David Miller, a Postal Service employee, filed an appeal under the Uniformed Services Employment and Reemployment Rights Act (USERRA) alleging that the Postal Service improperly charged him military leave for his absences on non-workdays. Without a hearing, the AJ dismissed the appeal for failure to state a claim because the appellant was a Postal Service employee and so not covered by the military leave provisions of 5 U.S.C. § 6323.

The MSPB agreed that Postal Service employees are excluded from coverage of section 6323.  However, the Postal Service had a policy in effect at the relevant time that was the equivalent of section 6323 and the MSPB has jurisdiction to enforce employee rights derived from agency rules, regulations, and collective bargaining agreements.  Accordingly, taking as true the appellant’s allegations, he did state a claim upon which relief may be granted.  As the appellant was not permitted to engage in discovery prior to dismissal of the claim and that he was seeking relevant evidence from a third party, the Defense Finance and Accounting Service, the MSPB dismissed the appeal without prejudice to refiling, with no deadline, since there is no deadline for filing claims under USERRA.

David Miller vs. U.S. Postal Service (March 7, 2007-PDF)

Don Cheney
Auburn, WA