Coast Guard Reservist Loses USERRA Case at MSPB and Federal Circuit

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1 LAW REVIEW May 2018 Cast Guard Reservist Lses USERRA Case at MSPB and Federal Circuit By Captain Samuel F. Wright, JAGC, USN (Ret.) 2 Update n Sam Wright USERRA applies t the Federal Gvernment 1.2 USERRA frbids discriminatin 1.4 USERRA enfrcement 1.6 USERRA statute f limitatins 1.8 Relatinship between USERRA and ther laws/plicies Maki v. Department f Justice, Dcket N. SF I-1 (Merit Systems Prtectin Bard September 21, 2016), affirmed by United States Curt f Appeals fr the Federal Circuit March 16, 2018 (unpublished and nn-precedential). Kyle Maki is a Cast Guard Reservist, perhaps recently retired. His rank is nt shwn in the Merit Systems Prtectin Bard (MSPB) decisin. The Drug Enfrcement Administratin (DEA) hired him as a GS-7 Special Agent in DEA is part f the United States Department f Justice (DOJ). 1 I invite the reader s attentin t Yu will find mre than 1600 Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Unifrmed and Overseas Citizens Absentee Vting Act (UOCAVA), the Unifrmed Services Frmer Spuse Prtectin Act (USFSPA), and ther laws that are especially pertinent t thse wh serve ur cuntry in unifrm. Yu will als find a detailed Subject Index, t facilitate finding articles abut very specific tpics. The Reserve Officers Assciatin (ROA) initiated this clumn in I am the authr f mre than 1400 f the articles. 2 BA 1973 Nrthwestern University, JD (law degree) 1976 University f Hustn, LLM (advanced law degree) 1980 Gergetwn University. I served in the Navy and Navy Reserve as a Judge Advcate General s Crps fficer and retired in I am a life member f ROA. I have dealt with USERRA and the Veterans Reemplyment Rights Act (VRRA the 1940 versin f the federal reemplyment statute) fr 36 years. I develped the interest and expertise in this law during the decade ( ) that I wrked fr the United States Department f Labr (DOL) as an attrney. Tgether with ne ther DOL attrney (Susan M. Webman), I largely drafted the prpsed VRRA rewrite that President Gerge H.W. Bush presented t Cngress, as his prpsal, in February On 10/13/1994, President Bill Clintn signed int law USERRA, Public Law , 108 Stat The versin f USERRA that President Clintn signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is cdified in title 38 f the United States Cde at sectins 4301 thrugh 4335 (38 U.S.C ). I have als dealt with the VRRA and USERRA as a judge advcate in the Navy and Navy Reserve, as an attrney fr the Department f Defense (DOD) rganizatin called Emplyer Supprt f the Guard and Reserve (ESGR), as an attrney fr the United States Office f Special Cunsel (OSC), as an attrney in private practice, and as the Directr f the Service Members Law Center (SMLC), as a full-time emplyee f ROA, fr six years ( ). Please see Law Review (June 2015), cncerning the accmplishments f the SMLC. My paid emplyment with ROA ended 5/31/2015, but I have cntinued the wrk f the SMLC as a vlunteer. Yu can reach me by at SWright@ra.rg.

2 Maki was already a Cast Guard Reservist when he was hired by DEA in Thrughut his DEA career, he has needed t be away frm his DEA jb fr drills and annual training in the Cast Guard Reserve (USCGR), and all these perids f absence frm DEA are prtected by the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA). After the terrrist attacks f 9/11/2001, the demands upn the USCGR and ther Reserve Cmpnents 3 increased dramatically. Maki was away frm his DEA jb fr lng-term perids f active duty frm Octber 2001 t September 2002, January 2003 t Nvember 2003, February 2004 t Octber 2004, and July 2005 t September All thse perids are als prtected by USERRA. As I have explained in ftnte 2 and in Law Review (August 2015), Cngress enacted USERRA in 1994, as a lng-verdue rewrite f the Veterans Reemplyment Rights Act (VRRA), which was riginally enacted in The federal reemplyment statute has applied t the Federal Gvernment and t private emplyers since 1940, and it was amended in 1974 t make it apply t state and lcal gvernments as well. Althugh the reemplyment statute has applied t the Federal Gvernment since 1940, the VRRA lacked an enfrcement mechanism with respect t federal agencies as emplyers. One f the big imprvements made by USERRA in 1994 was t establish such an enfrcement mechanism, in sectin 4324, which reads as fllws: Enfrcement f rights with respect t Federal executive agencies (a) (2) (1) A persn wh receives frm the Secretary [f Labr] a ntificatin pursuant t sectin 4322(e) may request that the Secretary refer the cmplaint fr litigatin befre the Merit Systems Prtectin Bard. Nt later than 60 days after the date the Secretary receives such a request, the Secretary shall refer the cmplaint t the Office f Special Cunsel established by sectin 1211 f title 5. (A) If the Special Cunsel is reasnably satisfied that the persn n whse behalf a cmplaint is referred under paragraph (1) is entitled t the rights r benefits sught, the Special Cunsel (upn the request f the persn submitting the cmplaint) may appear n behalf f, and act as attrney fr, the persn and initiate an actin regarding such cmplaint befre the Merit Systems Prtectin Bard. (B) Nt later than 60 days after the date the Special Cunsel receives a referral under paragraph (1), the Special Cunsel shall-- 3 Our natin has seven Reserve Cmpnents. In rder f size, they are the USCGR, the Marine Crps Reserve (USMCR), the Navy Reserve (USNR), the Air Frce Reserve (USAFR), the Air Natinal Guard (ANG), the Army Reserve (USAR), and the Army Natinal Guard (ARNG).

3 (i) make a decisin whether t represent a persn befre the Merit Systems Prtectin Bard under subparagraph (A); and (ii) ntify such persn in writing f such decisin. (b) A persn may submit a cmplaint against a Federal executive agency r the Office f Persnnel Management under this subchapter directly t the Merit Systems Prtectin Bard if that persn-- (1) has chsen nt t apply t the Secretary fr assistance under sectin 4322(a); (2) has received a ntificatin frm the Secretary under sectin 4322(e); (3) has chsen nt t be represented befre the Bard by the Special Cunsel pursuant t subsectin (a)(2)(a); r (4) has received a ntificatin f a decisin frm the Special Cunsel under subsectin (a)(2)(b) declining t initiate an actin and represent the persn befre the Merit Systems Prtectin Bard. (c) (d) (1) The Merit Systems Prtectin Bard shall adjudicate any cmplaint brught befre the Bard pursuant t subsectin (a)(2)(a) r (b), withut regard as t whether the cmplaint accrued befre, n, r after Octber 13, A persn wh seeks a hearing r adjudicatin by submitting such a cmplaint under this paragraph may be represented at such hearing r adjudicatin in accrdance with the rules f the Bard. (2) If the Bard determines that a Federal executive agency r the Office f Persnnel Management has nt cmplied with the prvisins f this chapter relating t the emplyment r reemplyment f a persn by the agency, the Bard shall enter an rder requiring the agency r Office t cmply with such prvisins and t cmpensate such persn fr any lss f wages r benefits suffered by such persn by reasn f such lack f cmpliance. (3) Any cmpensatin received by a persn pursuant t an rder under paragraph (2) shall be in additin t any ther right r benefit prvided fr by this chapter and shall nt diminish any such right r benefit. (4) If the Bard determines as a result f a hearing r adjudicatin cnducted pursuant t a cmplaint submitted by a persn directly t the Bard pursuant t subsectin (b) that such persn is entitled t an rder referred t in paragraph (2), the Bard may, in its discretin, award such persn reasnable attrney fees, expert witness fees, and ther litigatin expenses. (1) A persn adversely affected r aggrieved by a final rder r decisin f the Merit Systems Prtectin Bard under subsectin (c) may petitin the United States Curt f Appeals fr the Federal Circuit t review the final rder r decisin. Such petitin and review shall be in accrdance with the prcedures set frth in sectin 7703 f title 5.

4 (2) Such persn may be represented in the Federal Circuit prceeding by the Special Cunsel unless the persn was nt represented by the Special Cunsel befre the Merit Systems Prtectin Bard regarding such rder r decisin. 4 Sectin 4311 f USERRA 5 makes it unlawful fr an emplyer (federal, state, lcal, r private sectr) t deny a persn a prmtin r benefit f emplyment (r initial emplyment r retentin in emplyment) based n the persn s membership in a unifrmed service, applicatin t jin a unifrmed service, perfrmance f unifrmed service, r applicatin r bligatin t perfrm service. Kyle Maki alleged that DEA discriminated against him, based n his USCGR service, in the fllwing ways: a. Appinting him as a GS-7 rather than a GS-9 in b. Transferring him frm San Dieg t Carlsbad in c. Transferring him t a nn-enfrcement psitin in September d. Subjecting him t a hstile wrk envirnment in e. Scring him unduly lw in the Special Agent Prmtin Prgram (SAPP) in 2012, making it impssible fr him t be prmted. f. Failing t select him fr the psitin f GS-13 Special Agent Pilt three times in g. Failing t select him fr the psitin f GS-13 Special Agent Plygraphist in h. Failing t select him fr the psitin f GS-13 Special Agent in the Internatinal Training Divisin in i. Failing t select him fr the psitin f GS-14 Grup Supervisr twice in As Thmas Jarrard and I explained in detail in Law Review (March 2017), it is necessary fr the plaintiff alleging a sectin 4311 vilatin t prve that his r her military service r bligatin was a mtivating factr in the emplyer s decisin t take an unfavrable persnnel actin. Mtivating factr can be prved by direct r circumstantial evidence, and it is nt necessary t have a smking gun r an admissin by the emplyer that it cnsidered the plaintiff s service r bligatin as a negative factr when making the emplyment decisin. If the plaintiff prves mtivating factr, the burden f prf shifts t the emplyer t prve (nt just say) that it wuld have made the same decisin, fr lawful reasns, in the absence f the prtected service r bligatin. As with all MSPB cases, Maki s case began befre an Administrative Judge (AJ) f the MSPB. The AJ cnducted a hearing and made findings f fact and cnclusins f law. The AJ cncluded that Maki had nt presented sufficient evidence t establish that his USCGR service was a mtivating factr in any f the unfavrable persnnel actins abut which Maki cmplained. Maki appealed t the MSPB itself, which affirmed the AJ s decisin n September 21, 2016, in a 4 38 U.S.C U.S.C

5 nn-precedential decisin. Maki filed a timely appeal with the United States Curt f Appeals fr the Federal Circuit. 6 On March 16, 2018, the Federal Circuit affirmed the MSPB, withut bthering t write a decisin. I did nt participate in r attend the trial r appeal, and I d nt have time t read the vluminus recrd. Accrdingly, I cannt say that the AJ, the MSPB, and the Federal Circuit erred in this case. I can say that Maki prbably erred in waiting t lng t initiate his USERRA case in the MSPB. There is n statute f limitatins under USERRA, and a case can be initiated even years later. 7 But sleeping n yur rights is almst always a bad idea. Yu have the burden f prf when yu bring a USERRA case and prving a 1998 vilatin is much easier in 1999 than it is in As time passes, memries dim, witnesses die r therwise becme unavailable, and recrds are lst r destryed. Fr this reasn, it is prudent t initiate yur case sner rather than later. Maki and several ther Reserve Cmpnent members have tld me recently that DEA is a serial vilatr f USERRA. I d nt dubt that fr ne mment. Over the last 35 years, I have heard frm scres f DEA emplyees wh have alleged that DEA, as their civilian emplyer, has fluted USERRA and the VRRA. I was nt called as a witness in Maki s USERRA case, and my testimny wuld nt have been admissible in any case. Evidence abut alleged vilatins with respect t ther individuals is nt generally admissible in a case, and prf that DEA discriminated against ther Reserve Cmpnent members des nt cnstitute prf that DEA discriminated against Maki. 6 The Federal Circuit is the specialized federal appellate curt that sits in Washingtn, DC and has natinwide jurisdictin ver certain kinds f cases, including appeals frm MSPB decisins U.S.C. 4327(b).