640 F. App'x 864
Fed. Cir.2016Background
- Corey Stoglin applied for an Equal Employment Manager position with the Hawaii Air National Guard (HANG) announced under 32 U.S.C. § 709; OPM reissued the announcement without veteran preference and did not refer Stoglin as among the best-qualified.
- Stoglin filed an MSPB appeal in July 2013, construed as a VEOA claim; he also raised USERRA allegations that his veteran/reservist status should have afforded a hiring preference.
- An administrative judge initially dismissed for lack of jurisdiction; the Board remanded, finding Stoglin’s USERRA allegations sufficient to invoke Board jurisdiction for further proceedings.
- On remand, the agency moved to dismiss; the administrative judge held that for National Guard technicians employed under 32 U.S.C. § 709, USERRA defines the “employer” as the State Adjutant General, so USERRA claims belong in state court rather than before the MSPB.
- The Board affirmed the dismissal, reasoning nondual National Guard civilian technicians are treated as state employees for USERRA purposes and that actions against a State Adjutant General may be brought in state court.
- Stoglin timely appealed to the Federal Circuit, which reviewed jurisdiction de novo and affirmed the Board’s dismissal for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over Stoglin’s USERRA claim | Stoglin argued USERRA protections were not applied and the Board should hear the claim | Agency argued USERRA treats the employer as the State Adjutant General for §709 technicians, so MSPB lacks jurisdiction | MSPB and Federal Circuit: no jurisdiction; USERRA claims against §709 technicians must be pursued against the State Adjutant General (state forum) |
Key Cases Cited
- Herman v. Dep’t of Justice, 193 F.3d 1375 (Fed. Cir. 1999) (standard of review: jurisdictional questions reviewed de novo)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir. 1998) (factual findings supporting jurisdiction are reviewed for substantial evidence)
- Consol. Edison Co. v. NLRB, 305 U.S. 197 (U.S. 1938) (definition of substantial evidence)
- Asatov v. Merit Sys. Prot. Bd., [citation="595 F. App'x 979"] (Fed. Cir. 2014) (National Guard technicians are state employers for USERRA enforcement; state courts provide the proper forum)