related injury and his attempts to receive an 

accommodation like light duty. IAF, Tab 1, Subtab B. According to the OWCP 

decision, the appellant alleged that on October 30, 2003, his supervisor ordered 

him to leave the work site because there was no more work for him within his 

limitations. IAF, Tab 1, Subtab C. Arguably, the allegation in the addendum and 

the language of the OWCP decision could be read as allegations that the agency 

constructively suspended him. An employee’s absence for more than 14 days that 

results in a loss of pay may be a constructive suspension appealable to the Board 

under 5 U.S.C. §§ 7512(2) and 7513(d). Constructive suspension claims may 

arise in two situations. The first occurs when an agency places an employee on 

enforced leave pending an inquiry into his ability to perform. In that situation, 

the key question is whether the agency or the employee initiated the absence. 

The second situation arises when an employee who was absent from work for 

medical reasons requests to return to work with altered duties, and the agency 

denies the request. If the agency is obligated by policy, regulation, or contract to 

offer available light-duty work to the employee, his continued absence may 

constitute a suspension appealable to the Board if the agency fails to offer him 

available light-duty work. Hardy v. U.S. Postal Service, 94 M.S.P.R. 539, ¶ 12 

(2003). 

¶9 The appellant did not specifically describe the circumstances under which 

he left work in October 2003, or state that he was no longer working, when he 
7

filed his appeal. Nevertheless, his allegations were sufficient to require the 

administrative judge to issue a notice informing him of the elements of a 

constructive suspension appeal. See Burgess, 758 F.2d at 643-44. The 

administrative judge’s order on jurisdiction did not include notice regarding a 

constructive suspension appeal. IAF, Tab 6. Nor does the agency’s motion to 

dismiss the appeal afford the appellant notice of the issue, or clarify whether he 

has been at work, although it includes in its summary of the appellant’s 

allegations of fact that he alleged that he was terminated in October 2003. IAF, 

Tab 5. The appellant’s response states that he was coerced to work beyond his 

limits and refused and that “[m]anagement has removed [him] from performing 

the functions that other injured employees perform.” IAF, Tab 8. The 

appellant’s allegations, while certainly lacking in specificity, were enough to 

require the administrative judge to advise him of what must be shown or alleged 

to establish jurisdiction over a constructive suspension action. See Kapica v. U.S. 

Postal Service, 95 M.S.P.R. 556, ¶ 8 (2004) (despite references in the parties’ 

submissions to the appellant’s absence from work, receipt of OWCP benefits and 

his seeking to return to work, the administrative judge did not put him on notice 

of the jurisdictional elements of a restoration claim). We find it necessary to 

remand this appeal to afford the appellant an opportunity to submit evidence and 

argument to show that the Board has jurisdiction over his appeal as a constructive 

suspension. 

¶10 Because of her disposition of the appeal, the administrative judge did not 

determine whether it was timely filed. Although there is no time limit for filing 

an appeal under USERRA, Tierney v. Department of Justice, 89 M.S.P.R. 354, 

356, ¶ 6 (2001), the timeliness of a constructive suspension appeal is at issue. If 

the administrative judge finds that the Board has jurisdiction over a constructive 

suspension, she must further determine whether such an appeal was timely filed. 
8

ORDER 

¶11 Accordingly, we REMAND this appeal for further adjudication. The 

administrative judge shall issue explicit notice of the elements of the two types of 

USERRA cases, and also explicit notice of the elements of a constructive 

suspension. She shall also notify the parties of the appellant’s burden of proof to 

establish that a constructive suspension appeal was timely filed. After affording 

the parties an opportunity to submit evidence and argument in response to such 

notice, and affording the appellant a hearing if warranted, the administrative 

judge shall issue a new initial decision. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board