Justia Military Law Opinion Summaries

Kitlinski, employed by the DEA and a Coast Guard reservist, was recalled to active duty. For an extended period, he served full-time at Coast Guard headquarters in Washington, D.C. He filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-35, and an equal employment opportunity complaint against DEA, based on DEA’s responses to his requests to be transferred from DEA’s San Diego office to Arlington, Virginia, where Kitlinski’s wife worked. After a deposition, Kitlinski returned to his car, in a secure DEA parking lot, and discovered a Blackberry device bearing a DEA sticker under his car's hood. He suspected that it was intended to track his location and record his conversations. Kitlinski reported his discovery to the FBI. Kitlinski’s wife was interrogated and was threatened with discipline if she did not turn over the Blackberry. Kitlinski filed an action with the Merit Systems Protection Board, alleging that the placement of the Blackberry and his wife's interview violated USERRA as discrimination and by creating a hostile work environment. He also alleged retaliation and a hostile work environment in retaliation for his exercise of his USERRA rights. The Federal Circuit affirmed the Board’s dismissal of various claims but remanded in part because the Board did not make a finding on Kitlinski’s claim that DEA had created a hostile work environment in retaliation for his USERRA activities. View "Kitlinski v. Merit Systems Protection Board" on Justia Law

Member of Naval Reserve, terminated by private employer, established a prima facie case under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage worked as an aviation mechanic for FedEx, 2001-2012, simultaneously serving as a lieutenant in the Naval Reserve. He was terminated by FedEx for violating its reduced-rate shipping policy and acceptable conduct policy. He had never been disciplined before his termination; he claims he was unaware of a change in policy that prohibited use of an employee discount for shipping items sold on eBay. FedEx had accommodated his military duties and employs other members of the military. Savage had complained, to a third-party administrator, about a miscalculation in his pension benefits. Savage claimed discrimination, retaliation, and improper benefit calculations under USERRA, 38 U.S.C. 431. The district court granted FedEx summary judgment. The Sixth Circuit reversed in part, finding that Savage provided evidence of a genuine dispute of material fact as to whether FedEx correctly calculated his pension contributions under section 4318. Savage also provided evidence of disparate treatment, motivated by his protected status, with respect to misuse of the shipping discount, sufficient to survive summary judgment. The court concluded that Savage had not been targeted for investigation. View "Savage v. Federal Express Corp." on Justia Law

The Budget Control Act of 2011 established spending limits for federal agencies and required automatic spending cuts (sequestration) if certain deficit reduction legislation was not enacted. The American Taxpayer Relief Act of 2012 required the President to issue a sequestration order near the middle of fiscal year 2013. Under President Obama’s sequestration the Department of Defense (DOD) 2013 budget was cut by approximately 37 billion dollars, to be absorbed over six months. The DOD reprogrammed funds, reduced facility maintenance, eliminated some military training exercises, and furloughed civilian workers. Calhoun is a non-excepted civilian Doctrine Defense Specialist for the Army Cyber Command (ACC). ACC Commander Lt. Gen. Hernandez, the deciding official, delegated that authority to his Chief of Staff, Col. Sanborn. Calhoun received a Notice of Proposed Furlough. Calhoun replied, including budget proposals she asserted would prevent furloughs. In responses to Calhoun, Col. Sanborn stated that he had read her submissions and that “[t]he furlough guidance … is clear.” Calhoun was furloughed for six nonconsecutive days. An administrative judge found that delegation to Col. Sanborn did not violate DOD policy; that Col. Sanborn appropriately considered Calhoun’s reply; and that evaluation of the merits of her proposals was beyond the scope of his review. The Merit Systems Protection Board and the Federal Circuit affirmed, finding no due process violation because Col. Sanborn considered Calhoun’s written reply and because a summary of her oral reply would not have altered the furlough decision. View "Calhoun v. Department of the Army" on Justia Law

Plaintiff, an Army Reservist and fifth grade teacher, filed suit against the Board. Plaintiff claimed that she was improperly reemployed in violation of Section 4313 of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4313, because her mental state rendered her unqualified, and the Board’s allegedly hostile work environment triggered or exacerbated her disability. Plaintiff was reemployed by the Board after her deployment, but eventually terminated based on her deficient performance. The Board later discovered that plaintiff was disabled due to post-traumatic stress disorder (PTSD). The district court granted summary judgment to the Board. The court affirmed the judgment because Section 4313 cannot serve as a basis for claims involving acts occurring after reemployment, and because plaintiff has no available remedies. View "Butts v. Prince William County School Board" on Justia Law

Carroll was hired by the Delaware River Port Authority in 1989 as a police officer. From 1989-2009, he served six years as a Navy corpsman and 10 years in the Pennsylvania National Guard. When not on active military duty, Carroll maintained his Port Authority employment, achieving the rank of corporal in 2004. Carroll was deployed to Iraq in 2009, where he sustained injuries leading to cervical spondylosis, degenerative disk disease, bilateral torn rotator cuffs, brain injury, and high-frequency hearing loss. Carroll was in rehabilitation until his 2013 honorable discharge. Carroll has not worked for the Port Authority since his deployment. In 2010 and 2012, while on active duty but in rehabilitation, Carroll unsuccessfully applied for a promotion. Carroll sued under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, alleging discrimination based on military service. After discovery, the court certified an interlocutory appeal on the question of whether Carroll must plead and prove that he was objectively qualified for promotion to sergeant in order to sustain his discrimination suit. The Third Circuit stated that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA; instead, employers may raise a plaintiff’s lack of qualifications as a nondiscriminatory justification for declining to promote the plaintiff, notwithstanding military service. View "Carroll v. Delaware River Port Authority" on Justia Law

Plaintiff filed suit against his employer, alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301-4334. Plaintiff claimed that he was fired from his job after providing notice of his deployment to Afghanistan in the United States Navy Reserve. The court joined its sister circuits and held that the plain text of USERRA does not preclude the compelled arbitration of disputes arising under its provisions. Furthermore, plaintiff has failed to establish that the legislative history evinces Congress’s intent to prevent the enforcement of the arbitration agreement he signed. Accordingly, the court affirmed the district court's order compelling arbitration and dismissing the complaint. View "Ziober v. BLB Resources" on Justia Law

In 2015, Jones, a veteran, filed 16 appeals with the Merit Systems Protection Board (MSPB), alleging that the U.S. Department of Health and Human Services (HHS) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301–4333, when it did not select him for various job vacancies. An administrative judge consolidated the appeals and ultimately denied relief in an Initial Decision. That Decision became the Final Decision of the MSPB when Jones did not timely file a petition for review. The Federal Circuit affirmed, first holding that it had jurisdiction, rejecting an argument that there was no . final MSPB decision from which Jones could appeal. The AJ properly found that neither direct nor circumstantial evidence supported Jones’s USERRA claim and failed to demonstrate by a preponderance of the evidence that his military service was a motivating factor in HHS’s decision not to hire him for the subject job vacancies. View "Jones v. Dept. of Health & Human Servs." on Justia Law

After Cooks terminated him, plaintiff filed suit against the company, alleging claims under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301, 4302(b), and Alabama state law. The district court entered an order striking from the arbitration agreement two terms that violated USERRA, dismissing the suit without prejudice, and ordering plaintiff to submit his claims to arbitration. On appeal, plaintiff contends that the district court erred by failing to apply the plain language of USERRA’s non-waiver provision. The court concluded that the contract's arguable delegation clause - which would require that the arbitrator, rather than the court, determine whether the arbitration agreement is enforceable - does not control this appeal. The court also concluded that, in reaching whether the arbitration agreement is enforceable, section 4302(b) is not in conflict with the Federal Arbitration Act (FAA), 9 U.S.C. 1, 2, and the district court properly determined the arbitration agreement is enforceable. Accordingly, the court affirmed the district court's decision to compel arbitration. View "Bodine v. Cook's Pest Control" on Justia Law

Phillip Ramirez, a member of the New Mexico Army National Guard, was employed by the New Mexico Children, Youth and Families Department (CYFD). In July 2005, Ramirez was ordered to federal active duty and deployed to Iraq. After Ramirez returned to work in New Mexico, CYFD terminated his employment. Ramirez sued CYFD, asserting a Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) claim. A jury found in his favor and awarded Ramirez monetary damages. The Court of Appeals reversed the damages award, concluding that CYFD as an arm of the State was immune to Ramirez’s USERRA claim. After review of that decision, the New Mexico Supreme Court disagreed: by enacting NMSA 1978, Section 20-4-7.1(B) (2004), the Legislature specifically extended “[t]he rights, benefits and protections” of USERRA to members of the New Mexico National Guard who were ordered to federal or state active duty for a period of thirty or more consecutive days. In so doing, the Legislature consented to suits brought against state employers who violate the protections guaranteed by USERRA. View "Ramirez v. CYFD" on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law