Joe Whitcomb
Anthony W. Knox, a Special Agent with the Drug Enforcement Administration (DEA) from 1997 to 2020 and a member of the United States Air Force Reserves, brought claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA). He sought to correct the effective dates of both a within-grade pay increase and a promotion, alleging they were delayed due to his military service.
From November 22, 2002, to November 21, 2003, Knox was deployed for Operation Iraqi Freedom. At the time, he was a GS-12 step 2 employee. While deployed, his supervisor submitted documentation indicating he was at an acceptable level of competence and eligible for a within-grade increase effective February 23, 2003. Upon returning to the DEA on November 24, 2003, the effective date was instead recorded as April 20, 2003.
In March 2004, Knox submitted a promotion request, noting his eligibility for GS-13 in April 2004. His supervisor recommended the promotion, but it was not processed due to a pending policy change. On June 15, 2004, the DEA implemented a revised promotion policy with stricter criteria. Knox was eventually promoted to GS-13 in April 2016.
Merit Systems Protection Board decision
Knox filed an appeal with the Merit Systems Protection Board (MSPB) in January 2020. An Administrative Judge granted his reemployment claim for the within-grade increase, agreeing it should have been effective February 23, 2003. However, the judge denied his discrimination claim related to that increase, finding no link between the two-month delay and his military service.
The judge also denied Knox’s promotion-related claims. For the reemployment claim, the judge concluded that because the GS-13 promotion was discretionary, Knox could not prove it was a right of employment to which he was entitled. For the discrimination claim, the judge found no evidence that Knox’s military service was a motivating factor in delaying his promotion.
Neither party sought full board review, making the initial decision final. Knox appealed to the Federal Circuit.
Federal Circuit’s analysis
The court found that the MSPB applied the wrong legal standard to Knox’s promotion reemployment claim. Under applicable regulations, a benefit need not be automatic for an employee to prevail. The correct inquiry was whether it was reasonably certain the benefit would have been granted but for the employee’s military service. The case was remanded for the MSPB to reconsider the promotion reemployment claim under this standard.
The Federal Circuit affirmed the MSPB’s denial of Knox’s discrimination claims, finding substantial evidence that the delays were due to administrative error rather than military service.
Case management and other issues
Knox also challenged several procedural decisions, including discovery rulings, denial of COVID-19-related stays, and certain conference call comments. The court found no abuse of discretion and no prejudice to Knox’s case. Requests for reassignment to a different administrative judge and arguments related to laches were rejected or deemed unnecessary to address.
Final outcome
The Federal Circuit affirmed in part, vacated in part, and remanded the case for further proceedings on the promotion reemployment claim.
Help with USERRA and military service employment rights
If your employment benefits, promotions, or pay adjustments were delayed due to military service, Whitcomb, Selinsky PC handles USERRA cases involving reemployment rights, promotion eligibility, and benefit disputes. Reach out to schedule a consultation and learn how our team can assist with your case.