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Thomsen v. Department of Treasury

March 05, 1999

JEFFREY N. THOMSEN, PETITIONER,
v.
DEPARTMENT OF THE TREASURY, RESPONDENT.



Before Rich, Clevenger, and Rader, Circuit Judges.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Appealed from: Merit Systems Protection Board

Jeffrey N. Thomsen asks this court to reverse the dismissal by the Merit Systems Protection Board of his action against the Department of the Treasury. See Thomsen v. Treasury, No. DC-0353-97-0426-I-1 (MSPB May 12, 1998). Because the Merit Systems Protection Board erred in holding that membership in the U.S. Army Reserves was a benefit of Mr. Thomsen's employment with the Secret Service, we vacate the judgment below and remand for further proceedings.

I.

In 1987, Jeffrey Thomsen was hired as an Officer in the Uniformed Division of the United States Secret Service ("Secret Service" or "Agency"), an agency within the Department of the Treasury. At that time, Mr. Thomsen was also an active member of the United States Army Reserves ("Ready Reserves"). Agency policy prohibits employees of the Uniformed Division from membership in the Ready Reserves; all such employees are considered to occupy "key" civilian positions under 32 C.F.R. § 44.5(10)(b)(2)(i), *fn1 which allows agency heads to designate employees that "occupy positions that cannot be vacated during a national emergency or mobilization without severely impairing the capability of their agency to function effectively." Designation as a "key" employee required the Secretary of the Army, under 32 C.F.R. § 44.5(10)(b)(2)(i), to transfer Thomsen to inactive status in the Reserves, or discharge him altogether.

Beginning in 1989, the Secret Service notified the Army that Mr. Thomsen was a "key" employee. However, no action was taken on this request (or several subsequent ones) until 1996, when Thomsen was transferred to inactive status.

Shortly after Thomsen was notified that he had been transferred to inactive status in the Reserves, he filed a complaint with the Secretary of Labor alleging that the Agency had violated the provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103-353, 108 Stat. 3149, codified at 38 U.S.C. §§ 4301 et seq. (Supp. 1998) ("USERRA"), by designating him a "key" employee.

Under the relevant provisions of USERRA, no person shall be denied "initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that [person's] membership [in the armed services], application for membership, performance of service, application for service, or obligation." 38 U.S.C. § 4311(a) (Supp. 1998) (emphasis added). Thomsen alleged that the Secret Service, by designating him a key employee under 32 C.F.R. § 44.5(10)(b)(2)(i), denied him a "benefit of employment" in violation of USERRA.

In February 1997, the Department of Labor issued a decision finding that the Agency's policy did not violate USERRA. Thomsen then filed a complaint directly with the Merit Systems Protection Board ("Board") pursuant to 38 U.S.C. § 4324(b) (Supp. 1998). While the Board found that Thomsen's designation as a key employee and resultant removal from the Ready Reserves was a denial of a benefit of employment sufficient to trigger the application of USERRA, it dismissed Thomsen's complaint for lack of jurisdiction because "the alleged improper denial of an employment benefit occurred before [the] effective date of the USERRA discrimination provision." Thomsen, No. DC-0353-97-0426-I-1, slip op. at 3-4. That is, the Board found that the USERRA anti-discrimination provisions invoked by Mr. Thomsen, see 38 U.S.C. § 4311(a) (Supp. 1998), were effective only after October 13, 1994--the date that USERRA was enacted. The Board concluded that because the designation of Thomsen as a key employee had occurred by that date, Thomsen could not now bring his USERRA claim; thus Thomsen's claim was dismissed. See Thomsen, No. DC-0353-97-0426-I-1, slip op. at 4. Pursuant to 38 U.S.C. § 4324(d)(1) (Supp. 1998), this appeal followed, vesting us with jurisdiction under 28 U.S.C. § 1295(a)(9) (1994).

II.

Our review of Board decisions is provided by statute. This court must set aside any decision by the Board which we find to be: (1) arbitrary, capricious, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994). In this light, we review issues of law, such as whether the Board has jurisdiction, de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).

A.

Although it dismissed the complaint on the grounds that the benefit of employment identified by Mr. Thomsen "was denied him by the agency at least as early as 1989 (if not upon employment) when the agency first identified him to the department of defense as an employee occupying a `key' position," the Board specifically held that "membership in the Ready Reserve is a `benefit ...


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