Home Media Center News Releases

Washington, D.C.—The National Treasury Employees Union (NTEU) has won a major federal court victory underscoring and supporting the reemployment rights of federal workers who also serve their country as active duty members of the armed forces reserves and National Guard. The decision is expected to have wide-ranging procedural impact on claims by veterans asserting these rights.

A panel of the U.S. Court of Appeals for the Federal Circuit granted NTEU’s motion to vacate a decision of the Merit Systems Protection Board (MSPB), reversing the Board’s ruling that it did not have jurisdiction over a petition filed by an employee of the Equal Employment Opportunity Commission (EEOC) who also was an Army Reserve officer who had spent two years on active duty. The case is Russell v. MSPB, No. 2008-3106 (Fed. Cir.). NTEU represented the EEOC employee because of the importance of the issue to all federal employees.

“This is an important case because the MSPB has dismissed other claims filed by veterans on the grounds that they were required to pursue their claims through the grievance route only,” said NTEU President Colleen M. Kelley.

Upon her return from active duty, Lt. Col. Ermea J. Russell was immediately transferred from her previous work location in Jackson, Miss., to an EEOC office in Birmingham, Ala. Russell argued in a grievance that she was entitled to be reemployed in the Jackson office, and that the agency’s failure to reemploy her there violated the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA). Her grievance was denied, and her union declined to invoke arbitration, so she filed an appeal with the MSPB.

The issue in the case is whether Russell was prohibited from pursuing an appeal alleging USERRA violations with the MSPB. A majority of the appeals court panel said Russell can pursue the issue with the MSPB, notwithstanding the availability of a remedy under the negotiated grievance procedure. It relied, in part, on USERRA’s clear direction that collective bargaining agreements cannot limit USERRA rights, including the right to file an appeal with the MSPB.

The MSPB had originally ruled in Russell’s favor, reversing an Administrative Judge’s (AJ) decision to dismiss her appeal for lack of jurisdiction. It sent the case back to the AJ, who ruled against her on the merits. Russell again appealed to the MSBP, which—incorrectly relying on an intervening decision by the Federal Circuit in another case—reversed its previous jurisdictional ruling and held that it did not have jurisdiction to decide her claim after all. NTEU took Russell’s case to the court of appeals.

After NTEU filed its opening brief, the MSPB reversed course again, agreeing with NTEU that it had misinterpreted the intervening Federal Circuit precedent. NTEU then filed a motion to remand the case back to the MSPB for consideration of Russell’s appeal, and the court granted the union’s request.

Congress has long protected the reemployment rights of reserve military personnel to protect them “against potential disadvantage due to an extended absence while on active duty,” the court majority wrote. It added: “Congress and the courts have recognized that employer policies, agreements, and collective bargaining processes should not subordinate the ability of a reservist to return to a job after service.”

President Kelley noted this victory will open an additional avenue for veterans to pursue consideration of their claims on the merits, including some that had previously been dismissed by the MSPB and are pending in the court of appeals.

The NTEU leader called the decision in the Russell case “another example of NTEU’s leadership on the most important legal issues facing federal employees.”

NTEU is the largest independent federal union, representing 150,000 employees in 31 agencies and departments.