Government Files Petition for Rehearing En Banc in USERRA Case
The Social Security Administration (SSA) removed a preference-eligible veteran from his position as an attorney advisor near the end of his one-year probationary period due to allegedly poor performance. The employee filed for corrective action with the Merit Systems Protection Board, alleging that the agency violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it removed him because of his preference-eligible status. An MSPB administrative judge denied the request for corrective action, and the employee appealed to the Federal Circuit. On November 7, 2019, the U.S. Court of Appeals for the Federal Circuit reversed the MSPB decision, and remanded the case to the MSPB for a determination of the appropriate corrective action. On January 22, 2020, before the remand took effect, the government filed a petition for rehearing en banc, asking that all judges of the Federal Circuit hear the case and rule on a “precedent-setting question of exceptional importance.”
That question, according to the government’s petition, is whether, “when a Federal agency terminates an [allegedly] underperforming preference-eligible veteran during or shortly before the end of his one-year trial period, to avoid the vesting of his adverse action rights as an employee, the timing of that termination can be preponderant evidence of illegal discrimination on the basis of veteran status.”
On November, 19, 2019, we previously reported on the Federal Circuit panel decision in favor of the employee in this case, McGuffin v. Social Security Administration. Now, the government argues that the Federal Circuit panel decision “conflicts with binding precedent and implies new rights for veterans unmoored from any law.” The government’s petition argues that the SSA has a policy of “evaluating appointees as their applicable period winds down,” which “does not discriminate based on veteran status because SSA evaluates all new appointments, whoever they are, before their applicable period ends, and not everyone who is preference eligible (and thus gets a shorter trial period) is a veteran with USERRA rights.”
The government argues that the Federal Circuit panel decision is contrary to Supreme Court precedent, as well as the Federal Circuit’s own precedent in Sheehan v. Dep’t of the Navy, 240 F.3d 1009 (Fed. Cir. 2009). According to the government, the panel erred when it did not apply the Sheehan factors for determining whether an inference of discriminatory motive is appropriate. The panel did not apply the Sheehan factors because it held that SSA failed to carry its burden to establish a legitimate non-discriminatory reason for terminating the employee. Indeed, the panel held that substantial evidence did not support a finding that the employee was “poorly performing,” and instead held that SSA’s true concern was the “administrative burden of defending itself should [the employee] assert his procedural safeguards” once he became non-probationary.
The government now argues that the panel’s decision to not consider the Sheehan factors was significant because the factors were not met. It argues that to the extent that SSA’s “neutral” evaluation policy (i.e. evaluating veterans before the end of a one-year probationary period rather than before the end of a two-year evaluation period for others) produces different results for preference-eligible veterans than for other employees, that difference cannot be a basis for a finding of unlawful disparate treatment. According to the government, just because Congress intended USERRA’s provisions to benefit veterans, policies that could potentially inure to the veteran’s detriment (i.e. have a potentially negative, disparate impact on veterans) cannot be per se discriminatory because USERRA does not provide for disparate impact causes of action.
The government concluded its petition by arguing that the “decision risks being interpreted to preclude a Federal agency from tailoring the timing of its consideration of terminations with the date on which an individual would accrue adverse action rights.” It argued that “the panel’s decision could be interpreted or misinterpreted to interfere with the CSRA’s intricate scheme for balancing management needs with employee protections, to the confusion, inconsistency, and detriment of Federal agencies and the Federal workforce.”
Petitions for rehearing en banc are rarely granted, and pursuant to Federal Circuit Rule 35, only the appeals court itself can decide whether to rehear the appeal en banc. We will report an update in this case if the petition is granted.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.