Erickson v. United States Postal Service
2011 U.S. App. LEXIS 3815
Fed. Cir.2011Background
- USERRA prohibits discrimination based on military service and affords reemployment rights for noncareer servicemembers; five-year service cap affects both discrimination and reemployment claims under 38 U.S.C. §4312(a)(2).
- Board found Erickson abandoned his civilian Postal Service career in favor of a military career, limiting his USERRA protections.
- Erickson joined the Postal Service in 1988 and was repeatedly absent on National Guard duty, including long periods of leave; removal for excessive military leave occurred in 2000.
- During military leave in 2000, Erickson indicated he preferred military service and did not want to quit, though he asserted his job was with the Postal Service.
- On remand, the Board relied on three factors—length of absence, failure to contest removal promptly, and expressed preference for military service—to conclude abandonment; the Federal Circuit disagreed that these supported abandonment.
- Erickson I remanded for further proceedings, and on remand the Board vacated its abandonment finding, leading to a vacate-and-remand decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board's abandonment finding is supported by substantial evidence | Erickson, not abandoning civilian career; evidence insufficient | Board properly inferred abandonment from absence length, silence, and military preference | No; abandonment not sufficiently shown; vacate and remand |
| Whether the five-year cap applies to USERRA §4311 discrimination claims | Cap should apply to discrimination claim as in Erickson I | Cap applies to reemployment rights, not to discrimination in all contexts | Yes, five-year cap applies to discrimination claim as construed in Erickson I |
| Whether delay in contesting removal undermines USERRA rights | Delay cannot alone prove abandonment given ongoing military service | Delay indicates intention to abandon civilian career | Delay alone insufficient to establish abandonment; not dispositive |
| Impact of expressed preference for military service on abandonment | Not an unequivocal intent to abandon civilian career | Expressed preference weighty evidence of abandonment | Not sufficient to establish clear intent to abandon; remand for reconsideration |
| Scope of remand and further proceedings on discrimination claim | Remand appropriate to reassess discrimination claim | Remand necessary to determine proper grounding | Remand to Board for further proceedings on discrimination claim |
Key Cases Cited
- Woodman v. Office of Personnel Management, 258 F.3d 1372 (Fed. Cir. 2001) (abandonment inquiry based on duration and intent; de facto resignation if never intends to return)
- Moravec v. Office of Personnel Management, 393 F.3d 1263 (Fed. Cir. 2004) (abandonment findings affect crediting military service for civilian retirement; five-year cap context)
- Dowling v. Office of Personnel Management, 393 F.3d 1260 (Fed. Cir. 2004) (abandonment findings similar context; retirement credit impact)
- Erickson v. United States Postal Service (Erickson I), 571 F.3d 1364 (Fed. Cir. 2009) (vacated Board’s abandonment ruling; remand on discrimination claim)