Welcome Back to The Civilian World: You're Fired!

By on May 16, 2007 in Current Events with 0 Comments

A decision by the Federal Circuit addresses the claim of a Senior Officer Specialist that the Bureau of Prisons violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when it failed to reemploy him and improperly removed him following his deployment to Iraq. (Pittman v. Department of Justice, C.A.F.C. No. 2006-3263, 5/15/07) The court declined to overturn Pittman’s removal by the agency and the decision of the Merit Systems Protection Board that sustained the removal. The facts summarized below are taken from the court’s decision, which characterized them as “largely undisputed.” (Opinion p. 2)

Pittman worked at the Metropolitan Detention Center in Brooklyn, New York, when his U.S. Marine Corps Reserve unit was activated and deployed to Iraq. He was stationed at the Whitehorse detention facility where  he was court-martialed for dereliction of duty and assault as a result of his interaction with Iraqi prisoners. Pittman was reduced in rank to private and sentenced to 60 days hard labor without confinement. But, he retained his good standing in the reserve and was released from active duty status under honorable circumstances. (p. 2)

Pittman returned to the Bureau of Prisons, requested and was granted leave for several weeks, and then worked one shift. At this point he was confronted by the agency about his conviction at court-martial and the conduct underlying that conviction. The agency put him on administrative leave and eventually removed Pittman. The agency concluded there was a nexus between the court-martial offenses and convictions, and Pittman’s job with the Bureau of Prisons. (pp. 3-4)

Pittman elected to challenge his removal by filing a grievance under the applicable collective bargaining agreement. A couple of days later, he filed an appeal with the Merit Systems Protection Board arguing that both the agency’s failure to reemploy him and his removal violated USERRA. The Board concluded that it lacked jurisdiction over the removal appeal since Pittman had already invoked his right to file a grievance. As for the failure to reemploy claim, the Administrative Judge found that in fact the agency had reemployed Pittman since he was granted almost 2 months leave, and he had worked one shift once his leave ended. (pp. 3-4)

Now, the appeals court concludes that the Board’s finding that the agency did reemploy Pittman upon his return from military service was supported by substantial evidence. (p. 6)

As for Pittman’s removal, the court found that his grievance challenged the same underlying facts as those that he sought to have the Board review. Therefore, the Board did not have jurisdiction to consider his improper removal claims. In so ruling, the court had this to say about Pittman’s USERRA argument: “Having concluded that the Board lacked jurisdiction over Pittman’s improper removal claims, we need not—and do not—address the question of whether an employee can be removed for cause under USERRA predicated on the employee’s conduct during military service that results in an adjudication by a military tribunal but does not disqualify the employee from a separation under honorable conditions.” (p. 10)

Circuit Judge Mayer filed a blistering dissent.  Calling the actions of the Bureau of Prisons a “direct contravention of [USERRA],”  he opines that the agency “chose to punish [Pittman] a second time…” (Dissent pp. 1-2) Judge Mayer goes on to say, “It is ironic that the Department of Justice blatantly distorts USERRA to support this perversion of Congress’ clarion mandate, in time of war no less. It is beyond ironic that this court lets them get away with it. I dissent.” (Dissent p. 2)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.