"The court’s opinion reflects a certain amount of exasperation: ‘Despite the lengthy, tortured procedure due to disagreements between HHS and the MSPB over how to remedy the government’s error, this is a simple case. HHS violated the Veterans Employment Opportunities Act (VEOA) of 1998 when HHS selected a non-veteran over (the appellant) without obtaining approval from the Office of Personnel Management (OPM).’ "
Meanwhile, the U.S. Office of Special Counsel (OSC), the agency tasked with protecting the reemployment rights of federal employee military veterans and reservists under the Uniformed Services Employment and Reemployment Rights Act (USERRA), has intervened in a particularly interesting and potentially significant USERRA dispute.
Anne Glass, an attorney with the OSC, was kind enough to send me a press release, dated December 14, 2009, announcing that Special Counsel had "settled a landmark case involving a former federal contractor and Army Reserve Brigadier General who served in Iraq but was unable to get his civilian job back upon his return to employment."
The press release went on to note that "Michael J. Silva was working as a contract employee at the U.S. Department of Homeland Security, Customs and Border Protection (CBP) facility in Lorton, Virginia." As an Army Reservist, "he was deployed to Iraq and served honorably for over a year until his release from active duty in August 2007."
Exercising his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), "Mr. Silva requested reinstatement in his former position supporting CBP. The contractor, SPS Consulting (SPS), notified CBP of Mr. Silva’s request. However, the CBP’s Contracting Officer Technical Representative informed the contractor that the agency was satisfied with Mr. Silva’s replacement and would ‘cancel the contract’ if SPS attempted to reinstate Mr. Silva.
"Mr. Silva subsequently filed USERRA complaints against both SPS and CBP for failing to reinstate him. While SPS was his nominal employer, USERRA defines ‘employer’ to include ‘any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including…the Federal Government.’
"OSC investigated Mr. Silva’s complaint against CBP, determined it had merit, and represented him in a USERRA appeal before the U.S. Merit Systems Protection Board (MSPB). Prior to Mr. Silva’s case, the MSPB had never before determined whether the federal government could be held liable to a contract employee under USERRA. Mr. Silva lost wages and other benefits by not being reinstated.
"After an Administrative Judge dismissed Mr. Silva’s case for lack of jurisdiction, OSC filed an appeal with the full MSPB. In a published decision, the MSPB reversed the dismissal, holding that OSC’s theory that CBP acted as Mr. Silva’s ‘employer’ was cognizable under USERRA. In its ruling, the Board stated:
‘We agree…that a federal agency could be considered an individual’s "employer" under USERRA, even when the individual was not appointed in the civil service but instead was formally employed by a government contractor.’
"The Board then remanded the case for further development of the record on ‘the degree of control that the agency exercised over [Mr. Silva’s] reemployment.’
"Following the MSPB’s decision, Mr. Silva and CBP negotiated a settlement agreement and the case was dismissed. The parties agreed to keep the terms of the settlement confidential.
"Federal agencies should take note of the MSPB’s decision, which subjects them to potential liability if they interfere with the employment rights of Guard and Reserve members who work as civilian government contractors, even though such individuals are not government employees in the traditional sense. OSC applauds CBP’s efforts to settle this matter to Mr. Silva’s satisfaction…"
The premise of my two earlier articles was that third-parties seem to be increasingly willing to enforce the rights of veterans.
The court decision cited by Ms. Smith in the court case that a veteran filed against the Department of Health and Human Services and the OSC’s successful intervention on behalf of a veteran in the case detailed in this article lead me to believe even more strongly that agencies will be well-advised not to violate veteran’s rights.