5 C.F.R. § 1208.12
Time of filing
Under chapter 43 of title 38, United States Code, there is no time limit for filing a USERRA appeal with the Board. However, the Board encourages appellants to file a USERRA appeal as soon as possible after the date of the alleged violation or, if a complaint is filed with the Secretary of Labor, as soon as possible after receiving notice from the Secretary in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint, or, if the Secretary has referred the complaint to the Special Counsel and the Special Counsel does not agree to represent the appellant, as soon as possible after receiving the Special Counsel's notice.
Notes of Decisions
Cited in 14
cases (12 in the last 5 years), 2007–2024 · leading case: Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007).
Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007). “That the YEOA, an employment statute, includes time limitations for filing with the Board whereas USERRA, an antidiscrimination statute, does not include any such limitation, further weighs in favor of concluding that tolling of the 15-day deadline is inappropriate.”
Durr v. MSPB, No. 20-2131 (Fed. Cir. Feb. 2, 2021). “§ 4327 (b); 5 C.F.R. § 1208.12 ; see also Erickson v.”
Sleevi v. MSPB, No. 21-1447 (Fed. Cir. July 9, 2021). “48 (citing 5 C.F.R. § 1208.12 ). 2 Mr. Sleevi waited until July 28, 2020—nearly thirteen years after he was notified of DHS’s rescission of his job offer and nearly twelve years after he received the DOL no- tice—to appeal to the Board.”
Sean Nikkila v. Dep't of Energy, No. SF-3330-17-0016-I-1 (MSPB Nov. 21, 2022). “6 (2009); 5 C.F.R. § 1208.12 . Because the appellant raises a USERRA claim for the first time on review, he has not yet received notice of the applicable standards and burdens of proof.”
Tiffany Kowalski v. Dep't of Vets. Affairs, No. CH-315H-18-0016-I-1 (MSPB July 8, 2022). “6 (2009); 5 C.F.R. § 1208.12 . An appellant need not invoke the USERRA statute itself.”
Tyrone Aull v. Dep't of Vets. Affairs, No. NY-752S-17-0223-I-1 (MSPB July 6, 2022). “6 (2009); 5 C.F.R. § 1208.12 . Therefore, we find that the appellant has raised a cognizable USERRA claim and forward the claim to the field office for docketing as a new appeal.”
Samuel Gordon v. United States Postal Serv., No. CH-315H-17-0418-I-1 (MSPB June 7, 2022). “5 C.F.R. §§ 1208.12 , 1208.11(a). NOTICE OF APPEAL RIGHTS 2 You may obtain review of this final decision.”
Reavy Cross v. Dep't of the Army, No. DC-0752-18-0077-I-1 (MSPB Sept. 1, 2023). “6 (2009); 5 C.F.R. § 1208.12 . Therefore, we find that the appellant has nonfrivolously alleged sufficient facts to support his claim that he was discriminated against on the basis of his prior military service in violation of USERRA, and forward the appellant’s USERRA claim to…”
Craig Wilbert v. Off. of Pers. Mgmt., No. PH-0841-21-0002-I-1 (MSPB Jan. 12, 2024). “5 C.F.R. § 1208.12 ; see Lee v. Department of Justice, 99 M.”
Gloria White v. Off. of Pers. Mgmt., No. AT-844E-17-0640-I-2 (MSPB Jan. 26, 2024). “281 , 282 (1984); 5 C.F.R. §§ 1208.12 , 1208.16. Accordingly, although the appellant does not reassert her USERRA claim on review, she can file a new USERRA appeal with the Atlanta Regional Office against OPM and/or her employing agency if she would like to pursue this claim.”
Cyril Oram v. Dep't of Com., No. AT-4324-20-0476-M-4 (MSPB June 10, 2024). “See 5 C.F.R. § 1208.12 (stating that there is no time limit for filing a USERRA appeal).”
Ashley Cody v. Dep't of Labor, No. AT-315H-23-0036-I-1 (MSPB July 19, 2024). “5 C.F.R. § 1208.12 . If the appellant believes she has been the victim of a violation of section 4311(a), she may file an appeal with the Board.”
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