U.S. Court of Appeals, Federal Circuit
March 05, 1999
JOE M. HEREFORD, PETITIONER,
TENNESSEE VALLEY AUTHORITY, RESPONDENT.
Before Michel, Plager, and Schall, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Joe M. Hereford appeals from a decision of the Merit Systems Protection Board ("MSPB"), No. AT-3443-98-0200-I-1 (Dec. 18, 1997), which dismissed his case for lack of jurisdiction. The MSPB concluded that it lacked the authority to review the Tennessee Valley Authority ("TVA") Retirement System ("TVARS") Board's denial of service credit to Mr. Hereford. The MSPB's decision became final on July 15, 1998 when the full MSPB denied review. Because we conclude that the MSPB has jurisdiction over Mr. Hereford's claim against the TVA, the MSPB's dismissal of Mr. Hereford's case was not in accordance with law, see 5 U.S.C. § 7703(c)(1) (1994); therefore, we reverse and remand the case for further proceedings.
On appeal, Mr. Hereford claims that the TVARS rules, which deny him TVARS credit for military service because he is eligible for a military pension for the same service, violate 10 U.S.C. § 12736 (1994) and the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4344 (1994 & Supp. II 1996). The MSPB stated two grounds for dismissing his claim for lack of jurisdiction. First, because the TVARS is an independent association outside of the MSPB's jurisdiction, the MSPB lacks the authority to review the TVARS Board's actions. See Hereford v. Tennessee Valley Auth., No. AT-3443-98-0200-I-1, slip op. at 2 (M.S.P.B. Dec. 18, 1997) (citing Gregory v. Tennessee Valley Auth., 27 M.S.P.R. 170, 171 (1985)). Second, the MSPB found that Mr. Hereford failed to allege a valid USERRA claim. See id.
The MSPB's jurisdiction is limited. See 5 U.S.C. § 7702(a) (1994); 5 C.F.R. § 1201.3 (1997). Petitioner bears the burden of proving MSPB jurisdiction. See 5 C.F.R. § 1201.56(a)(2) (1997). Because Mr. Hereford has not demonstrated that the MSPB has appellate jurisdiction over an alleged violation of 10 U.S.C. § 12736, we agree with the MSPB's Conclusion that it lacks jurisdiction over this part of Mr. Hereford's claim. See Noble v. Tennessee Valley Auth., 892 F.2d 1013 (Fed. Cir. 1989) (en banc) (concluding that the MSPB lacked jurisdiction over Noble's claim that the TVA violated his veteran's preference reemployment rights because he failed to cite any "law, rule, or regulation" authorizing an appeal to the MSPB).
On the other hand, we conclude that the MSPB has jurisdiction over Mr. Hereford's USERRA claim against the TVA, the only named defendant. USERRA provides Mr. Hereford the right to submit a "complaint against a Federal executive agency . . . under this subchapter directly to the Merit Systems Protection Board." 38 U.S.C. § 4324(b); see also id. § 4324(c)(1) (requiring the MSPB to adjudicate any complaint brought before the Board pursuant to subsection (b)); Yates v. Merit Sys. Protection Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). In Dodd v. Tennessee Valley Authority, 770 F.2d 1038, 1040 (Fed. Cir. 1985), we noted that the TVA is an agency in the executive branch, see 5 U.S.C. § 105 (1994) (including Government corporations in the definition of "Executive agency"), because the TVA was created as a Government corporation, see 16 U.S.C. §§ 831 & 831r (1994); see also Boehms v. Crowell, 139 F.3d 452, 455 n.1 (5th Cir. 1998). Consequently, the MSPB erred in dismissing Mr. Hereford's USERRA claim for lack of jurisdiction because Mr. Hereford properly submitted to the MSPB a complaint against the TVA, a federal executive agency.
On the state of the record before us, we need not determine whether the TVARS is an independent association outside of the MSPB's jurisdiction. The MSPB reached that Conclusion solely on the basis of Gregory v. Tennessee Valley Authority, 27 M.S.P.R. 170, 171 (1985). The MSPB will want to consider evidence on the alleged independence of the TVARS from the TVA upon remand and make a determination accordingly.