Fedweek Legal

The Merit Systems Protection Board recently held that the Federal Mediation and Conciliation Service was within its authority to disregard veterans’ preference laws in considering applicants for a mediator position. In Young v. Federal Mediation and Conciliation Service, CH-3443-01-0576-I-1 (Nov. 1, 2002), the appellant, a preference-eligible veteran, applied for a mediator position with the FMCS and was not selected. Mr. Young appealed the agency’s decision not to select him, claiming it violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The administrative judge dismissed Mr. Young’s appeal, stating that Mr. Young failed to cite a veterans’ preference statute in his appeal.

The Board found that the administrative judge was incorrect in holding Mr. Young to such strict requirements. The Board held that Mr. Young’s appeal sufficiently stated his reasons for seeking appeal. The Board found that petitioners who do not have legal counsel, or pro se petitioners, “are not expected to frame issues with the precision of a common law pleading.” Roche v. United States Postal Service, 828 F.2d 1555, 1558 (Fed Cir. 1987). The Board also looked to the legislative history of veterans’ preference laws, which reflects the Senate’s concern that the system was “confusing, from a veteran’s standpoint.” S. Rep. No. 105-340 at 15, 17 (1998). Because Congress intended the veterans’ preference law to be user-friendly, the Board held that Mr. Young’s identification of USERRA as the basis of his appeal was sufficient.

Although the Board upheld Mr. Young’s appeal as sufficient, despite his failure to specifically mention the veterans’ preference laws, the Board found that the agency was authorized to disregard the veterans’ preference laws in considering applicants for a mediator position. The Board held that according to 29 U.S.C.