C.F.R. » Title 5 » CHAPTER II—MERIT SYSTEMS PROTECTION BOARD › SUBCHAPTER A—ORGANIZATION AND PROCEDURES › PART 1208—PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT › Subpart B—USERRA Appeals

5 C.F.R. § 1208.11

Choice of procedure under USERRA; exhaustion requirement

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(a) Choice of procedure. An appellant may file a USERRA appeal directly with the Board under this subpart or may file a complaint with the Secretary of Labor under 38 U.S.C. 4322.

(b) Exhaustion requirement. If an appellant files a complaint with the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file a USERRA appeal with the Board until the Secretary notifies the appellant in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint. An appellant who seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint with the Secretary under 38 U.S.C. 4322 is not subject to the exhaustion requirement of this paragraph.

(c) Appeals after exhaustion of Department of Labor procedure. When an appellant receives notice from the Secretary of Labor in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint, the appellant may file a USERRA appeal directly with the Board or may ask the Secretary to refer the complaint to the Special Counsel. If the Special Counsel agrees to represent the appellant, the Special Counsel may file a USERRA appeal directly with the Board. If the Special Counsel does not agree to represent the appellant, the appellant may file a USERRA appeal directly with the Board.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]
Notes of Decisions
Cited in 7 cases (5 in the last 5 years), 2015–2024 · leading case: Peter May v. Dep't of Just., No. NY-3443-16-0303-I-1 (MSPB Jan. 26, 2023).
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Peter May v. Dep't of Just., No. NY-3443-16-0303-I-1 (MSPB Jan. 26, 2023). “See 5 C.F.R. §§ 1208.11 -.16. 3 NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision.”
Sean Nikkila v. Dep't of Energy, No. SF-3330-17-0016-I-1 (MSPB Nov. 21, 2022). “5 C.F.R. § 1208.11 (a); see Graham v. Commodity Futures Trading Commission, 105 M.”
Jeffrey Makosky v. United States Postal Serv., No. SF-0752-17-0132-I-1 (MSPB Apr. 17, 2023). “5 C.F.R. § 1208.11 (b); ID at 12 n.8. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions.”
David Hendy v. Dep't of Vets. Affairs, No. CH-4324-18-0228-I-1 (MSPB May 2, 2024). “455 , ¶ 8; 5 C.F.R. § 1208.11 (b). USERRA does not provide for exhaustion of the complaint before DOL as a matter of time; it instead requires notification from DOL that the Secretary’s efforts did not resolve the appellant’s complaint.”
Gloria Kirk v. Dep't of Vets. Affairs, No. AT-0752-19-0448-I-1 (MSPB May 28, 2024). “§ 4324 ; 5 C.F.R. §§ 1208.11 (explaining the choice of procedure under USERRA), 1208.”
Benjamin Jackson Knight v. Dep't of Vets. Affairs (MSPB 2015). “2009); 5 C.F.R. § 1208.11 (a)-(b). 10 conduct discovery and to submit evidence and argument regarding the USERRA claims.”
Shawn Gonzalez v. Dep't of Agric. (MSPB 2015). “IAF, Tab 3 at 5; see 5 C.F.R. § 1208.11 (b) (if an appellant first files a USERRA complaint with the Secretary of Labor pursuant to 38 U.”
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