Better late than never

A recent case decided by the Merit Systems Protection Board underscores the importance of leaving no stone unturned when it comes to your own defense.

The case involved Robert Holmes, a GS-7 accounting technician for the Justice Department. On Sept. 30, 2000, the department fired Holmes based on his "physical/medical inability to perform the duties of [his] position." Justice officials advised Holmes that he had a right to appeal to the MSPB within 30 days after the effective date of his removal. But Holmes waited more than five months after the expiration of that deadline before appealing the decision.

In response to the administrative judge's demand for an explanation for the late filing, Holmes said that Justice officials had discriminated against him because of his military reserve duty and that the department was in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). The administrative judge dismissed the appeal. Holmes then appealed to the full board.

The board found that the administrative judge properly dismissed the appeal because Holmes failed to prove that he suffered from a mental or physical condition of such severity and nature that he was prevented from meeting the deadline or seeking an extension.

The board noted, however, that if Holmes had filed his appeal in a timely manner, the administrative judge could have adjudicated his USERRA complaint. The board then decided to determine whether its USERRA jurisdiction provided an alternative basis for considering Holmes' allegation that Justice's action violated the act.

The board found that the administrative judge erred by not considering Holmes' allegation that the department's removal action was in violation of the act as a new appeal. The board then found that if an appellant alleges that an agency discriminated against him on the basis of his status as a veteran in violation of the act, the USERRA appeal is always timely filed because there is no time limit to file a USERRA appeal.

Accordingly, the board remanded Holmes' appeal to allow him to establish jurisdiction under the act.

The requirements of that jurisdictional test are that Holmes show performance of duty in a uniformed service of the United States, allege a loss of a benefit of employment and allege that the benefit was lost due to the performance of duty in the uniformed service.

If Holmes establishes the board's jurisdiction, the administrative judge should adjudicate whether Justice violated USERRA.

If you're going to do battle with your agency and file an appeal with the MSPB, file your appeal with full force. The board will closely scrutinize your allegations, and if there is any validity to any of your claims, one of them just might win your appeal for you. But you'll never know unless you try.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at milt.zall@verizon.net.

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