Kelly Stephen Jennings v. Social Security Administration
2016 MSPB 31
| MSPB | 2016Background
- Jennings, an SSA administrative law judge, was removed after an agency action (Jennings I) that found he concealed active-duty military service and improperly received dual pay; the Board and the Federal Circuit affirmed the removal.
- While Jennings I was pending, SSA retroactively changed his status to leave without pay (LWOP) for the active-duty period and assessed a $427,784 salary overpayment; the DAB upheld the overpayment.
- Jennings filed a separate USERRA appeal (this case) alleging the agency denied him reemployment/continuation rights, improperly converted approved leave to LWOP, and created an overpayment without using Board procedures under 5 U.S.C. § 7521.
- The administrative law judge (ALJ) in this USERRA appeal: (1) held res judicata barred Jennings’ request for reinstatement as an ALJ; (2) found some USERRA violations in how SSA calculated/credited his leave and ordered corrective personnel actions and debt recalculation; and (3) rejected other USERRA and equitable relief claims and denied fee relief pending final decision.
- On Board review, the Board affirmed the res judicata holding, vacated most of the ALJ’s decision, and remanded to decide whether the agency action triggered protections under 5 U.S.C. § 7521 (i.e., whether the retroactive LWOP constituted a covered action requiring Board-determined good cause).
Issues
| Issue | Jennings' Argument | Social Security Administration's Argument | Held |
|---|---|---|---|
| Whether Jennings’ USERRA-based claim for reinstatement was barred by res judicata | His USERRA defense to removal was not litigated in Jennings I and thus should be reconsidered | Prior decision on removal was final; USERRA claims could have been raised previously | Res judicata bars reconsideration of reinstatement claim (affirmed) |
| Whether the agency’s retroactive LWOP and overpayment calculation violated USERRA | Retroactive LWOP and failure to credit leave were USERRA violations warranting corrective action and debt recalculation | Agency acted consistently with leave rules and DAB’s overpayment finding; not a USERRA violation or outside Board jurisdiction | ALJ’s findings on leave credit/overpayment were vacated for further adjudication; Board did not resolve USERRA merits on those points now |
| Whether the agency’s retroactive LWOP/recoupment constituted a § 7521 action (suspension/reduction) requiring Board good-cause proceedings | SSA’s retroactive LWOP was effectively a suspension/reduction in pay that should have been handled under § 7521 by filing a complaint with the Board | DAB resolved overpayment and SSA relied on DAB; Board review of debt and § 7521 applicability unnecessary | Board remanded for ALJ to decide (1) whether § 7521 applies and (2) if so, whether good cause exists (vacating other findings pending that inquiry) |
| Whether Board should reopen Jennings I to litigate USERRA affirmative defense | ALJ’s USERRA findings and new LWOP evidence warrant reopening to prevent manifest injustice and allow a USERRA defense | Finality and procedural posture; Jennings failed to timely and properly raise USERRA in Jennings I | Reopening denied: request untimely and no extraordinary circumstances; finality outweighs reopening |
Key Cases Cited
- Jennings v. Social Security Administration, [citation="407 F. App'x 467"] (Fed. Cir.) (affirming Board decision sustaining removal)
- Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir.) (USERRA burden-shifting framework: plaintiff shows military status was motivating factor; agency must show same action would have occurred absent that status)
- Hornback v. United States, [citation="85 F. App'x 758"] (Fed. Cir.) (res judicata does not require prior judgment to expressly address every claim that could have been raised)
- Hauschild v. United States, 53 Fed. Cl. 134 (2002) (failure to plead affirmative defenses waives them under Rule 8(c))