LAW REVIEW 826 - REV

Update: (March 2009)
CATEGORY: 1.14-Status of Returning Veteran
1.18-USERRA and other laws
1.19-USERRA Enforcement

Hard Cases Make Bad Law—Part Two

By Captain Samuel F. Wright, JAGC, USN (Ret.)

In Law Review 0826 (April 2008), I discussed the unfavorable case of Russell v. EEOC, 107 M.S.P.R. 171 (Merit Systems Protection Board 2007).  The Merit Systems Protection Board (MSPB), a quasi-judicial federal agency that adjudicates matters pertaining to federal civilian employment (including the Uniformed Services Employment and Reemployment Rights Act as it applies to federal agencies as employers) held that the Federal Circuit precedent Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007) required the MSPB to dismiss Ermea Russell’s USERRA claim for lack of jurisdiction.  (I discuss Pittman in detail in Law Review 0825.)

Ms. Russell (an attorney and also a Colonel in the Army Reserve, as well as an ROA member) filed a timely appeal with the United States Court of Appeals for the Federal Circuit.  On July 9, 2008, in a highly unusual action, the MSPB (which normally does not file briefs in the Federal Circuit) filed a brief that begins with this paragraph:  “The Board [MSPB] confesses error in its ruling that this Court’s [the Federal Circuit’s] decision in Pittman v. Department of Justice required the Board to overrule its previous decision in this case and dismiss petitioner’s appeal for lack of jurisdiction because the negotiated grievance procedure [under the collective bargaining agreement between Ms. Russell’s union and the Equal Employment Opportunity Commission, her former employer] was her exclusive remedy. The Board now believes that the case should be remanded for the Board to vacate its decision and to consider Ms. Russell’s petition for review.”

This is great news, and the Federal Circuit will almost certainly grant the MSPB its wish.  We will keep the readers informed about developments in this important case.

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