Federal Circuit Remands to MSPB Whether Promotion Is a Protected Benefit of Employment under USERRA

The Uniformed Services Employment and Reemployment Rights Act requires federal agencies to consider military services members for any advantage of employment that they would have been entitled to but for their absence for military service obligations. The Federal Circuit recently held that the Merit Systems Protection Board applied the incorrect legal standard when determining what is considered an advantage of employment.

Anthony Knox was a Drug Enforcement Administration Special Agent from 1997 until 2020. He was also a member of the U.S. Air Force Reserves and deployed to Iraq for from November 22, 2002, to November 21, 2003. While deployed, Knox was entitled to a within-grade increase from a GS-12, step 2 to a GS-12, step 3 on February 23, 2004. The effective date of the within-grade increase was incorrectly set for April 20, 2003.

In March 2004, Knox requested a promotion to GS-13 on April 20, 2004. Per agency policy at the time, Special Agents could be considered for promotion to GS-13 after one year in grade if recommended by the Special Agent in Charge (SAC) based on established criteria. Although the promotions were “not automatic,” the policy provided that they “will normally be accepted after review by the Position Review Committee.” DEA did not process Knox’s promotion request. It cited an upcoming change of policy. The agency issued the revised policy on June 15, 2004. The new policy clarified that promotions are “neither an entitlement nor automatic.” Knox was not promoted to GS-13 until April 17, 2016.

In January 2020, Knox filed an appeal with the Board. He brought reemployment and discrimination claims under the USERRA. For his reemployment claims, Knox alleged that DEA erroneously effected his within-grade increase in April 2003, due to his military service. He further alleged that the agency delayed his promotion eligibility because of the error, and that the delay resulted in his promotion application being considered and denied under a less-favorable agency policy. Knox sought retroactive correction of the within-grade increase to February 2003, and promotion to February 2004.

An MSPB administrative judge granted the within-grade increase reemployment claim and denied the promotion reemployment claim. In denying the promotion reemployment claim, the administrative judge found that because promotions were not “automatic,” Knox did not show he would have been entitled to promotion as an advantage of employment. The administrative judge also denied both discrimination claims. The parties did not petition for review with the Board, and instead filed a petition for judicial review with the Federal Circuit.

The Federal Circuit ruled that the administrative judge applied the incorrect legal standard in denying Knox’s promotion reemployment claim, as the administrative judge required Knox to prove he was entitled to an “automatic” promotion. The Federal Circuit held that regulation, 5 C.F.R. § 353,106, determines whether an employee absent on military duty is entitled to an advantage of employment. That regulation requires consideration whether: (1) the advantage is one generally granted to all employees and whether it was denied solely because of absence for military service, (2) the absent employee was treated the same as if he had remained at work, and (3) it was reasonably certain that the benefit would have accrued but for the absence for military service.

Because the administrative judge did not consider whether Knox was entitled to promotion as an advantage of his employment per the standard under OPM regulation, the Federal Circuit vacated and remanded the decision for further proceedings on Knox’s promotion reemployment claim. The Federal Circuit also instructed the Board to determine whether all three regulatory factors must be met to prove a USERRA reemployment claim and which party bears the burden of proof on them. The court found that the administrative judge did not err in denying Knox’s discrimination claims.

Read the full case: Knox v. DOJ