Petition for Writ of Certiorari — Thomas P. Harwood, III, Petitioner v. American Airlines, Inc.
Supreme Court briefOct 14, 2022
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No. _______
In The
Supreme Court of the United States
-------------------------- ʕ ---------------------------
MAJOR GENERAL
THOMAS P. HARWOOD, III,
Petitioner,
v.
AMERICAN AIRLINES,
INCORPORATED,
Respondent.
-------------------------- ʕ --------------------------
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
-------------------------- ʕ --------------------------
PETITION FOR WRIT OF CERTIORARI
-------------------------- ʕ -------------------------Adam Augustine Carter
Counsel of Record
R. Scott Oswald
Nicholas W. Woodfield
THE EMPLOYMENT LAW GROUP, PC
1717 K Street, NW, Suite 1110
Washington DC, 20006
(202) 261-2803
acarter@emloymentlawgroup.com
soswald@emloymentlawgroup.com
Michael L. Foreman
PENN STATE LAW CIVIL RIGHTS APPELLATE CLINIC
329 Innovation Boulevard, Suite 118
University Park, Pennsylvania 16802
(814) 865-3832
Mlf25@psu.edu
Counsel for Petitioner
Dated: October 14, 2022
THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036
(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com
i
QUESTIONS PRESENTED FOR REVIEW
I.
Does 38 U.S.C. § 4312, consistent with
USERRA’s literal language, entitle a disabled
service member, who meets all the conditions
specified in § 4312, to prompt reemployment in
the escalator position he or she would have
attained but for uniformed service and help to
become qualified to perform the duties of his or
her escalator position at no cost to the service
member, OR can the employer determine, prior
to reemployment, that the service member is
not qualified and therefore not entitled to the
escalator position he or she would have
attained but for uniformed service, not entitled
to any help to become qualified, and that the
disabled service member must pay the
expenses to become qualified?
II.
Where an employer fails to place the returning
service member into the escalator position,
does 38 U.S.C. § 4313 require specificity in a
job offer, as held by several circuits, or does an
employer comply with USERRA where it
provides a vague offer, as held by the Fourth
Circuit?
ii
PARTIES TO THE PROCEEDING
Petitioner in this Court is Major General
Thomas P. Harwood, III (“Harwood”) who was
plaintiff in the district court and plaintiff-appellant in
the court of appeals.
CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme
Harwood is an individual.
Court
Rule
29.6,
STATEMENT OF RELATED CASES
The only pending case between the parties
other than the case at bar is Scanlon v. American
Airlines, Case No: 2:18-cv-04040, pending in Eastern
District of Pennsylvania, of which Harwood is a class
member and not a class representative.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ............... i
PARTIES TO THE PROCEEDING ........................... ii
CORPORATE DISCLOSURE STATEMENT ............ ii
STATEMENT OF RELATED CASES ....................... ii
TABLE OF CONTENTS............................................iii
TABLE OF AUTHORITIES ...................................... ix
OPINIONS BELOW ................................................... 1
STATEMENT OF JURISDICTION ........................... 2
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED ............. 2
STATEMENT OF THE CASE ................................... 2
A. Overview ..................................................... 2
B. Factual History ........................................... 3
C. Proceedings Below ...................................... 7
REASONS FOR GRANTING THE WRIT ................. 9
I. INTRODUCTION ............................................. 9
II. THERE IS CONFLICT AMONG COURTS
AS TO THE APPROPRIATE APPLICATION
OF 38 U.S.C. §§ 4312 AND 4313 ................. 11
iv
A.
SEVERAL
CIRCUIT
COURTS,
DISTRICT COURTS, AND THE U.S.
GOVERNMENT ADHERE TO THE
LITERAL LANGUAGE OF USERRA
BY APPLYING §§ 4312 AND 4313 AS
TWO DISTINCT SUBSECTIONS ................ 14
B.
THE FOURTH CIRCUIT’S IMPROPER
APPLICATION OF USERRA §§ 4312
AND 4313 UNDERMINES USERRA’S
CORE PURPOSE AND DIRECTLY
CONTRADICTS
THE
COURT’S
DECISION
IN
FISHGOLD
WARRANTING
THIS
COURT’S
REVIEW ................................................. 17
III. THE FOURTH CIRCUIT’S HOLDING
THAT USERRA DOES NOT REQUIRE
SPECIFICITY
IN
OFFERS
OF
REEMPLOYMENT IS INCONSISTENT
WITH 38 U.S.C. § 4313 AND OTHER
CIRCUIT COURTS, RESULTING IN
DIMINISHED
PROTECTIONS
FOR
SERVICE MEMBERS .................................... 20
A.
THE FIFTH, SIXTH, AND SEVENTH
CIRCUITS REQUIRE SPECIFICITY
PROTECTING SERVICE MEMBERS’
RIGHTS
TO
REJECT
REEMPLOYMENT OFFERS NOT
EQUIVALENT TO THE ESCALATOR
POSITION .............................................. 20
v
B.
BY NOT REQUIRING SPECIFICITY IN
REEMPLOYMENT, THE
FOURTH CIRCUIT’S DECISION IN
HARWOOD II IS IN DIRECT
CONFLICT WITH THE FIFTH, SIXTH,
AND SEVENTH CIRCUITS........................ 23
OFFERS OF
C.
THE FOURTH CIRCUIT’S DECISION
IN HARWOOD II ALSO CONFLICTS
SECOND, EIGHTH, AND
FEDERAL CIRCUIT PRECEDENT
CONCERNING WHAT POSITION IS
APPROPRIATE
UNDER
THE
ESCALATOR PRINCIPLE’S “LIKE
SENIORITY, STATUS, AND PAY”
REQUIREMENT WITH REGARD TO
STATUS AND SENIORITY ........................ 29
WITH
D.
THE
FOURTH
CIRCUIT’S
PRESUMPTION OF EQUIVALENCE
BETWEEN JOBS RUNS COUNTER TO
THE FIFTH CIRCUIT’S REJECTION
OF SUCH A PRESUMPTION ..................... 33
CONCLUSION ......................................................... 34
APPENDIX:
Judgment of
The United States Court of Appeals
For the Fourth Circuit
entered June 17, 2022 .................................... 1a
vi
Published Opinion of
The United States Court of Appeals
For the Fourth Circuit
Re: Affirming Judgment of the District Court
entered June 17, 2022 .................................... 3a
Order of
The United States District Court
For the Eastern District of Virginia
Re: Granting in part and Denying in part
Plaintiff’s Supplemental Petition for Award of
Attorney’s Fees And Costs
entered January 4, 2021 .............................. 19a
Order of The United States District Court
For the Eastern District of Virginia
Re: Remand from
The United States Court of Appeals
For the Fourth Circuit
Re: Recalculation of Damages
entered October 6, 2020 ............................... 31a
Judgment of
The United States Court of Appeals
For the Fourth Circuit
entered July 6, 2020..................................... 35a
Published Opinion of
The United States Court of Appeals
For the Fourth Circuit
Re: Affirming in part, Vacating in part, and
Remanding
entered July 6, 2020..................................... 37a
vii
Order of
The United States District Court
For the Eastern District of Virginia
Re: Granting in part and Denying in part
Plaintiff’s Petition for Award of Attorney’s Fees
And Costs
entered May 16, 2019................................... 60a
Memorandum Opinion and Order of
The United States District Court
For the Eastern District of Virginia
Re: Granting in Part and Denying in Part
Plaintiff’s Motion for Reconsideration of the Court’s
Order Granting Summary Judgment on Liquidated
Damages, for Permanent Injunction, and for
Award of Damages, Interest, and Equitable Relief
entered August 20, 2018 .............................. 75a
Memorandum Opinion and Order of
The United States District Court
For the Eastern District of Virginia
Re: Granting in part Plaintiff’s Motion for
Summary Judgment and Denying in part
Defendant’s Motion for Summary Judgment
entered May 23, 2018................................... 86a
Memorandum Opinion and Order of
The United States District Court
For the Eastern District of Virginia
Re: Granting in part Defendant’s Motion
To Dismiss and Denying in Part Defendant’s
Motion to Dismiss
entered August 9, 2017 ................................ 98a
viii
Order of
The United States Court of Appeals
For the Fourth Circuit
Re: Denying Petition for Rehearing and
Rehearing En Banc
entered July 18, 2022................................. 124a
38 U.S.C. § 4301.................................................... 126a
38 U.S.C. § 4302.................................................... 127a
38 U.S.C. § 4303.................................................... 127a
38 U.S.C. § 4312.................................................... 129a
38 U.S.C. § 4313.................................................... 139a
20 C.F.R. § 1002.139 ............................................. 144a
20 C.F.R. § 1002.191 ............................................. 145a
20 C.F.R. § 1002.194 ............................................. 147a
20 C.F.R. § 1002.225 ............................................. 147a
ix
TABLE OF AUTHORITIES
Page(s)
CASES
Accardi v. Pennsylvania R. Co.,
383 U.S. 225 (1966) ........................................ 26
Ala. Power Co. v. Davis,
431 U.S. 581 (1977) ........................................ 31
Alber v. Norfolk & W. Ry. Co.,
654 F.2d 1271 (8th Cir. 1981) ........................ 31
Brown v. Prairie Farms Dairy, Inc.,
872 F. Supp. 2d 637 (M.D. Tenn. 2012) ........ 16
Coffy v. Republic Steel Corp.,
447 U.S. 191 (1980) ........................................ 31
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275 (1946) ................................ passim
Ford v. Kentucky,
469 U.S. 984 (1984) ........................................ 20
Hanna v. Am. Motors Corp.,
557 F.2d 118 (7th Cir. 1977) .......................... 23
Hanna v. Am. Motors Corp.,
724 F.2d 1300 (7th Cir. 1984) ............ 23, 24, 25
Hart v. Family Dental Grp., PC,
645 F.3d 561 (2d Cir. 2011) ..................... 13, 18
x
Hembree v. Georgia Power Co.,
637 F.2d 423 (5th Cir. 1981) ........ 22, 23, 24, 33
Hill v. Michelin North America, Inc.,
252 F.3d 307 (4th Cir. 2001) .......................... 32
Jordan v. Air Prods. & Chems., Inc.,
225 F. Supp. 2d 1206 (C.D. Cal. 2022) .......... 16
Maxfield v. Cintas Corp. No. 2,
427 F.3d 544 (8th Cir. 2005) .......................... 32
Milhauser v. Minco Prod. Inc.,
701 F.3d 268 (8th Cir. 2012) .................... 29, 30
Nichols v. Dep’t of Veterans Affs.,
11 F.3d 160 (Fed. Cir. 1993) .................... 29, 30
Petty v. Metro. Gov’t of Nashville-Davidson Cnty.,
538 F.3d 431 (6th Cir. 2008) ......... 13, 15-16, 18
Ryan v. Rush-Presbyterian-St. Luke’s Med. Ctr.,
15 F.3d 697 (7th Cir. 1994) ...................... 22, 25
Serricchio v. Wachovia Securities LLC,
658 F.3d 169 (2d Cir. 2011) ..................... 29, 30
Small v. Memphis Light, Gas & Water,
141 S. Ct. 1227 (2021) .................................... 21
Stevens v. Tenn. Valley Auth.,
699 F.2d 314 (6th Cir. 1983) ........ 22, 23, 24, 27
Torres v. Texas Dept. of Pub. Safety,
142 S. Ct. 2455 (2022) (No. 20-603)......... 11, 19
Travis v. Schwartz Mfg. Co.,
216 F.2d 448 (7th Cir. 1954) .......................... 28
xi
United States v. Nevada,
3:09-CV-00314-LRH, 2012 WL 1517296
(D. Nev. Sept. 26, 2011) ........................... 10, 16
Ziober v. BLB Res., Inc.,
839 F.3d 814 (9th Cir. 2016) .......................... 21
STATUTES
28 U.S.C. § 1254(1) ..................................................... 2
38 U.S.C. § 4301(a)(1) ................................................. 2
38 U.S.C. §§ 4301(a)(1)-(3) ....................................... 10
38 U.S.C. § 4302(b) ........................................... passim
38 U.S.C. § 4303(10) ........................................... 17, 21
38 U.S.C. § 4303(12) ................................................. 31
38 U.S.C. § 4303(16) ................................................. 21
38 U.S.C. § 4311.......................................................... 7
38 U.S.C. § 4312................................................ passim
38 U.S.C. § 4312(a) ................................................... 19
38 U.S.C. § 4312(d) ................................................... 17
38 U.S.C. § 4313................................................ passim
38 U.S.C. § 4313(a)(1)(B) .......................................... 21
38 U.S.C. § 4313(a)(2)(B) .......................................... 21
38 U.S.C. § 4313(a)(3) ......................................... 21, 23
xii
38 U.S.C. §§ 4316-4319 ............................................. 13
38 U.S.C. § 4317........................................................ 19
RULE
U.S. S. Ct. R. 10 ........................................................ 19
REGULATIONS
14 C.F.R. § 67.401 ....................................................... 7
20 C.F.R. § 1002.194 ..................................... 28, 29, 30
OTHER AUTHORITIES
Air Force Demographics, AIR FORCE’S PERS. CTR.
(June 30, 2022),
https://bit.ly/3BgUGkG ............................................... 9
Kathryn Piscitelli & Edward Still,
The USERRA Manual § 1:4 (2022) .......................... 19
Lolita C. Baldor, National Guard Struggles as
Troops Leave at Faster Pace, AP NEWS (Oct. 8, 2022),
https://apnews.com/article/health-middleeast-covid-government-and-politics987f5dbc245858f372eaeeb3edc018bd ........................ 3
Major General Thomas P. Harwood III, AIR FORCE,
https://www.af.mil/About-Us/Biographies/Display/
Article/108437/major-general-thomas-p-harwood-iii/
(last visited Sept. 27, 2008) ........................................ 3
xiii
Steven Greenhouse, After the War: The Reservists;
Balancing Their Duty to Family and Nation,
N.Y. TIMES (June 22, 2003),
https://www.nytimes.com/2003/06/22/us/after-thewar-the-reservists-balancing-their-duty-to-familyand-nation.html ........................................................ 10
Zoe Manzanetti, 2021 Military Active-Duty
Personnel, Civilians by State,
GOVERNING (Feb. 1, 2022),
https://bit.ly/3TF6Qex................................................. 9
1
OPINIONS BELOW
The August 9, 2017 unreported opinion of the
United States District Court for the Eastern District
of Virginia (“District Court”) addressing American
Airlines’ Motion to Dismiss is reproduced at Pet. App.
98a (2017 WL 11318161). The May 23, 2018 opinion
of the District Court addressing the parties’ cross
motions for summary judgment is reproduced at Pet.
App. 86a (2018 WL 2375692). The August 20, 2018
opinion of the District Court addressing Harwood’s
Motion for Reconsideration is reproduced at Pet. App.
75a (2018 WL 8803959).
The July 6, 2020 reported opinion of the United
States Court of Appeals for the Fourth Circuit
(“Fourth Circuit”) affirming in part, vacating in part
and remanding is reproduced at Pet. App. 37a (963
F.3d 408) (“Harwood I”). 1 The October 6, 2020 remand
opinion of the District Court is reproduced at Pet.
App. 81a (2020 WL 6580394).
The June 17, 2022 final order of the Fourth
Circuit is reproduced at Pet. App. 3a. (37 F.4th 954)
(“Harwood II”). 2 The July 18, 2022 denial of rehearing
and rehearing en banc of the Fourth Circuit is
reproduced at Pet. App. 124a.
Citations to the Joint Appendix of Harwood’s first appeal
to the Fourth Circuit appear throughout as J.A.1.
2
Citations to the Joint Appendix of Harwood’s second
appeal to the Fourth Circuit appear throughout as J.A.2.
1
2
STATEMENT OF JURISDICTION
The Fourth Circuit entered its final judgment
on June 17, 2022. On July 18, 2022, the Fourth
Circuit denied the petition for rehearing en banc. This
Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
Harwood refers the Court to the Appendix at
Pet. App. 126a-143a.
STATEMENT OF THE CASE
A. Overview
In 1994, Congress enacted the Uniformed
Services Employment and Reemployment Rights Act
(“USERRA”). Congress’s intent in passing USERRA
was explicitly to “encourage noncareer service in the
uniformed services by eliminating or minimizing the
disadvantages to civilian careers and employment
which can result from such service.” 38 U.S.C.
§ 4301(a)(1). Even before Congress made the purpose
of USERRA clear, the Court recognized the crucial
importance of protecting the reemployment rights of
those who serve in holding that the law “is to be
liberally construed for the benefit of those who left
private life to serve their country.” Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946).
General Harwood, after returning from active
military service, attempted to exercise his rights to be
employed into the escalator position with American
3
Airlines as promised by USERRA. When American
Airlines refused to honor the literal requirements of
USERRA, Harwood was required to initiate this
litigation. While Harwood was able to prevail on some
of his claims, the decision by the Fourth Circuit
rewrote the requirements of 38 U.S.C. § 4312 and
§ 4313, and what an employer’s obligations are to
those returning from service to this Country. It
creates a dangerous and disturbing precedent that
ignores Supreme Court precedent and conflicts with
how other Circuits have interpreted USERRA. If not
reversed, the decision will discourage civilians from
serving in the uniformed service. 3
The decision warrants this Court’s review. It is
of vital importance for the Court to address this
disregard for USERRA and to protect the rights of
uniformed service men and women.
B. Factual History
Petitioner Harwood is a decorated member of
the Air Force Reserve (Ret.) and a pilot with American
Airlines (“AA”). 4 Pet. App. 5a-7a. Harwood was hired
by AA as an airline pilot in 1992. J.A.2 at 137; Pet.
App. 100a. From June 2013 through August 2015,
Harwood took a qualifying period of military leave
from AA for a tour of duty to serve as the Chief of the
Lolita C. Baldor, National Guard Struggles as Troops
Leave at Faster Pace, AP NEWS (Oct. 8, 2022),
https://apnews.com/article/health-middle-east-covidgovernment-and-politics-987f5dbc245858f372eaeeb3edc018bd.
4
Major General Thomas P. Harwood III, AIR FORCE,
https://www.af.mil/About-Us/Biographies/Display/Article/
108437/major-general-thomas-p-harwood-iii/ (last visited Sept.
27, 2008).
3
4
U.S. Military Training Mission to Saudi Arabia, U.S.
Central Command. Pet. App. 100a. During this
military service he was diagnosed with atrial
fibrillation. 5 J.A.2 at 243, 247; Pet. App. 39a. On June
3, 2015, roughly two months before the end of his tour,
Harwood contacted AA stating his intent to return to
work as a pilot. J.A.2 at 407; Pet. App. 40a. On
August 3, 2015, AA initially confirmed to Harwood
that he would be employed on September 1, 2015, as
a Boeing 737 Captain based out of LaGuardia
Airport. 6 J.A.2 at 314.
Around August 26, 2015, Jerry Shaw, AA New
York Flight Administration, advised Harwood that
AA would not reemploy Harwood until Harwood
possessed a valid First-Class Medical Certificate from
the FAA (“Medical Certificate”). J.A.2 at 101, 185-86,
327. Harwood still requested that AA reemploy him
as a pilot and allow him to use his sick leave balance
of 854 hours until he could obtain a Medical
Certificate. J.A.2 at 185-86, 327-28, 458. AA informed
Harwood that it could not return him to work as a
pilot because he was not eligible to fly without a
Medical Certificate. Id.
Harwood informed AA that AA’s policy
appeared to violate USERRA; specifically, 38 U.S.C.
§ 4312, by adding a requirement to possess a valid
Medical Certificate prior to reemployment that is not
found anywhere in USERRA. J.A.2 at 330-32.
Atrial fibrillation is a common condition involving an
irregular heartbeat. Pet. App. 39a.
6
Harwood was based out of LaGuardia Airport as a pilot
at the time of his deployment in June 2013. Pet. App. 40a-41a.
5
5
Despite AA having already acknowledged that
Harwood had met the conditions for reemployment
set out in USERRA § 4312, Pet. App. 6a, AA told
Harwood that it would not reemploy him as a pilot
without the Medical Certificate or a waiver. J.A.2 at
330; Pet. App. 41a-42a.
On September 1, 2015, Harwood emailed Scott
Hansen, Director of Flight Operations at AA, to
confirm his reemployment had begun on that date as
initially agreed. J.A.2 at 202. During an exchange of
multiple emails beginning that day, Hansen
confirmed that Harwood had met USERRA § 4312’s
requirements for reemployment but that Harwood
had not satisfied company policy regarding the
Medical Certificate, so AA would not reemploy
Harwood as a pilot. 7 J.A.1 at 275-78. Hansen stated
that AA was willing to get Harwood back to work “in
a reasonable time” and that the first step was to see
if AA could provide reasonable accommodations for
the pilot position. J.A.2 at 330. Barring that, Hansen
stated, “we can explore other paths,” referring to
USERRA § 4313. Id. Hansen concluded by asking
when Harwood was available for a meeting. J.A.1 at
276. Harwood retained counsel upon receiving this
response.
Around this same time, Hansen affirmed that
AA would extend Harwood’s period of military leave
If Harwood had developed atrial fibrillation while he was
an active pilot at AA and not while out on military leave,
Harwood would have had full access to the 854 hours of sick
leave he had accrued during his employment with AA -- this
access would have extended to the time when Harwood was
waiting to receive a Medical Certificate from the FAA. J.A.1 at
156-58; J.A.2 at 102-03.
7
6
until Harwood could obtain an FAA waiver, but AA
declined to reemploy Harwood. J.A.2 at 330-32.
On October 1, 2015, Harwood, through counsel,
advised AA in writing that he wished to be
“‘reemployed as quickly as possible so that he [could]
gain access to his 854 hours of sick leave.’” J.A.2 at
365. He also requested that if he was unable to
obtain the Medical Certificate or waiver he be
reemployed in an equivalent position in Operations
Safety and Compliance or Flight Operations, both of
which are located in Dallas, Texas. Id.
On October 22, 2015 — more than six weeks
after Harwood’s active military service ended — AA
offered to reemploy Harwood conditioned upon his
return to a different ad hoc position in the Flight
Technical Operations Group at the AA Flight
Academy in Dallas, Texas. 8 J.A.2 at 367. The ad hoc
position offer included no job description, no
indication of what the work involved, nor any means
of comparing it to the position of pilot other than AA’s
lawyer’s vague statement that it would be
“appropriate for his status” and pay the same as if
actively flying. Id. AA maintained its refusal to
reemploy Harwood as a pilot until he obtained the
AA’s offer consisted of an email to Harwood’s attorney
and read as follows: “[I]f . . . Harwood does not wish to extend
his military leave, [AA] will reemploy him in the Flight
Technical Operations Group at the Flight Academy in [Dallas],
in a position appropriate for his status. In that position,
Harwood will be compensated at the same rate he would receive
if actively flying. If . . . Harwood elects employment in the Flight
Technical Operations Group, he can continue to seek a waiver
from the FAA on his First Class Medical.” J.A.2 at 367.
8
7
Medical Certificate. Id. AA did not offer to provide all
lost wages and benefits. Id.
Harwood initially declined this offer, but
effective January 25, 2016, Harwood accepted the ad
hoc position. Pet. App. 7a. On that same day, the FAA
issued Harwood an authorization for special issuance
of a Medical Certificate under 14 C.F.R. § 67.401.
J.A.1 at 292-94. AA advised Harwood upon learning
this news that AA could return Harwood
“immediately to the line.” J.A.2 at 200.
C. Proceedings Below
Harwood sued AA in the District Court on April
24, 2017. The District Court granted AA’s motion to
dismiss as to the § 4311 discrimination claim on
August 9, 2017. Pet. App. 98a, 111a, 122a-123a. After
lengthy discovery, the parties filed cross motions for
summary judgment in the District Court on March 9,
2018. See J.A.2 at 43, 213. The District Court granted
summary judgment in favor of Harwood as to liability
and issued a memorandum opinion on May 23, 2018.
Pet. App. 86a, 96a, 97a.
After the District Court received submissions
from the parties, the District Court, without holding
an evidentiary hearing, awarded damages to
Harwood for the period of September 1, 2015 to
January 25, 2016. Pet. App. 81a, 85a.
The parties cross-appealed, and on July 6,
2020, the Fourth Circuit affirmed the District Court’s
holdings as to liability under §§ 4312 and 4313 of
USERRA. Pet. App. 50a-54a. The Fourth Circuit
remanded the case for a recalculation of damages
8
consistent with its opinion requesting that the
District Court make factual findings as to whether
the position offered to Harwood by AA’s lawyer on
October 22, 2015 was equivalent under USERRA. Pet.
App. 50a-54a, 59a.
On September 8, 2020, the District Court
ordered briefing on that issue, and the parties
submitted their briefs on September 28, 2020. See
J.A.2 at 842-43. On October 6, 2020, the District
Court reduced Harwood’s damages award to
$28,771.41, which was the back pay from September
1, 2015 through October 22, 2015. Id. at 833. The
District Court concluded, again without holding an
evidentiary hearing, that the position offered on
October 22, 2015 was equivalent in status, seniority,
pay, and benefits. Id. Harwood appealed once more to
the Fourth Circuit on the matter of whether the
District Court erred in finding that the ad hoc position
offered to Harwood on October 22, 2015 was
equivalent in status, seniority, pay, and benefits as
required under USERRA. J.A.2 at 836.
On June 17, 2022, the Fourth Circuit affirmed
the District Court’s decision, finding that the position
offered to Harwood on October 22, 2015 was
equivalent as required under USERRA and that
damages were properly calculated on remand. Pet.
App. 10a–13a, 18a.
Harwood requested a panel rehearing and
rehearing en banc of this decision rendered by the
panel of the Fourth Circuit. The Fourth Circuit
denied Harwood’s petition on July 18, 2022. Pet. App.
124a–125a.
9
REASONS FOR GRANTING THE WRIT
I. INTRODUCTION
The Fourth Circuit’s disregard for USERRA’s
purpose deeply impacts active-duty service members
and reservists who desire to return to their civilian
employment after risking their lives for the safety of
our nation. Today, there are roughly 1.195 million
active-duty service members and over 770,000
reservists across the six branches of the U.S.
military. 9 As of June 30, 2022, there are 329,479
Americans actively serving in the U.S. Air Force and
Space Force. 10 These statistics exhibit a sizable
military population whose service members, from
across the nation, pause their civilian lives to serve
our country, trusting that USERRA will protect them
when they return. When our service members fight
for this country, they fight for the entire country.
Their promised reemployment rights should not be
defined by their zip codes or judicial circuits; they
should be uniform across the country. This case
presents a sound vehicle for this Court to ensure
uniformity—and with it, peace of mind for those brave
enough to serve.
Since its inception following the September
2001 terrorist attacks, the ongoing War on Terror has
led many service members, like Harwood, to leave
their family, friends, and civilian careers behind to
Zoe Manzanetti, 2021 Military Active-Duty Personnel,
(Feb.
1,
2022),
Civilians
by
State,
GOVERNING
https://bit.ly/3TF6Qex.
10
Air Force Demographics, AIR FORCE’S PERS. CTR. (June
30, 2022), https://bit.ly/3BgUGkG.
9
10
join the military. These periods of military leave put
emotional and financial strains on military families,
as those valiant enough to serve our country “see
their incomes shrink and businesses dry up.” 11
Military leave from civilian jobs has put a “relatively
minor” burden on employers, while military families
instead bear the brunt of the strain, “feel[ing] pushed
to [their] economic breaking point[s], with reactions
running from cutting back on cable television to
selling one of the family cars.” See source cited supra
note 11. This was not Congress’ intent when USERRA
was signed into law on October 13, 1994.
USERRA serves as a solemn obligation to
service members, who voluntarily or involuntarily
take military leave, that their careers will be
reinstated without loss of seniority, status, or pay
upon return from service. USERRA’s explicit purpose
is to (1) “encourage [military service] by eliminating
or minimizing the disadvantages to civilian careers
and employment which can result from such service;”
(2) “minimize the disruption to the lives of persons
performing [military] service;” and (3) “to prohibit
discrimination against persons because of their
[military] service.” 38 U.S.C. §§ 4301(a)(1)-(3).
USERRA functions to “ensure reemployment to our
military men and women returning from military
service,” irrespective of their employer’s wishes.
11
Steven Greenhouse, After the War: The Reservists;
Balancing Their Duty to Family and Nation, N.Y. TIMES (June
22, 2003), https://www.nytimes.com/2003/06/22/us/after-thewar-the-reservists-balancing-their-duty-to-family-andnation.html.
11
United States v. Nevada, 3:09-CV-00314-LRH, 2012
WL 1517296, at *4 (D. Nev. Sept. 26, 2011).
The purpose of USERRA is unequivocal —
protect “those who left private life to serve their
country in its hour of great need.” Fishgold, 328 U.S.
at 285. Service members should not be required to
wait for a deep circuit split to ensure their financial
security. These brave men and women deserve to take
military leave—as USERRA intended—without fear
that employers will exploit the Fourth Circuit’s
outlier decision to deny benefits promised them under
the law.
II. THERE IS CONFLICT AMONG COURTS AS TO
THE APPROPRIATE APPLICATION OF 38
U.S.C. §§ 4312 AND 4313.
Despite having a lengthy and complex
procedural history, the issue for this Court to resolve
is straightforward but critically important for those
who serve our country or are considering military
service. Justice Kavanaugh, in a recent oral
argument, highlighted the importance of USERRA
protections: “We don’t know what’s going to be
happening over the next 50 days in terms of national
security and personnel. And so I think it’s important
to recognize that a significant component of the power
to wage war successfully is having personnel who are
willing to sign up, and they’re not going to be willing
to sign up.” 12 Justice Kavanaugh further noted, “And
those people need protection . . . for their jobs.” See
source cited supra note 12 at 88.
12
Transcript of Oral Argument at 89, Torres v. Texas Dept.
of Pub. Safety, 142 S. Ct. 2455 (2022) (No. 20-603).
12
The issue presented here goes to the heart of
the concerns Justice Kavanaugh raised. Reduced to
its essence, the issue presented is whether the literal
language of § 4312, as applied by the Sixth Circuit,
various district courts, and the U.S. government,
requires the immediate reemployment of the service
person, allowing the person to immediately access
their accrued employment rights and benefits. The
Fourth Circuit below complicated this issue when it
ignored whether there was a violation of § 4312 and
instead focused on whether AA violated § 4313 by
failing to promptly reemploy Harwood in an
“appropriate” position.
By framing the sole issue as “simply whether
the airline acted sufficiently promptly to meet its
burden under § 4313 to reemploy Harwood in an
appropriate position as soon as was practical under
the circumstances,” the Fourth Circuit rewrote the
employment protection Congress provided in § 4312.
Pet. App. 52a. Lest there be any doubt, the Fourth
Circuit reiterated the issue as whether AA “failed to
discharge its statutory duty promptly[,]” using
language only found in § 4313. Pet. App. 53a–54a
(finding no error in District Court’s conclusion that
AA did not “reemploy Harwood promptly in an
appropriate position.”).
This improper analysis stripped Harwood of
the employment rights promised to him by USERRA
and will harm other service members if not corrected
by this Court. Had §§ 4312 and 4313 been
independently applied to Harwood’s case, he would
have been immediately reemployed, enabling him to
access his accrued sick leave and other employment
benefits. But by commingling the requirements of
13
§§ 4312 and 4313, rather than analyzing whether
each subsection was violated individually—as the
District Court did below—the Fourth Circuit diluted
the congressional purpose of § 4312 and undermined
this Court’s holding in Fishgold. Fishgold’s mandate
is clear: a court faced with applying multiple
USERRA provisions must “give each as liberal a
construction for the benefit of the veteran as a
harmonious interplay of the separate provisions
permits.” Fishgold, 328 U.S. at 285.
This mistaken interpretation of §§ 4312 and
4313’s operation circumvents Fishgold’s holding and
conflates the distinct purposes of these crucial
provisions. While § 4312 “creates an entitlement to
reemployment” if its four conditions are satisfied,
Hart v. Family Dental Grp., PC, 645 F.3d 561, 563 (2d
Cir. 2011), § 4313 “protects only the [returning]
service person’s ‘seniority, status and pay.’” Petty v.
Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d
431, 445 (6th Cir. 2008). Though § 4312 entitles
service members to the reemployment rights and
benefits granted under § 4313 and the other
employment benefits found in §§ 4316-4319, § 4312
also acts as the gatekeeper to further analyses. If it
and § 4313 are construed to be one and the same,
there is cause for confusion among the courts and
service members as to what rights they are entitled.
The Fourth Circuit’s opinion below serves as an
example of this persistent confusion rearing its head.
14
A.
SEVERAL
CIRCUIT
COURTS,
DISTRICT COURTS, AND THE U.S.
GOVERNMENT ADHERE TO THE
LITERAL LANGUAGE OF USERRA BY
APPLYING §§ 4312 AND 4313 AS TWO
DISTINCT SUBSECTIONS.
The Fourth Circuit rightly held that AA
violated § 4313, but it ran afoul of USERRA’s clear
mandate by conflating the analysis of §§ 4312 and
4313 and rewriting § 4312 to contain a requirement
that Congress did not include. 13 The Fourth Circuit
ignored the fact that the District Court found AA
violated both §§ 4312 and 4313. The District Court’s
holding—which both appropriately outlined the
distinct functions of these two provisions 14 and
heeded Fishgold’s guidance—was explicit:
Under a holistic reading that broadly
construes
USERRA’s
protections,
Section 4313 does not add a complex
38 U.S.C. § 4302(b), when referring to USERRA, says:
“This chapter supersedes any State law (including any local law
or ordinance), contract, agreement, policy, plan, practice, or
other matter that reduces, limits, or eliminates in any manner
any right or benefit provided by this chapter, including the
establishment of additional prerequisites to the exercise of any
such right or the receipt of any such benefit.” In this case, the
Fourth Circuit also neglected to discuss or make a determination
on whether AA had violated this provision by requiring that
Harwood have a Medical Certificate before reemployment.
14
While the District Court appropriately outlined the
distinct functions of the two provisions, Harwood maintains that
it failed to properly apply the § 4313 analysis which would have
reinstated him into his correctly-identified-escalator position of
737 Captain based out of New York on September 1, 2015, with
all the rights and benefits he had when he left on June 13, 2013
and those accrued by seniority while absent.
13
15
fifth requirement to § 4312’s list, and
qualification issues addressed by § 4313
never
appear
in §
4312(d)(1)’s
exclusions. There is no doubt that
American is entitled to engage in a
§ 4313 analysis upon learning that that
General Harwood cannot fly airplanes
because he lacks a first class medical
certificate from the FAA. But the plain
language of the statutes required
American
to
re-employ
General
Harwood on September 1, 2015, even if
American had not yet identified an
appropriate position for him under []
§ 4313.
Pet. App. 93a–94a. This analysis tracks the literal
language of the statute, honors USERRA’s legislative
purpose, and abides by Fishgold’s command that
courts liberally construe USERRA. 328 U.S. at 285.
The District Court below is not alone in this
proper interpretation of §§ 4312 and 4313. The Sixth
Circuit reversed a district court decision, pointing to
its erroneous application of these two provisions. See
Petty, 538 F.3d at 434. The Sixth Circuit explained
that when a returning service member has “satisfied
the only prerequisites to § 4313—those specified in
§ 4312,” id. at 443, an employer is “not permitted to
delay or otherwise limit [the service member’s]
reemployment rights in any way.” Id. at 441 (quoting
§ 4302(b) and finding that “[b]y applying its returnto-work process to Petty, Metro . . . limited and
withheld benefits to which Petty was entitled under
USERRA.”). The Sixth Circuit emphasized that once
§ 4312 is satisfied, any “attempt to impose additional
16
prerequisites” is “wholly impermissible.” Id. at 444
(citing 38 U.S.C. § 4302(b)). This analysis correctly
construes §§ 4312 and 4313 as separate provisions
ensuring distinct rights to returning service members
and properly recognizes that § 4313’s mention of
“qualifications” has no place in § 4312’s analysis.
Numerous district courts have reached the
same conclusion. See Nevada, 2012 WL 1517296, at
*8, 12 (holding that “qualifications are relevant only
in determining the appropriate position of
reemployment under § 4313, not the existence of the
right to reemployment generally,” and recognizing
that any argument to contrary “fails to appreciate the
distinct operations of §§ 4312 and 4313”); Brown v.
Prairie Farms Dairy, Inc., 872 F. Supp. 2d 637, 645
(M.D. Tenn. 2012) (holding that “qualifications . . .
cannot be taken into account before reemployment,”
and are only considered after returning service
member has been reemployed). Indeed, the U.S.
government explicitly embraced this view in its
Nevada brief: “The ‘plain language’ of [§ 4312] ‘creates
an unqualified right to reemployment to those who
satisfy the service duration and notice requirements .
. . subject only to the defenses enumerated in § 4312,
i.e. reemployment is unreasonable, impossible or
creates an undue hardship.’” 15
Simply put, the Sixth Circuit, several district
courts, and the U.S. government all recognize the
discrete purposes of §§ 4312 and 4313—namely, that
§ 4312 operates independently from § 4313’s
15
Mem. in Supp. of the United States’ Mot. for Partial
Summ. J. at 17, Nevada, 2012 WL 1517296 (No. 83-2) (quoting
Jordan v. Air Prods. & Chems., Inc., 225 F. Supp. 2d 1206, 1208
(C.D. Cal. 2022)).
17
“qualifications” analysis and provides a separate
entitlement to reemployment. The Fourth Circuit,
however, supersedes § 4312(d) by finding a strict
qualification requirement in § 4313 despite the
“reasonable efforts” language of § 4313 as defined in
§ 4303(10), which directly contradicts such a
finding. 16 Such a finding also contradicts, or
effectively erases subsection 4302(b) from USERRA.
B.
THE FOURTH CIRCUIT’S IMPROPER
APPLICATION OF USERRA §§ 4312
AND 4313 UNDERMINES USERRA’S
CORE PURPOSE AND DIRECTLY
CONTRADICTS
THE
COURT’S
DECISION
IN
FISHGOLD
WARRANTING
THIS
COURT’S
REVIEW.
The Fourth Circuit’s decision adds an
additional requirement to § 4312, which Congress did
not prescribe, for those service members returning
from duty and seeking reemployment under
USERRA. Where the District Court held that AA
“failed to abide by § 4312’s explicit requirement that
an employee who meets § 4312’s statutory
requirements be reemployed[,]” Pet. App. 93a, the
Fourth Circuit made no such finding. Instead, as
discussed above in Section II(a), the Fourth Circuit
viewed §§ 4312 and 4313 as “interconnected,” which
led to the impermissible addition of § 4313’s
“qualifications” calculus to § 4312’s analysis. Pet.
App. 51a; see also Pet. App. 52a (“[E]ligible returning
servicemembers must be promptly reemployed an
16
38 U.S.C. § 4303(10) states that efforts are bounded only
by “undue hardship,” not by mere inconvenience or
undesirability.
18
[sic] in an appropriate position for which they are
qualified.”) (emphasis in original).
This interpretation may at first appear
inconsequential,
but
it
carries
significant
ramifications for those placing their civilian
employment on hold to serve our country. The Fourth
Circuit’s analysis substantially weakens the
protections § 4312 was intended to provide to those
service members returning to their civilian employer.
Instead of recognizing § 4312’s “entitlement to
reemployment” in its own right, Hart, 645 F.3d at 563,
the Fourth Circuit added an additional hurdle to this
entitlement: that the service member be “qualified,”
Pet. App. 52a–53a.
This “attempt to impose
additional prerequisites” to reemployment under §
4312, is, as the Sixth Circuit noted, “wholly
impermissible,” and cannot “serve as a basis for
delaying or otherwise limiting” a returning service
member’s right to reemployment. Petty, 538 F.3d at
443-44. Moreover, the Fourth Circuit’s holding runs
contrary to the decisions outlined above and thereby
perpetuates judicial confusion surrounding the
proper application of §§ 4312 and 4313.
In Harwood’s case, this flawed interpretation
brought with it real-life consequences that, if left
unaddressed, will directly impact other service
members seeking to return to their civilian
employment. Had AA followed the plain language of §
4312 as written by Congress—and, as previously
noted, as applied by numerous courts—Harwood
would have been reemployed on September 1, 2015,
allowing him to access all his employment benefits,
including his accumulated sick leave, his seniority
and other benefits under his union’s Collective
19
Bargaining Agreement, and his bumping rights
arising from USERRA until he received his Medical
Certificate. 17 In short, five years of litigation would
have been avoided.
Far from alleviating the confusion surrounding
the application of §§ 4312 and 4313, the Fourth
Circuit’s opinion below fails to recognize the distinct
role § 4312 plays in granting—subject only to the four
prerequisites found in that provision—an entitlement
to reemployment for returning service members, with
that entitlement “backstopped” by the § 4302(b)
prohibition against “additional prerequisites” or
being superseded by company policy. If USERRA’s
“liberal maxim” is to be “appl[ied] with full force and
effect,” Kathryn Piscitelli & Edward Still, The
USERRA Manual § 1:4 (2022), to ensure returning
service members “not be denied their old jobs as
reprisal for their service,” Torres v. Tex. Dep’t of Pub.
Safety, 142 S. Ct. 2455, 2461 (2022), then the crucial
role § 4312 plays in creating a strict liability
entitlement to reemployment must be clearly
understood and consistently applied across the
country.
While Supreme Court Rule 10 notes that a
circuit split may be a basis for granting certiorari,
that Rule also recognizes that this is “neither
controlling nor fully measuring th[is] Court’s
discretion.” U.S. S. Ct. R. 10. Given USERRA’s
purpose and what we ask of those who put their lives
17
Harwood was owed health benefits under 38 U.S.C.
§ 4312(a) as soon as he met the requirements for reemployment
under the statute. See 38 U.S.C. § 4317. Harwood remained
unemployed with only part-time military reserve pay and
benefits.
20
on the line to serve our country, we respectfully urge
this Court to grant certiorari on this compelling issue
and provide employers—but most importantly those
who serve—much needed clarity on the purpose of §
4312. Indeed, the Fourth Circuit’s application of §§
4312 and 4313, in contrast to the proper reading of
those provisions employed by numerous other courts,
has “spawned the sort of confusion in the lower courts
that calls for the exercise of this Court’s certiorari
jurisdiction.” Ford v. Kentucky, 469 U.S. 984, 986
(1984) (Marshall, J., dissenting).
III. THE FOURTH CIRCUIT’S HOLDING THAT
USERRA
DOES
NOT
REQUIRE
SPECIFICITY
IN
OFFERS
OF
REEMPLOYMENT IS INCONSISTENT WITH 38
U.S.C. § 4313 AND OTHER CIRCUIT
COURTS, RESULTING IN DIMINISHED
PROTECTIONS FOR SERVICE MEMBERS.
A.
THE FIFTH, SIXTH, AND SEVENTH
CIRCUITS
REQUIRE
SPECIFICITY
PROTECTING
SERVICE
MEMBERS’
RIGHTS TO REJECT REEMPLOYMENT
OFFERS NOT EQUIVALENT TO THE
ESCALATOR POSITION.
USERRA is a service members’ rights statute,
and it mandates that if a returning service member
with a service-related disability cannot qualify for
their escalator position after reasonable efforts by the
employer, the employer must reemploy the service
member in a position “equivalent in seniority, status,
and pay, the duties of which the person is qualified to
perform or would become qualified to perform with
21
reasonable efforts 18 by the employer.” 38 U.S.C.
§ 4313(a)(3). Accordingly, USERRA’s guarantee of
equivalent reemployment must be construed in a
manner that best protects the serviceperson’s
interests. “The principle of liberal construction . . . is
designed to ensure that servicemembers may take full
advantage of the substantive rights and protections
provided by a statute.” Ziober v. BLB Res., Inc., 839
F.3d 814, 819–20 (9th Cir. 2016).
Like other veteran and service member
statutes, § 4313(a)(3) protects service members
“against receiving a job inferior to that which [they]
had before entering the armed services.” Fishgold,
328 U.S. at 284. Consistent with the language of
§ 4313(a)(3) and the Court’s reasoning in Fishgold,
several circuits have held that a “veteran need not
accept an offer of reemployment which extends
anything short of the statutory guarantees” to
preserve his or her right to reemployment or his or
her right to a claim under USERRA. Stevens v. Tenn.
18
The Fourth Circuit’s decision below allowed AA to skip
its burden of proving that it engaged in “reasonable efforts” to
qualify Harwood for his escalator position. “Reasonable efforts”
in USERRA means “actions, including training provided by an
employer that do not place an undue hardship on the employer.”
38 U.S.C. § 4303(10). As such, employers must exercise
reasonable efforts up to the point of “undue hardship” to qualify
returning service members for their escalator positions. “Undue
hardship” is defined in 38 U.S.C. § 4303(16), explaining what
lengths employers must go to in making reasonable efforts to
qualify returning service members. This Court’s dicta make it
clear that USERRA “obliges an employer to restore a returning
United States service member to his prior role unless doing so
would cause an ‘undue hardship.’” Small v. Memphis Light, Gas
& Water, 141 S. Ct. 1227, 1228 (2021) (quoting 38 U.S.C.
§§ 4303(10), 4313(a)(1)(B), (a)(2)(B)). The Fourth Circuit directly
contradicts the statute in not requiring such a finding.
22
Valley Auth., 699 F.2d 314, 315 (6th Cir. 1983); see
also Hembree v. Georgia Power Co., 637 F.2d 423, 428
(5th Cir. 1981); Ryan v. Rush-Presbyterian-St. Luke’s
Med. Ctr., 15 F.3d 697, 699 (7th Cir. 1994).
In Hembree, the returning service member’s
escalator position was any apprentice position within
the General Repair Shop. 637 F.2d at 425. Because
Hembree sustained an eye injury during military
service, the company reemployed him as a clerk
instead. Id. The service member sued, arguing that
the company failed to reemploy him under USERRA’s
precursor statute. Id. In response, the company
argued that there were no equivalent positions in the
General Repair Shop and that he should have bid for
a position in the Central Meter Shop. Id. at 427. The
Fifth Circuit rejected the company’s arguments,
holding that “[w]hile plaintiff could have taken this
course, plaintiff was not required to accept a position
that did not approximate the apprentice electrician in
pay, status, and seniority. It follows that plaintiff’s
refusal to accept a position that did not fully comply
with the statutory requirements should not be held
against him.” Id. at 427–28.
Similarly, in Stevens, the Sixth Circuit held
that a veteran need not accept an unconditional offer
of employment before challenging its equivalency to
avoid loss of backpay. Stevens, 699 F.2d at 316. To
decide otherwise, “thwarts the literal terms of the
statute and demeans the value of the veteran’s service
to his country.” Id. at 316; see also Ryan, 15 F.3d at
699 (holding that veteran did not waive her
reemployment rights by refusing to accept inferior
and ill-defined position created by her employer).
23
These circuit court holdings are in harmony
with the Court’s instruction in Fishgold that a statute
that protects service members’ rights must be
interpreted broadly in favor of the service member.
Fishgold, 328 U.S. at 285. Because the disability
provisions of USERRA mandate that after reasonable
efforts, the service member be reemployed in a
position of equivalent seniority, status, and pay, the
employer must assess the service member’s career
trajectory to offer an appropriate position. If the
employer presents an inferior offer, the service
member may reject it. See Hembree, 637 F.2d at 428;
see also 38 U.S.C. § 4313(a)(3).
B.
BY NOT REQUIRING SPECIFICITY IN
REEMPLOYMENT, THE
OFFERS
OF
FOURTH CIRCUIT’S DECISION IN
HARWOOD
II
IS
IN
DIRECT
CONFLICT WITH THE FIFTH, SIXTH, AND
SEVENTH CIRCUITS.
The Fourth Circuit below deviated from the
holdings of the Fifth, Sixth, and Seventh Circuits, 19
weakening protections for returning service members
within its jurisdiction.
In the Seventh Circuit’s Hanna cases, the court
decided that the plaintiff should have been reinstated
“with all attendant rights under the collective
bargaining agreement,” and refused to penalize a
returning service member for leaving an inferior
19
The Fifth, Sixth, and Seventh Circuits require specificity
in offers of reemployment. See Hanna v. Am. Motors Corp., 557
F.2d 118, 122 (7th Cir. 1977); Hanna v. Am. Motors Corp., 724
F.2d 1300, 1312–13 (7th Cir. 1984); Hembree, 637 F.2d at 427–
28; Stevens, 699 F.2d at 316.
24
position. Hanna, 557 F.2d at 122. The Seventh Circuit
followed Fishgold in its later Hanna decision, stating
that a returning service member “steps back [into
employment] at the precise point he would have
occupied had he kept his position continuously during
the war.” Hanna, 724 F.2d at 1312–13 (quoting
Fishgold, 328 U.S. at 284-85).
In Hembree, the Fifth Circuit stated that a
returning disabled veteran is not obligated to accept
a position that does not approximate the position
which he would have had if he had not left
employment in pay, status, and seniority. Hembree,
637 F.2d at 427–28. “It follows that plaintiff’s refusal
to accept a position that did not fully comply with the
statutory requirements should not be held against
him.” Id.
In Stevens, the Sixth Circuit held that a
returning service member does not need to accept an
offer which includes anything less than what he is
owed statutorily to retain his full right to
reemployment and claims for damages. Stevens, 699
F.2d at 316.
All the above decisions point to the idea that
there is in fact a specificity requirement in USERRA.
An offer of reemployment must include all statutory
rights and requirements and must be equal to the
position that the service member would have held had
he not left employment to serve. Moreover, a service
member should not be penalized in the form of losing
his right to damages if he rejects a position which does
not meet the statutory requirements.
In affirming the District Court’s findings as to
whether the October 22 offer was an “appropriate
25
position” under § 4313, the Fourth Circuit penalized
Harwood for refusing an inferior offer of
reemployment. Pet. App. 13a. The panel reasoned
that the District Court did not abuse its discretion in
finding that the offer was “appropriate,” despite
Harwood’s argument:
that [AA]’s offer of reemployment was
vague, in that it only stated that the
position was appropriate for his status
and would be compensated at the same
rate as he would be as a pilot but failed
to outline specific benefits such as those
that were negotiated under the collective
bargaining agreement.
Pet. App. 12a.
Because of the vagueness of AA’s offer,
including its lack of inclusion of a clear definition of
his seniority, and definition of only one element of his
status (geographic location), Harwood should not be
penalized for refusing the offer. 20 J.A.2 at 367.
However, the Fourth Circuit reasoned that “USERRA
does not have a specificity requirement and, more
notably, neither Harwood nor his counsel sought
20
Congress made its intent clear that “a veteran or
reservist does not waive his or her rights under [USERRA] by
refusing an offer of reemployment which extends anything less
than full statutory guarantees, including proper seniority,
position, pay, and lost wages and benefits.” H.R. Rep. No. 10365, pt. 1, at *39 (1993) (citing Hanna, 724 F.2d at 1312–13 and
Stevens, 699 F.2d at 316). Additionally, the employer has “the
duty to disclose all positions that the veteran may be qualified to
perform,” USERRA, 70 FR 75246-01, whereas an employee has
no obligation to accept an offer that is not comparable to the
escalator position. See Ryan, 15 F.3d at 698–99.
26
further specifics about the position prior to rejecting it.
We will not now hold American Airlines accountable
for their silence.” Pet. App. 12a. (emphasis supplied).
The Fourth Circuit’s holding requires this
Court’s review because it strips a service member
desiring to return to the workforce – specifically one
who sustains an injury or whose medical condition is
aggravated during military service – of the rights
Congress promised in USERRA. The consequence of
the Fourth Circuit’s holding is contrary to the solemn
promise our government made to service members
through USERRA. Under the Fourth Circuit’s
analysis, an injured service member, who is not
concurrently able to qualify for his escalator position,
must accept any offer of any position despite the
vagueness of the offer and without any evidence of
any attempt by the employer to protect his seniority
and status.
The Fourth Circuit encourages employers to
issue vague offers, as it granted AA a presumption of
equivalence though AA only asserted two out of three
statutory criteria (equal status and pay), without
providing any support for those claims. The Court has
already recognized that when interpreting statutes
dealing with service members’ reemployment rights,
employers must be specific, and employers do not
comply by using misleading labels and definitions.
See Accardi v. Pennsylvania R. Co., 383 U.S. 225, 229
(1966). Employers in the Fourth Circuit should not be
empowered to violate USERRA and then toll their
liability with an offer of work, halfway across the
country, consisting of little more than an office
location and newly contrived title.
27
The Fifth, Sixth, and Seventh Circuits
emphasize the importance of specificity in the
reemployment offer by protecting service members’
statutory right to reject inferior positions. 21 As
discussed above, not only did the Fourth Circuit
affirm the District Court’s meager analysis as to the
appropriateness of the offer, 22 but it also held that
§ 4313 contains no specificity requirement, directly
conflicting with the purpose of USERRA and the
holdings of other circuit courts.
This is a split from the broad protections other
circuits and the Court have supported in their
decisions protecting service members’ reemployment
rights.
The employer is the party who defines the job.
See USERRA, 70 Fed. Reg. 75246-01 (“[B]ecause the
employer has greater knowledge of the various
positions and their requirements in the organization,
the burden is appropriately placed on the employer”
to disclose reemployment positions to which the
employee is entitled). The burden should not be on the
service member to ask for more information when the
employer, who creates the position, is the master of
the offer. In fact, it “demeans the veteran’s service” to
make them negotiate for statutory rights, particularly
See supra n.19.
The District Court, without explaining, held that AA
offered an appropriate position, equivalent to the “pay and
benefits that [Harwood] received as a pilot, plus equal status
within the organization.” Pet. App. 32a-34a. The District Court
relied heavily on the fact that, before remanding the issue, the
Fourth Circuit referred to the offered position as “appropriate.”
Pet. App. 33a.
21
22
28
in this case, while the service member is still
unlawfully unemployed. Stevens, 699 F.2d at 316.
Where an employer is required to “assess what
would have happened to such factors as the
employee’s opportunities for advancement, working
conditions, job location, shift assignment, rank,
responsibility, and geographical location, if he or she
had remained continuously employed” it does not
follow that an undefined offer of reemployment could
be sufficient. 20 C.F.R. § 1002.194. If the employer
cannot describe the position because it lacks
information at the time of the offer, the offered
position is not equivalent. The details of the offer
must be disclosed to facilitate its acceptance.
Otherwise, the position is a label without meaning.
Moreover, where “no firm and definite offer
was ever made either in writing or orally, there is
nothing for the petitioner to accept or refuse.” See
Travis v. Schwartz Mfg. Co., 216 F.2d 448, 455 (7th
Cir. 1954). An offer that leaves out multiple necessary
details can hardly be considered “firm” or “definite.”
Because of the Fourth Circuit’s deviation from
the precedents established in the Fifth, Sixth, and
Seventh Circuits and the Supreme Court, returning
service members, who were injured while they served,
seeking to return to their civilian jobs, lack an
important right within the Fourth Circuit that they
enjoy outside of its jurisdiction. This Court should
grant certiorari to resolve this conflict in the circuits,
and to ensure that service members’ reemployment
rights, as promised in USERRA, are always
protected.
29
C.
THE FOURTH CIRCUIT’S DECISION IN
HARWOOD II ALSO CONFLICTS WITH
SECOND, EIGHTH, AND FEDERAL
CIRCUIT PRECEDENT CONCERNING
WHAT POSITION IS APPROPRIATE
UNDER THE ESCALATOR PRINCIPLE’S
“LIKE SENIORITY, STATUS, AND PAY”
REQUIREMENT WITH REGARD TO
STATUS AND SENIORITY
Upon reemployment of a disabled returning
service member, the employer must determine the
service member’s escalator position. When analyzing
the status of the correct escalator position, the
Second, Eighth, and Federal Circuits held that in
accordance with 20 C.F.R. § 1002.194, an assessment
of an employee’s career trajectory including “what
would have happened to such factors as the
employee’s opportunities for advancement, working
conditions, job location, shift assignment, rank,
responsibility, and geographical location, if he . . . had
remained continuously employed” is required. See
Serricchio v. Wachovia Securities LLC, 658 F.3d 169,
182 (2d Cir. 2011); Milhauser v. Minco Prod. Inc., 701
F.3d 268, 272 (8th Cir. 2012); see also Nichols v. Dep’t
of Veterans Affs., 11 F.3d 160, 163 (Fed. Cir. 1993).
The Fourth Circuit deviated from those holdings by
refusing to analyze what Harwood’s career trajectory
would have been in enforcing the vague October 22 job
offer from AA as an appropriate equivalent position.
Pet. App. 10a-13a.
Further, an analysis of the offered
responsibilities and duties is also essential. Nichols,
11 F.3d at 163 (holding that where returning service
member was previously employed in position that
30
“had clear responsibilities, management duties, and
the necessary authority to carry out those duties; a
subsequent position must carry with it like
responsibility, duties and authority if it is to be of like
status and thus meet the requirements of the
statute.”). A position with “nebulously defined” duties
is simply insufficient. Id.
The returning service member’s employment
trajectory must be analyzed with respect to what job
they would have held and “the employee’s
opportunities for advancement, working conditions,
job location, shift assignment, rank, responsibility,
and geographical location, if he . . . had remained
continuously employed.” See 20 C.F.R. § 1002.194;
Serricchio, 658 F.3d at 182; Milhauser, 701 F.3d at
272. After that analysis has been performed and a job
has been provided, offered to, or accepted by the
returning service member, that job must still have
properly defined duties. Nichols, 11 F.3d at 163.
Furthermore, the returning service member must
have the same “clearly understood responsibility and
objectives” and an understanding of “the criteria by
which his success [is] to be judged.” Id. If a returning
service member’s new position does not give him the
information that he needs to be able to perceive what
success is in that position, that position is not of like
status under the statute. Id.
The Fourth Circuit, in finding that the
“nebulously defined” position offered by AA on
October 22 to be of like status, created new conflict
with the law of the Second, Eighth, and Federal
Circuits and failed to perform the required and proper
analysis under 20 C.F.R. § 1002.194.
31
While the Fourth Circuit’s conflict with the
Second, Eighth, and Federal Circuits on the “status”
analysis weighs heavy, so too does it conflict with the
Eighth Circuit’s “seniority” analysis. Part and parcel
with seniority comes such benefits that are
perquisites of seniority. The Eighth Circuit utilizes
this Court’s “two-pronged” reasonable certainty test
to determine whether a benefit of employment is a
“perquisite of seniority.” Goggin, 702 F.2d at 701
(citing Coffy v. Republic Steel Corp., 447 U.S. 191
(1980) and Ala. Power Co. v. Davis, 431 U.S. 581
(1977)).
The Eighth Circuit’s two-pronged test includes
(i) a finding of “reasonable certainty that the benefit
would have accrued if the employee had not gone into
military service;” and (ii) “the nature of the benefit
must be a reward for length of service rather than a
form of short-term compensation for services
rendered.” Id. (citing Coffy, 447 U.S. at 197-98 and
Alber v. Norfolk & W. Ry. Co., 654 F.2d 1271, 1276
(8th Cir. 1981)).
Seniority is defined under 38 U.S.C. § 4303(12)
as “longevity in employment together with any
benefits of employment which accrue with, or are
determined by, longevity in employment.” By that
definition, it becomes necessary to use the Eighth
Circuit’s two-pronged test to decide whether specific
benefits provided by an employer in a job offer to a
returning service member are perquisites of seniority.
Without such an analysis, the Fourth Circuit
determined below that, solely because Harwood
might receive the “same pay and benefits that [he]
received as a pilot” in a position which AA alleged
held “equal status” within the organization, such
32
position was the correct equivalent position. Pet. App.
12a-13a. The statute established that a position
offered to a returning service member must be equal
in seniority, pay, and status, but the Fourth Circuit
found that specific benefits were not necessary to
make a decision on the position’s equivalence. Id.
Without specific benefits being included in the
job offer, including those which Harwood was owed
under his union’s Collective Bargaining Agreement
made prior to his military leave, it was impossible for
Harwood to know with reasonable certainty whether
this October 22 offer was the correct escalator position
with the correct level of seniority. Since seniority at
AA includes benefits which are perquisites of
seniority, Harwood required specifics to accept such a
position. In the same vein, the Fourth Circuit has
weakened returning service members’ rights and
protections by not requiring that the nebulous
benefits offered were those to which Harwood would
have been entitled with “reasonable certainty.”
The Fourth and Eighth Circuits have
previously held that “a transfer from one position to
another was a denial of a ‘benefit of employment’
under USERRA.” See Maxfield v. Cintas Corp. No. 2,
427 F.3d 544, 552 (8th Cir. 2005) (citing Hill v.
Michelin North America, Inc., 252 F.3d 307, 312 (4th
Cir. 2001)). Under this precedent, an employer may
be liable for a USERRA violation if a returning service
member is transferred from a position with certain
benefits to a position with uncertain and potentially
lesser benefits. The Fourth Circuit not only fails to
apply its own precedent, it creates new conflict with
that of the Eighth Circuit in finding that a position
with uncertain benefits is equal in seniority, status,
33
and pay, to the proper escalator position of 737
Captain based out of New York.
This Court should grant certiorari to resolve
this conflict and ensure that service members’ rights
to reemployment and their benefits of employment, as
promised in USERRA, are protected regardless of
where they reside in the Country.
D.
THE FOURTH CIRCUIT’S PRESUMPTION
OF EQUIVALENCE BETWEEN JOBS RUNS
COUNTER TO THE FIFTH CIRCUIT’S
REJECTION OF SUCH A PRESUMPTION.
The Fifth Circuit rejects the existence of a
presumption of equivalence between positions which
the Fourth Circuit has read into the statute and
created with its ruling. In Hembree, the Fifth Circuit
required proof from the employer that a position was
approximately accurate to that which he would have
had if he never left to serve. 637 F.2d at 427, n.3:
If a company has two positions that
approximate the position to which a
disabled veteran would be entitled but
for his disability, the differences in the
positions might be so de minimis as to
allow the company to place the returning
veteran in either position. But such is
not the case here, for the . . . position
offered plaintiff upon his return did not
approximate the . . . position to which
plaintiff would have been entitled but for
his disability.
Id. A liberal construction of USERRA requires proof
that a position offered to a returning serviceman
approximates to that which the returning serviceman
34
“would have been entitled but for his disability.” See
id.; see also Fishgold, 328 U.S. at 282.
Under the Fourth Circuit’s ruling, an employer
may comply with USERRA by offering a position
which only identifies the department and office
location and by asserting equivalent status and pay,
without evidence. The Fourth Circuit weakens
returning service members’ rights by not requiring
employers to approximate accurately, with evidence,
the appropriate escalator position. This Court should
grant certiorari on this issue to provide clarity and
guidance on whether a presumption of equivalence
based on an employer’s representations creates an
equivalence with the position to which the returning
service member would have been entitled but for his
disability.
When a statute is largely construed in favor of
the service member across the board, the Fourth
Circuit’s holding is an outlier and is a dangerous
omission of the relevant legal considerations.
CONCLUSION
For the foregoing reasons, Petitioner
respectfully requests that this Court grant certiorari
to review the judgment of the Fourth Circuit, provide
clarity as to the proper application of USERRA
§§ 4312 and 4313, and remand. Additionally, because
this case presents an extremely important issue of
interpretation of USERRA guaranteeing our service
members re-employment, this Court should invite the
Solicitor General to file a brief in this matter
expressing the position of the United States.
35
Respectfully submitted,
/s/ Adam Augustine Carter
Adam Augustine Carter
Counsel of Record
R. Scott Oswald
Nicholas W. Woodfield
THE EMPLOYMENT LAW GROUP, PC
1717 K Street, NW, Suite 1110
Washington, D.C. 20006
(202) 261-2803
acarter@employmentlawgroup.com
Michael L. Foreman
PENN STATE LAW
CIVIL RIGHTS APPELLATE CLINIC
329 Innovation Boulevard, Suite 118
University Park, PA 16802
(814) 865-3832
Mlf25@psu.edu
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