MSPB Law Blog

What is USERRA?

USERRA is a federal statute that was designed to handle many issues involving military service to our country. First, USERRA was enacted to encourage service in the uniformed services by minimizing the disadvantages to civilian employment which can result from military service. Second, USERRA was also enacted to minimize the disruption to the lives of individuals performing military service by requiring prompt reemployment of these individuals upon their completion of military service. Third, and most important to this article, USERRA was designed to prohibit discrimination against persons because of their military service. 38 U.S.C. § 4301. We find that the latter type of case is the most common.  

USERRA and MSPB Appeals for Federal Employees

Federal employee cases involving USERRA can be brought to the MSPB. The MSPB has more than one way in which USERRA cases are heard for federal employees. Generally speaking, there are two types of cases that the MSPB will hear under USERRA. The first type of MSPB appeal is a reemployment case, in which a federal employee claims that a federal agency has failed to comply with its obligations to reemploy the federal employee after he/she has completed their military service and returned. The second type of MSPB case is more common and known generally as a military discrimination case, in which a federal employee has claimed that a federal agency has denied the appellant initial employment, continued employment, reemployment, retention in employment, promotion, or any benefit of employment because of the appellant's military service. Clavin v. U.S. Postal Service, 99 M.S.P.R. 619  (2005).

Furthermore, with respect to military discrimination claims, the MSPB has the ability to hear USERRA reprisal claims, such as those where the federal employee claims that an agency has retaliated against them due to:  (1) the federal employee taking action to enforce a right under USERRA; (2) where the federal employee provides testimony or a statement in a prior USERRA proceeding; (3) when the federal employee participates or assists in investigating a USERRA claim; or (4) when the federal employee exercises a right under USERRA. 

How does a Federal Employee file an MSPB Appeal?

A federal employee claiming a federal agency violation of USERRA with respect to the employment or reemployment may file a complaint with the U.S. Department of Labor (DOL), who will investigate the complaint and attempt to resolve it if the DOL investigation reveals that the federal agency may have committed a violation of USERRA. Federal employees who believe their USERRA rights have been violated by an agency may alternatively (and often preferred) file an appeal directly with the MSPB. However, if the federal employee first files a USERRA appeal with DOL, she/he may not file a USERRA appeal with the MSPB until DOL notifies them that they were unable to resolve their complaint. While there is generally no statute of limitations on USERRA claims, it is important to file them as soon as possible because those filed more recently will generally be viewed more credibly. 

Remedies in MSPB Appeal Cases

There are a number of remedies in MSPB appeal cases.  Compared to other types of MSPB appeals, the MSPB must hold a hearing if a federal employee who has filed a USERRA claim requests one. Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007). If successful in an MSPB case, the following types of remedies are often available:

1. Correction of any unlawful employment action taken or not taken;
2. Repayment of any loss of wages or backpay; and
3. The award to a federal employee of reasonable attorney's fees, expert witness fees, and other litigation expenses.

Examples of MSPB Types of Cases Involving USERRA    

The following are just a few examples of federal employee USERRA cases that one may find at the MSPB:

    1.    A federal employee has military orders to join her military unit and the deployment comes at an inconvenient time for the agency or supervisor. As a result, the supervisor takes direct or indirect action to discipline the federal employee; 

    2.    A federal employee returns from military deployment and is given a lower-paying or lower-graded position upon return from military service;

    3.    A federal employee is terminated in their probationary period because their supervisor finds out that they will be out of the office for some time on deployment and wants to hire someone else without the obligation;

    4.    A federal employee is disciplined as a result of raising military service issues with a manager. 

Conclusion

If a federal employee is in need of legal representation in a USERRA case or MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook or follow us on Twitter.