486 F.3d 1276 (Fed. Cir. 2007), 2006-3263, Pittman v. Department of Justice

Docket Nº:2006-3263.
Citation:486 F.3d 1276
Party Name:Gary P. PITTMAN, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
Case Date:May 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1276

486 F.3d 1276 (Fed. Cir. 2007)

Gary P. PITTMAN, Petitioner,

v.

DEPARTMENT OF JUSTICE, Respondent.

No. 2006-3263.

United States Court of Appeals, Federal Circuit.

May 15, 2007

Page 1277

John O. Fronce, Abrams, Gorelick, Friedman & Jacobson, P.C., of New York, NY, argued for petitioner.

Phyllis Jo Baunach, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, and Kathryn A. Bleecker, Assistant Director. Of counsel on the brief was R. Suzanne Courtney, Attorney, Labor Management Relations, Federal Bureau of Prisons, United States Department of Justice, of Washington, DC.

Before MAYER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and LINN, Circuit Judge.

Opinion for the court filed by Circuit Judge LINN. Circuit Judge MAYER dissents.

OPINION

LINN, Circuit Judge.

Gary P. Pittman ("Pittman") seeks review of the initial decision of the administrative judge ("AJ") for the Merit Systems Protection Board ("Board"), Pittman v. Dep't of Justice, No. NY-3443-05-0113-I-1 (M.S.P.B. June 28, 2005) (" Initial Decision "), which became the final decision of the Board after it denied Pittman's petition for review, Pittman v. Dep't of Justice, No. NY-3443-05-0113-I-1, 101 M.S.P.R. 582, 2006 WL 990102 (M.S.P.B. Apr. 6, 2006) (" Final Decision "). That decision denied Pittman's request for relief under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") alleging that the Federal Bureau of Prisons ("agency") failed to

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reemploy him following his military service and improperly removed him from his position. Because the AJ did not err in finding that Pittman was reemployed following his military service, and because the Board lacked jurisdiction over Pittman's improper removal claims, we affirm in part, vacate in part, and remand.

I. BACKGROUND

The facts of this case are largely undisputed. Pittman was employed as a Senior Officer Specialist with the agency at the Metropolitan Detention Center in Brooklyn, New York. Pittman also served in the U.S. Marine Corps Reserve and was activated in March 2003 to participate in Operation Iraqi Freedom. Prior to that activation, Pittman's performance at the agency was more than satisfactory and had warranted a number of performance-based awards.

During Operation Iraqi Freedom, Pittman was stationed at the Whitehorse detention facility in Iraq. On September 3, 2004, Pittman was found guilty at a court-martial proceeding of one count of dereliction of duty under the Uniform Code of Military Justice ("UCMJ") Article 92, 10 U.S.C. § 892, and one count of assault under UCMJ Article 128, 10 U.S.C. § 928. A two-page summary of these convictions identified the underlying conduct as the failure to safeguard the physical health, welfare, and treatment of Iraqi prisoners and the unlawful striking of unknown Iraqi prisoners. Pittman was reduced in rank from sergeant to private and sentenced to sixty days of hard labor without confinement. Pittman nevertheless continued to remain a member of the Marine Corps Reserve in good standing and was released from active duty status under honorable circumstances.

The agency received a copy of the two-page summary of Pittman's court-martial convictions in September 2004. On October 25, 2004, Pittman returned to active duty at the agency and worked one shift. After that shift, Pittman was confronted about the conduct underlying the court-martial convictions. At the agency's request, Pittman signed an affidavit acknowledging the convictions but declaring them to be unsupported by evidence. Later that day, the agency placed Pittman on administrative leave and issued a notice proposing indefinite suspension.

On November 14, 2004, the agency rescinded the proposed suspension and issued a notice of proposed removal based on the following charges: (1) two specifications of off-duty 1 misconduct as described in the two counts that resulted in the court marital convictions; and (2) the convictions themselves. Pittman responded to the charges orally and in writing and alleged that the agency's proposed action violated USERRA. He also submitted a supporting affidavit from his commanding officer that described the mitigating circumstances surrounding his conduct in Iraq and a letter of recommendation from the sheriff of Rockland County, New York.

In a letter dated December 20, 2004, the agency sustained the charges and found a nexus between Pittman's off-duty misconduct and his duties as a correctional officer at the agency. The agency also found that removal was warranted to promote the efficiency of the service. The letter informed Pittman that he had a right to grieve his removal under the negotiated grievance procedure or to file an appeal to the Board, but that only one procedure could be elected. Pittman's removal became effective December 22, 2004.

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Pittman grieved the removal under the applicable collective bargaining agreement on January 18, 2005 by a union letter that was sent on his behalf. On January 20, 2005, Pittman filed an appeal with the Board arguing that his removal was improper because it violated USERRA. The government moved to dismiss that appeal for lack of jurisdiction, arguing that Pittman's election to grieve the removal precluded an appeal to the Board of the same matter.

The AJ found that the parties agreed that jurisdiction was lacking over a direct appeal from the removal under 5 U.S.C. § 7513(d) due to Pittman's election to grieve the removal. Initial Decision, slip op. at 5. The AJ noted, however, that the Board might have jurisdiction over Pittman's separate USERRA claims under 38 U.S.C. § 4324(b). Id. The AJ therefore addressed Pittman's claims that the agency violated USERRA by failing to reemploy him following his military service and by removing him on the basis of his military service.

The AJ found that the agency had reemployed Pittman following his military service as reflected by his approved leave status from September 7 through October 24, 2004, his shift of duty on October 25th, and his administrative leave status from October 25 until his removal on December 22, 2004. Id., slip op. at 8-9. With respect to Pittman's improper removal claim, the AJ noted that the government had raised a defense under 38 U.S.C. § 4316(c) that the removal was for cause. Id., slip op. at 7-8. The AJ found that an inquiry into whether there was cause for Pittman's removal would involve the same matter that Pittman had elected to grieve and that it was therefore not a proper inquiry for the Board. Id., slip op. at 10. The AJ nevertheless assumed that it was properly before the Board and found that there was cause for Pittman's removal. Id., slip op. at 10-12. The AJ also found that Pittman failed to establish that his military service was a motivating or substantial factor in his removal. Id., slip op. at 14-19. Accordingly, the AJ concluded that Pittman did not prove that the agency violated USERRA and denied his request for relief. Id., slip op. at 19-20. The Board denied review, and the decision became final. Final Order, slip op. at 2. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 38 U.S.C. § 4324(d)(1).

II. DISCUSSION

Pittman's arguments on appeal identify two separate agency actions that he asserts violated USERRA. First, Pittman argues that the agency failed to reemploy him following his military service, thereby violating 38 U.S.C. § 4312(a). Second, Pittman argues that his removal from the agency was in violation of 38 U.S.C. §§ 4311(a) and 4316(c). On the merits, we must affirm the Board's decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3)...

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