Petition for Writ of Certiorari — Thomas P. Harwood, III, Petitioner v. American Airlines, Inc.

Supreme Court briefOct 14, 2022

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APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered June 17, 2022 .................................... 1a

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

iia

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

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

iiia

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

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

ENTERED JUNE 17, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2200(L)

(1:17-cv-00484-LO-JFA)

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant

AMERICAN AIRLINES, INCORPORATED,

Defendant - Appellee.

No. 21-1137

(1:17-CV-00484-LO-JFA)

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant

AMERICAN AIRLINES, INCORPORATED,

Defendant - Appellee.

JUDGMENT

In accordance with the decision of this court,

the judgment of the district court is affirmed.

This judgment shall take effect upon issuance

of this court’s mandate in accordance with Fed. R.

App. P. 41.

/s/ PATRICIA S. CONNER, CLERK

ENTERED JUNE 17, 2022

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2200

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant

AMERICAN AIRLINES, INCORPORATED,

Defendant - Appellee.

No. 21-1137

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant

AMERICAN AIRLINES, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Liam

O’Grady, Senior District Judge. (1:17-cv-00484-LOJFA)

Argued: March 11, 2022

Decided: June 17, 2022

Before NIEMEYER and WYNN, Circuit Judges, and

FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Floyd wrote

the opinion in which Judge Niemeyer and Judge

Wynn joined.

ARGUED:

Adam

Augustine

Carter,

THE

EMPLOYMENT LAW GROUP, PC, Washington,

D.C., for Appellant. Jason Matthew Zarrow,

O’MELVENY & MYERS LLP, Los Angeles,

California, for Appellee. ON BRIEF: Andrew D.

Howell, R. Scott Oswald, THE EMPLOYMENT LAW

GROUP, PC, Washington, D.C., for Appellant. Anton

Metlitsky, O’MELVENY & MYERS LLP, New York,

New York, for Appellee.

FLOYD, Senior Circuit Judge:

This case is back before us following a limited

remand for a recalculation of damages. We must now

address Harwood’s appeal of the district court’s new

orders on damages, attorneys’ fees, and costs.

Finding no abuse of discretion in the district court’s

new damages calculations and no clear error in the

factual determinations on which it based those

calculations, we affirm its judgment. Under our

extremely deferential review of the district court’s

fees determination, we likewise affirm.

As relevant to this opinion, Major General

Thomas Harwood, an Air Force reserve service

member and long-time American Airlines pilot,

brought suit against American Airlines pursuant to

the

Uniformed

Services

Employment

and

Reemployment Rights Act (USERRA), 38 U.S.C.

§§ 4301-35. 1 Under USERRA, military members

returning from service are entitled to reemployment

in their civilian jobs if they meet certain criteria.

§ 4301. If entitled under § 4312, they are reemployed

in accordance with stipulations set forth in § 4313.

See Butts v. Prince William Cnty. Sch. Bd., 844 F.3d

424, 430-31 (4th Cir. 2016). The default

reemployment position, called the “escalator

position,” is “the position of employment in which

the person would have been employed if the

continuous employment of such person with the

employer had not been interrupted by [military]

The full factual background for this case is set forth in our

prior opinion. Harwood v. Am. Airlines, Inc., 963 F.3d 408, 41213 (4th Cir. 2020).

service.” § 4313(a)(2)(A). If they incur a disability

during their military service that would not allow

them to assume the escalator position, the employer

must make reasonable accommodations to help them

qualify. § 4313(a)(3). Where such accommodations

cannot be made, the employer must reemploy them

to a position of similar status. Id.

In his initial Complaint, filed in April 2017,

Harwood claimed that American Airlines violated

USERRA, §§ 4312 and 4313, by delaying his

reemployment and denying him a pilot position after

a qualifying period of military leave from June 2013

to August 2015. During that tour, Harwood was

diagnosed with a heart condition and upon his

return experienced delays obtaining the necessary

Federal Aviation Administration (FAA) medical

certification to return to his pilot position operating

out of La Guardia Airport in Queens, New York.

Upon initial review at the beginning of September

2015, American Airlines acknowledged that

Harwood met the § 4312 conditions for

reemployment but also believed that it either needed

to find another position for him under § 4313 or

allow him to use military convalescence leave until

he could receive FAA clearance to fly.

After communicating this understanding to

Harwood, American Airlines requested that he

advise them of a time to discuss reemployment

options, but Harwood did not immediately respond.

On October 1, 2015, Harwood’s counsel requested

reemployment and suggested four alternate, nonpilot positions, including three with American

Airlines’ Flight Department in Fort Worth, Texas.

On October 22, 2015, American Airlines extended

two options to Harwood. First, because he was

“currently unable to qualify for a [FAA] First Class

Medical certificate,” and therefore could not qualify

to be a pilot, American Airlines offered to extend his

military leave, giving him time to seek the necessary

FAA medical clearance with “reasonable assistance”

from American Airlines. 2 J.A. 367. Alternatively,

American Airlines offered to “reemploy him in the

Flight Technical Operations Group at the Flight

Academy in [Dallas-Fort Worth], in a position

appropriate for his status.” J.A. 367. He would “be

compensated at the same rate he would receive if

actively flying.” J.A. 367. Harwood declined both

options but served several more terms of military

duty during the following months.

Harwood ultimately agreed to accept the

above offered American Airlines position in Fort

Worth with a start date of January 25, 2016.

However, on January 25, the FAA finally granted his

medical certificate. Harwood informed American

Airlines and they reinstated him as a pilot the next

day. He went through his required pilot training,

during which time he received full pay as an

American Airlines employee.

Reviewing Harwood’s initial complaint, the

district court granted summary judgment to

Harwood, reasoning that under § 4312, Harwood

should have been reemployed on September 1 and

that American Airlines’ failure to do so also violated

§ 4313. Harwood v. Am. Airlines, Inc., No. 1:17-cvService members convalescing from a disability incurred

during their service may receive additional leave of up to two

years under § 4212(e). The leave allowance does not impact the

damages calculation.

0484, 2018 WL 2375692, at *3-5 (E.D. Va. May 23,

2018). It granted summary judgment to American

Airlines on Harwood’s request for liquidated

damages under USERRA, finding no evidence that

American Airlines had acted unreasonably and in

bad faith. Id. Hearing Harwood’s motion

for

reconsideration on the liquidated damages ruling,

the court again denied liquidated damages, but

awarded back pay for September 1, 2015, to January

26, 2016, less Harwood’s military pay during that

time. Harwood v. Am. Airlines, Inc., No. 1:17-cv0484, 2018 WL 8803959, at *3 (E.D. Va. Aug. 20,

2018). The court found that American Airlines’

October 22 job offer would not impact damages

because it was a course-reversal that failed to cure

already-occurred USERRA violations. Id. Damages

totaled $50,184.75. Id. at *4. Harwood appealed,

contending that the district court erred in

determining that the airline’s violations were not

willful, in denying his request for injunctive relief,

and in reducing the damage award by income he

received for military service performed between

September 1 and January 26. American Airlines

cross-appealed, contending error in the district

court’s determination that it had not rehired

Harwood promptly and, alternatively, challenging

the determination as to the period of time for which

damages in the form of backpay were owed.

On appeal, this panel affirmed the district

court’s holdings as to liability under USERRA but

remanded for a recalculation of damages because

American Airlines should not have been held

responsible for the period between Harwood’s

rejection of the offered position and acceptance

“unless the offered position was not equivalent under

[USERRA].” Harwood v. Am. Airlines, Inc., 963 F.3d

408, 420 (4th Cir. 2020). On remand, the district

court found that American Airlines offered Harwood

an equivalent position on October 22 and reduced his

back pay to $28,771.41, the amount due for the

period from September 1—when Harwood should

have been reemployed—up to when American

Airlines offered him the equivalent position.

Harwood v. Am. Airlines, Inc., No. 1:17-CV-00484,

2020 WL 6580394, at *1-2 (E.D. Va. Oct. 6, 2020).

Specifically, it determined that the Flight Technical

Operations Group position offered to Harwood on

October 22 was appropriate under § 4313(a)(3)

because it “came with the same pay and benefits

that the Plaintiff received as a pilot, plus equal

status within the organization,” thus satisfying

§ 4313(a)(3). Id. at *1.

Harwood has also twice sought awards for

attorneys’ fees and costs in the district court. On

September 4, 2018, Harwood sought $149,131.55 in

fees and costs. Mot. for Att’y Fees, Harwood, 2018

WL 8803959 (No. 1:17-cv-0484), ECF No. 70. And on

September 20, 2018, he sought an additional

$10,845.80 to account for the filing of a reply brief.

Pl.’s Suppl. Fee Pet., Harwood, 2018 WL 8803959

(No. 1:17-cv-0484), ECF No. 86. The district court

originally awarded $68,648.83 in fees to Harwood

and $4,349.85 in costs. J.A. 823-24. After the remand

from this Court, it ordered a briefing schedule on a

supplemental petition for fees. Harwood filed a

supplemental petition for fees and costs on

November 9, 2020, seeking an additional award in

the amount of $48,509.89. J.A. 838, 846. He then

sought an additional $1,654.80 in fees to account for

the filing of a reply brief. J.A. 914, 917. The district

10a

court ultimately awarded Harwood an additional

$13,352.58 in fees and an additional $5,820.09 in

costs. J.A. 927. But it reduced its previous award of

attorneys’ fees and costs from $68,648.83 to

$63,745.34. J.A. 927. These determinations led to

combined fees and costs award of $87,267.86. J.A.

927.

Harwood now challenges the district court’s

determination as to the equivalence of the position

as the basis for its reassessed damages as well as the

methods by which the district court calculated the

new costs and fees award. We consider each in turn.

II.

We review the district court’s findings of fact

underlying the damages award for clear error. U.S.

Equal Emp. Opportunity Comm’n v. Consol. Energy,

Inc., 860 F.3d 131, 148-49 (4th Cir. 2017).

In our prior remand, we instructed the district

court to recalculate damages, withholding those

awarded for the period between Harwood’s rejection

of the offered position and ultimate acceptance

“unless the offered position was not equivalent under

[USERRA].” Harwood, 963 F.3d at 420.

Thus, the sole factual determination before

the district court on remand was whether the

position American Airlines offered to Harwood on

October 22 was equivalent to his escalator position

as a line pilot. Section 4313(a)(3)(A) instructs that

the alternative position must be one the individual is

“qualified to perform” and which is “equivalent in

11a

seniority, status, and pay.” Evaluating those

equivalencies involves determinations of fact. To

make such a determination, courts consider “the

totality of the circumstances.” Crawford v. Dep’t of

the Army, 718 F.3d 1361, 1366 (Fed. Cir. 2013)

(citation omitted). We review it for clear error.

As with any test that considers the totality of

the circumstances, certain factors cannot be singled

out as dispositive without first weighing all the other

potentially competing factors. Id. In order to

determine the appropriate reemployment position,

“[t]he employer must determine the seniority rights,

status, and rate of pay as though the employee had

been continuously employed during the period of

service.” 20 C.F.R. § 1002.193(a). Additionally, “[t]he

seniority rights, status, and pay of an employment

position include those established (or changed) by a

collective bargaining agreement, employer policy, or

employment practice[,]” and “the employee’s status

in the reemployment position could include

opportunities for advancement, general working

conditions, job location, shift assignment, rank,

responsibility, and geographical location.” Id.

Harwood contends that the legislative history

of USERRA supports his argument that “[a]

reinstatement offer in another city is particularly

violative of like status, as would be reinstatement in

a position which does not allow for the use of

specialized skills in a unique situation.” H.R. Rep.

No. 103-65, pt. 1, at 31 (1993), as reprinted in 1994

U.S.C.C.A.N. 2449, 2464. However, implementing

regulations promulgated by the Department of Labor

(DOL) specify that “[t]he reemployment position may

involve transfer to another . . . location . . . .” 20

12a

C.F.R. § 1002.194. Further, the district court’s

reasoning, citing this DOL guidance, indicates that

it did in fact take the location change and Harwood’s

indicated willingness to accept a position in Dallas

into account as part of a totality of the circumstances

analysis. See Harwood, 2020 WL 6580394, at *1.

True, the district court appears to count our

mention of the offered Flight Operations job as an

“appropriate position” as definitive rather than a

determination we explicitly instructed the district

court to find for itself. Id. In its analysis, however,

the district court does not rest on that seeming

misunderstanding in light of our remand

instructions. It goes on to state that the Flight

Operations position “came with the same pay and

benefits that the Plaintiff received as a pilot, plus

equal status within the organization[,]” all of which

is borne out in the record. Id. Harwood argues that

American Airlines’ 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. But USERRA does not have a specificity

requirement and, more notably, neither Harwood

nor his counsel sought further specifics about the

position prior to rejecting it. We will not now hold

American Airlines accountable for their silence.

Harwood’s other arguments are unpersuasive

as they do not pertain to the narrow instructions we

issued to the district court and, further, read in

obligations well beyond those imposed by the

language of USERRA itself. He argues that

13a

American Airlines’ failure to help accommodate and

place him in the escalator pilot position is a basis for

remand. But the previous deliberations in this case

dispensed with that issue. See Harwood v. Am.

Airlines Inc., No. 1:17-cv-00484-GBL-JFA, 2017 WL

11318161, at *8-9 (E.D. Va. Aug. 9, 2017); Harwood,

963 F.3d at 417. On remand, we instructed the

district court to focus solely on whether American

Airlines placed Harwood in an equivalent position

per § 4313(a)(3). The equivalence of the position, as

it bore on the determination of damages, was the

focus of the district court’s deliberations on remand

and constitutes the limits of this appeal.

In short, Harwood’s arguments fail to convince

us of the requisite clear error in the district court’s

determination as to the equivalence of the position

American Airlines offered on October 22. The district

court’s determination stands.

Harwood bases his challenge to the amount in

damages award solely on the equivalence arguments

addressed above. We review a damages award from

a lower court under an abuse of discretion standard.

Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th

Cir. 1994).

Having found that the district court did not

clearly err in its determination that the position

offered to Harwood on October 22 was equivalent

under the terms of § 4313(a)(3)(A) and finding no

other abuse of discretion in its calculation of the

appropriate amount of damages—which reflect the

amount due to Harwood for the period from

14a

September 1 through October 22—we affirm the

district court’s damages award.

Finally, Harwood challenges the district

court’s award of attorneys’ fees and costs. Our abuseof-discretion review of the district court’s fees

determination is “extremely deferential.” Grissom v.

Mills Corp., 549 F.3d 313, 322 (4th Cir. 2008).

“[B]ecause a district court has close and intimate

knowledge of the efforts expended and the value of

the services rendered, the fee award must not be

overturned unless it is clearly wrong.” Plyler v.

Evatt, 902 F.2d 273, 278 (4th Cir. 1990) (cleaned up).

The district court did not abuse its discretion in

applying the various rates and reductions to

calculate attorneys’ fees and costs awarded to

Harwood.

In its initial fee determination, the district

court found that a reasonable rate for principals and

of counsel was $450 per hour, which was a reduction

from the amount Harwood requested. According to

the court, it was a justified reduction, both because

this case was not particularly “complex” and because

there were “many instances in the billing records

where principals billed for work that could have been

done by a law clerk or a paralegal.” J.A. 817. Noting

a lack of adequate documentation, the court then

applied deductions for the following categories of

impermissible billing: clerical work, excessive presuit billing, excessive hours spent on the fee petition,

travel time, and lack of success. J.A. 818-23.

15a

The district court’s total award of $77,097.92

in attorneys’ fees based on these calculations does

not constitute an abuse of discretion. The court

employed the proper methodology: It calculated the

lodestar by multiplying a reasonable hourly rate by

the number of hours reasonably expended,

appropriately considering the relevant factors as set

forth in Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-19 (5th Cir. 1974) and as noted

above. J.A. 815-24, 918-26. Then it reduced the fee

award for lack of success and impermissible billing.

J.A. 815-24, 918-26; see also McAfee v. Boczar, 738

F.3d 81, 88 (4th Cir. 2013) (reductions for

unsuccessful claims); Robinson v. Equifax Info.

Servs., LLC, 560 F.3d 235, 244 (4th Cir. 2009)

(same).

Harwood’s primary argument in opposition to

this fee analysis is essentially that district courts

should not be permitted to make across-the-board

reductions and should instead make targeted

reductions to directly address specific issues. While

such a targeted approach, as a matter of policy,

might provide a more nuanced fee award, case law

places no such burden on the trial court. See, e.g.,

Fox v. Vice, 563 U.S. 826, 838 (2011) (“The essential

goal in shifting fees (to either party) is to do rough

justice, not to achieve auditing perfection. So trial

courts may . . . use estimates in calculating and

allocating an attorney’s time.”); Hensley v.

Eckerhart, 461 U.S. 424, 436-37 (1983) (affirming a

district court’s discretion to “identify specific hours

that should be eliminated, or . . . simply reduce the

award to account for limited success”); Doe v. Kidd,

656 F. App’x 643, 655 (4th Cir. 2016) (affirming

a “twenty-five percent reduction . . . for

16a

excessiveness”); Trimper v. City of Norfolk, 58 F.3d

68, 77 (4th Cir. 1995) (affirming the district court’s

twenty percent across- the-board reduction where

the plaintiff’s counsel devoted excessive time to

seeking attorney’s fees and failed to make

reasonable settlement offers).

Harwood’s remaining arguments take issue

with the particulars of the district court’s awards,

but these arguments fall within the heartland of

district courts’ broad discretion and cannot prevail.

See Trimper, 58 F.3d at 74. Harwood contends that

the district court should have increased his counsel’s

hourly rate to account for cost-of-living increases and

inflation. But he never requested such an increase

from the district court. See J.A. 848-60. In his second

fee petition, he specifically requested the hourly

rates the court awarded on his first fee petition. See

J.A. 890-900. Although the higher amount he

initially requested was within the applicable matrix

for the Vienna, Virginia metro area, district courts

are not required to follow any particular fee matrix.

See Newport News Shipbuilding & Dry Dock Co. v.

Holiday, 591 F.3d 219, 229 (4th Cir. 2009) (noting

that the relevant matrix is a “useful starting point to

determine fees, not a required referent” (citation

omitted)). The district court appropriately assessed

the complexity of the case, cases in which

comparable rates were awarded, and declarations

from local employment law attorneys. J.A. 816-17.

Harwood identifies no error of law or clear factual

error.

Harwood’s argument that the court should

reconceptualize what constitutes clerical time in

light of modern law practice likewise falls short. As

17a

the district court rightly noted, pre-suit time is

recoverable when it was “reasonably expended on

the litigation.” J.A. 819 (quoting Webb v. Cnty. Bd. of

Educ. of Dyer Cnty., 471 U.S. 234, 242 (1985)).

Compensable activities may include “attorney-client

interviews, investigation of the facts of the case,

research on the viability of potential legal claims,

drafting of the complaint and accompanying

documents, and preparation for dealing with

expected preliminary motions and discovery

requests.” J.A. 819 (quoting Page v. Va. State Bd. of

Elections, No. 3:13- cv-678, 2015 WL 11256614, at

*11 (E.D. Va. Mar. 11, 2015)). But “it is difficult to

treat time spent years before the complaint was filed

as having been ‘expended on the litigation[.]’” Webb,

471 U.S. at 242. The district court determined that

the pre-suit entries, describing “case status

meetings, correspondence, and settlement attempts,”

were not “the sorts of legitimate pre-suit actions

described in the caselaw.” J.A. 820. Harwood argues

that the court’s conclusion constitutes dangerous

precedent by discouraging pre-suit investigation, but

the district court based its reduction on noninvestigative tasks. J.A. 819-20. While again, as

Harwood argues, it may make policy sense to

encourage pre-suit settlement negotiations by

including them in calculations for attorneys’ fees, the

district court’s decision not to do so does not amount

to an abuse of its broad discretion.

Harwood’s other arguments similarly fail. He

does not present any evidence of the customary

practice in Northern Virginia for full or partially

reduced rates for travel time. And we will not

second-guess the district court’s decision, which falls

within the band of reasonable outcomes. Further, he

18a

does not ascribe particularized error to the district

court’s reduction of the overall fee for the

excessiveness of time spent on preparing the fee

petition, but yet again makes a policy argument

about the complexities of modern law practice that

cannot succeed under the deferential standard we

apply here.

Ultimately, Harwood fails to demonstrate that

any aspect of the district court’s fee award

determination constitutes an abuse of its broad

discretion.

III.

For the foregoing reasons, we affirm the

district court’s award of $28,771.41 in damages and

$87,267.86 for fees and costs. As long established,

district courts are best positioned to make factual

determinations concerning warranted damages and

the need for costs and fees. In the case before us, we

find no reversible error.

Accordingly, the judgment is

AFFIRMED.

19a

ENTERED JANUARY 4, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

)

MAJOR GENERAL

)

THOMAS P. HARWOOD III, )

)

Plaintiff,

)

AMERICAN AIRLINES INC., )

)

Defendant. )

)

Case No. 1:17-cv-0484

Hon. Liam O’Grady

ORDER

This matter comes before the Court on

Plaintiff’s supplemental petition for award of fees

and costs. Dkt. 115. For the following reasons, the

supplemental petition is GRANTED IN PART and

DENIED IN PART. The Court awards $13,352.58

in attorney’s fees and $5,820.09 in costs, for a total

award of $19,172.67.

BACKGROUND

The Court does not rule on a blank slate for

purposes of this supplemental petition. On May 23,

2018, the Court granted Plaintiff summary judgment

on Counts II and III, and granted Defendant

summary judgment on Plaintiffs request for

20a

liquidated damages. See Dkts. 53, 54. On August 20,

2018, the Court granted in part and denied in part

Plaintiff’s

motion

for

damages

and

for

reconsideration. Dkt. 66. It awarded $50,184.75 in

compensatory damages but denied Plaintiffs request

for injunctive relief. See id. The parties filed crossappeals of the Court’s Orders. See Dkts. 69, 81. In

his appeal, Plaintiff sought reinstatement of Count I,

liquidated damages, injunctive relief, and more

compensatory damages. See Dkt. 69. Defendant, for

its part, challenged the Court’s grant of summary

judgment to Plaintiff on Counts II and III, as well as

the Court’s calculation of backpay. See Dkt. 81.

On May 16, 2019, during the pendency of the

parties’ cross-appeals, the Court granted in part and

denied in part Plaintiffs motion for attorney’s fees

based on the initial proceedings, awarding Plaintiff

$72,998.68 in attorney’s fees and costs. See Dkt. 93.

The parties then filed a stipulated motion to stay the

Court’s award until the Fourth Circuit rendered its

final decision on appeal. Dkt. 94. The Court granted

this stipulated motion. Dkt. 95.

On July 6, 2020, the Fourth Circuit issued its

decision, which affirmed the Court’s judgment in

virtually every respect except for the relevant

damages period. See Dkt. 96. The Court’s initial

Order calculated backpay based on a period running

from September 1, 2015 to January 25, 2016. The

Fourth Circuit, by contrast, determined that

Plaintiff was not entitled to backpay for the period

following October 22, 2015, so long as Defendant had

offered Plaintiff an “equivalent position in terms of

seniority, status, and pay” on that date. See

Harwood v. American Airlines, Inc., 963 F.3d 408,

21a

419-420 (4th Cir. 2020). The Fourth Circuit

remanded the case for the Court to “make findings

as to the appropriateness of the position offered” by

Defendant to Plaintiff under the Uniformed Services

Employment and Reemployment Rights Act

(“USERRA”). On remand, the Court determined that

Defendant had, in fact, offered Plaintiff an

“appropriate position” on October 22, 2015 pursuant

to USERRA. See Dkt. 108. The Court therefore found

that Plaintiff was entitled to backpay only through

that date, with his military earnings offset. Id. at 23. This ruling reduced Plaintiffs damages award

from $50,184.75 to $28,771.41. Id. at 3.

On November 9, 2020, Plaintiff filed a

supplemental petition for attorney’s fees and costs,

which sought additional amounts based on the

proceedings on appeal and remand. Dkt. 115.

Defendant filed an opposition on November 30, 2020

(Dkt. 119), and Plaintiff submitted a reply on

December 7, 2020 (Dkt. 120). The supplemental

petition is now ripe for review.

II.

LEGAL STANDARD

USERRA provides that “the court may award

any such person who prevails in such action or

proceeding reasonable attorney fees, expert witness

fees, and other litigation expenses.” 38 U.S.C.

§ 4323(h)(2). The Court has discretion in

determining the appropriate amount to be awarded

under this statutory scheme, McDonnell v. Miller Oil

Co., 134 F.3d 638, 640 (4th Cir. 1998), but “there

must be evidence supporting the reasonableness of

[the] fees.” See United Mktg. Solutions. Inc. v.

Fowler, 2011 WL837112, at *4 (E.D. Va. Mar. 2,

22a

2011). The party requesting attorney’s fees bears the

burden of establishing the reasonableness of its fee

request. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.

1990); Cook v. Andrews, 7 F. Supp. 2d 733, 736 (E.D.

Va. 1998). Reasonableness is established “both by

showing the reasonableness of the rate claimed and

the number of hours spent.” Rehab. Ass’n of Va., Inc.

v. Metcalf, 8 F. Supp. 2d 520, 527 (E.D. Va. I 998).

The Fourth Circuit has established a threestep process for determining the reasonableness of

attorney’s fees. Smith v. Loudoun Cnty. Pub. Schs.,

2017 WL176510, at * I (E.D. Va. Jan. 17, 2017).

First, the Court must “‘determine the lodestar

figure by multiplying the number of reasonable

hours expended [by] a reasonable rate.’” McAfee v.

Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (quoting

Robinson v. Equifax Info. Servs. LLC, 560 F.3d 235,

243 (4th Cir. 2009)). In deciding what constitutes

reasonable hours expended and a reasonable rate,

courts are guided by the following twelve factors:

(1) the time and labor expended; (2) the

novelty and difficulty of the questions

raised; (3) the skill required to properly

perform the legal services rendered;

(4) the attorney’s opportunity costs in

pressing the instant litigation; (5) the

customary fee for like work; (6) the

attorney’s expectations at the outset of

the litigation; (7) the time limitations

imposed by the client or circumstances;

(8) the amount in controversy and the

results obtained; (9) the experience,

reputation, and ability of the attorney;

23a

(10) the undesirability of the case

within the legal community in which

the suit arose; (11) the nature and

length of the professional relationship

between attorney and client; and

(12) attorneys’ fees awards in similar

cases.

Robinson, 560 F.3d at 243-44 (citing Barber v.

Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir.

1978)). Courts need not address all twelve Robinson

factors. See Moore v. SouthTrust Corp., 392 F. Supp.

2d 724, 733 (E.D. Va. 2005). They “only need discuss

in detail ‘those factors that are relevant to its

determination of the reasonable amount of attorney’s

fees to award in each particular case.’” Kennedy v. A

Touch of Patience Shared Housing Inc., 779 F. Supp.

2d 516, 526 (E.D. Va. 2011); Dollar Tree Stores, Inc.

v. Norcor Bolingbrook Assocs., LLC, 699 F. Supp. 2d

766, 768 (E.D. Va. 2009). For example, a court has

no obligation to consider factors that are “subsumed

within the initial calculation of hours expended at a

reasonable hourly rate.” Freeman v. Poller, 2006

WL2631722, at *2 (W.D. Va. Sept. 13, 2006) (citing

Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983));

see also McAfee, 738 F.3d at 91 (observing that “[t]o

the extent that any of the [Robinson] factors has

already been incorporated into the lodestar

analysis,” such factors are not later considered a

second time to make an upward or downward

adjustment to the lodestar figure because doing so

would “inappropriately weigh” them).

Second, after a Court determines the “lodestar

figure,” it must “subtract fees for hours spent on

unsuccessful claims unrelated to successful ones.”

24a

Robinson, 560 F.3d at 244 (internal quotation marks

and citation omitted).

Third, the Court awards “some percentage of

the remaining amount, depending on the degree of

success enjoyed by the plaintiff.” Robinson, 560 F.3d

at 244 (internal quotation marks and citation

omitted). The Court determines this amount based

on the individual facts and circumstances of each

case. Carroll v. Wolpoff & Abramson, 53 F.3d 626,

628 (4th Cir. 1995).

III.

DISCUSSION

This Order will focus primarily on the fees

and costs sought by Plaintiff in connection with

proceedings following the Court’s entry of the

stipulated stay on June 11, 2019. Dkts. 94, 95. It will

only rehash the prior award of attorney’s fees and

costs (Dkt. 93) insofar as Defendant now claims that

a further reduction of that award is warranted given

the diminution of Plaintiffs damages on remand.

Beginning with Plaintiffs post-stay billing,

Defendant does not object to the reasonableness of

the charged rates. See 0kt. 119, at 5 (“American

generally does not contest the reasonableness of the

rates cited in Plaintiffs supplemental petition[.]”);

see also Dkt. 120, at 1-2. Rather, Defendant takes

issue with the fee request’s failure to account for

Plaintiffs partial “degree of success” on appeal and

remand, along with the nature of some of the work

for which Plaintiff billed.

The outcome of the litigation following the

Court’s initial summary judgment Order is

undisputed. Plaintiffs appeal (Dkt. 69) was entirely

25a

unsuccessful. Plaintiff’s defense of Defendant’s crossappeal (Dkt. 81) was partially successful, as the

Fourth Circuit sided with Plaintiff on every issue

except the relevant period during which Plaintiff

was entitled to backpay. See Harwood, 963 F.3d at

419-420. Plaintiffs defense of his initial damages

award on remand was entirely unsuccessful; all

ground that could have been ceded based on the

Fourth Circuit’s ruling was ceded. See Dkt. 108. In

sum, all issues previously decided remain unsettled

after appeal and remand, with the exception of the

quantum of Plaintiffs damages.

Plaintiff acknowledges that he cannot recover

attorney’s fees for his failed appeal if that appeal can

be distinguished entirely from his successful

litigative efforts. See Dkt. 120, at 2 (citing Hensley v.

Eckerhart, 461 U.S. 424, 440 (1983)). Plaintiff

therefore argues that his failed appeal and his

partially successful defense of Defendant’s crossappeal are inseverable, as they stem from the “same

nucleus of operative facts.” Dkt. 120, at 3.

When analyzing separate issues in petitions

for attorney’s fees, Courts have referenced the

familiar “common core of operative fact’ standard

that Plaintiff invokes. See, e.g., Hensley, 461 U.S. at

435; Brodziak v. Runyon, 145 F.3d 194, 197 (4th Cir.

1998). Use of this standard makes perfect sense

when a claim turns on facts. This occurs typically at

the trial level. See, e.g., Andrade v. Aerotek, Inc., 852

F. Supp. 2d 637, 640 (D. Md. 2012).

In this appeal, however, the parties primarily

disputed legal issues. When legal issues are in

contest, the relevant inquiry centers on their

26a

relationship. See Hensley, 461 U.S. at 435

(discussing circumstances in which multiple claims

“will involve a common core of facts or will be based

on related legal theories”) (emphasis added). A legal

contention that USERRA benefits can be offset by

military pay, for example, is “distinct in all respects”

to a legal contention that USERRA requires an

employer to rehire returning servicemembers as

soon as the employer determines that USERRA’s

criteria are satisfied. See Harwood, 963 F.3d at 416.

In this case, the only dispositive factual issues

decided by the Fourth Circuit pertained to Plaintiffs

claims. See, e.g., id at 415-16 (upholding the Court’s

denial of Plaintiffs request for liquidated damages

because “the complaint’s factual allegations of

discriminatory intent were far too attenuated to

make them relevant to the airline’s conduct in

2015”). Defendants’ arguments, on the other hand,

were strictly legal; they challenged the Court’s

statutory interpretation of USERRA. Defendants’

legal arguments were also ‘“distinct in all respects”

from Plaintiffs legal arguments, which focused on

discrimination, liquidated damages, injunctive relief,

and earnings offsets. See generally id. Accordingly,

the Court finds that Plaintiffs partially successful

defense of Defendant’s cross appeal is “distinct in all

respects” from Plaintiffs entirely unsuccessful appeal

of the Court’s summary judgment Order.

See

Hensley, 461 U.S. at 440. Fees associated with this

appeal, like fees billed in connection with Plaintiffs

failed efforts to defend his post-October 22, 2015

damages award on remand, are not compensable.

See Robinson, 560 F.3d at 244 (“The court ... should

subtract fees for hours spent on unsuccessful claims

unrelated to successful ones.”) (citing Grissom v. The

27a

Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008))

(citation marks omitted); see e.g., Harper v. BP

Exploration & Oil, Inc., 3 F. App’x 204, 208 (6th Cir.

2001); Newhouse v. McCormick & Co., 130 F.3d 302,

304 (8th Cir. 1997); Thompson v. Gomez, 45 F.3d

1365, 1368-69 (9th Cir. 1995); Evans v. City of

Evanston, 941 F.2d 473, 476 (7th Cir. 1991).

Accordingly, and consistent with the legal

principles set forth in the prior Order (Dkt.93), the

Court awards the following attorney’s fees by

category:

The Fourth Circuit rejected 75% of Defendant’s primary

contentions. First, it found that Defendant failed to reemploy

Plaintiff “promptly” under the meaning of §§ 4312 and 4313 of

USERRA. Harwood, 963 F.3d at 416-17. Second, it “agree[d]

with the district court that the backpay period began

September l.” Id. at 419. Finally, it “reject[ed] American

Airlines’ argument that the period from September 4 to October

1 be excluded [from the backpay calculation] on the ground that

Harwood failed to engage in the deliberative proceed.” Id. Only

with respect to the period after October 22, 2015, “when

American Airlines extended Harwood an offer,” did the Fourth

Circuit side with Defendant. See id. at 419-20.

28a

29a

Defendant also asks the Court to reduce its

prior fee award by an additional 20%, because

Plaintiffs recovery was lessened from $50,184.75 to

$28,771.41. See Dkt. 118, at 11; Dkt. 108. The

Fourth Circuit, citing U.S. Supreme Court

precedent, makes clear that, “in fixing fees, [a Court]

is obligated to give primary consideration to the

amount of damages awarded as compared to the

amount sought.” Hetzel v. Cry. of Prince William, 89

F.3d 169, 173 (4th Cir. 1996) (citing Farrar v. Hobby,

506 U.S. 103, 114 (1992)). At the same time, the

Court is cognizant that draconian reductions to fee

awards based on a partial lack of success may

operate to undermine attorneys’ incentives to litigate

and, by extension, vindicate socially important civil

rights. See N.C. Dep’t of Transp. v. Crest St. Council,

Inc., 479 U.S. 6, 19 (1986) (Brennan, J., dissenting).

With these countervailing interests in mind, the

Court will reduce the initial fee award by an

additional 5%, rather than the 20% requested by

Defendant. See Dkt. 93, at 10; Dkt. 118, at 11. This

reduces attorney’s fees in the first Order from

$68,648.83 to $63,745.34.

Finally, the Court will not disturb its prior

award of $4,349.85 in costs to Plaintiff. Id. at 11.

Though the Court will order reimbursement of

Plaintiffs appellate filing fee, see Davis v. Advocate

Health Ctr. Patient Care Exp., 523 F.3d 681, 685 (7th

Cir. 2008), it will award him the remaining

$5,820.09 in costs sought in his supplemental

petition because he remains a prevailing party under

USERRA.

30a

IV.

CONCLUSION

For the reasons set forth above, Plaintiff’s

supplemental petition for award of attorney’s fees

and costs, Dkt. 115, is GRANTED IN PART AND

DENIED IN PART. The Court awards $13,352.58

in attorney’s fees and $5,820.09 in costs, for a total

award of $19,172.67.

The Court also reduces the attorney’ s fees it

awarded in its prior Order (Dkt. 93) from $68,648.83

to $63,745.34. Combining the two petitions (Dkts.

70, 115), the Court awards $87,267.86 in attorney’s

fees and costs to Plaintiff. The Clerk’s office is

DIRECTED to reimburse Plaintiff’s appellate filing

fee of $505.00.

It is SO ORDERED.

January 4, 2021

Alexandria, Virginia

/s/ Liam O’Grady

Liam O’Grady

United States District Judge

31a

ENTERED OCTOBER 6, 2020

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

)

MAJOR GENERAL

)

THOMAS P. HARWOOD III, )

)

Plaintiff,

)

AMERICAN AIRLINES INC., )

)

Defendant. )

)

Case No. 1:17-cv-0484

Hon. Liam O’Grady

ORDER

This case comes before the Court on remand

from the Fourth Circuit Court of Appeals for

recalculation of damages. After consideration of the

parties' briefs on the issue, the Court finds that

Plaintiff General Harwood is entitled to $28,771.41

in damages.

BACKGROUND

The Plaintiff is a pilot with Defendant

American Airlines and a member of the Air Force

Reserves. After a tour of duty which ended in the

summer of 2015, the Plaintiff requested employment

as the captain of a Boeing 737 airplane based in New

York. However, the Plaintiff had been diagnosed

with atrial fibrillation during his tour of duty and

32a

could not gain medical clearance to resume work as

a pilot at that time. The Defendant offered the

Plaintiff alternate employment with its Flight

Technical Operations Group, based in Dallas, Texas

on October 22, 2015, and the Plaintiff accepted that

position on January 25, 2016. On the same day, the

Plaintiff received permission to fly, and the

Defendant reassigned him to a pilot position the next

day.

The Plaintiff brought this action against the

Defendant in April 2017 under the Uniformed

Services Employment and Reemployment Rights Act

(USERRA). The Plaintiff claimed that the Defendant

failed to rehire him promptly, violating USERRA

and causing him injury in the form of lost wages,

and that the Defendant discriminated against him

as a member of the military, also violation of

USERRA. This Court dismissed the discrimination

claim but awarded the Plaintiff over $50,000 in

damages based on the Defendant's failure to rehire

the Plaintiff promptly.

The Plaintiff appealed this Court's decision to

the Fourth Circuit, which affirmed the decision in

part and remanded it to this Court solely on the

issue of the calculation of damages.

II.

DISCUSSION

The Fourth Circuit instructed this Court to

recalculate damages consistent with the following

presumptions: that the Plaintiff is entitled to

backpay damages for the period of time between

September 1 and October 22; and that the Plaintiff is

not entitled to backpay damages for the period of

time between October 22 and January 25.

33a

The Plaintiff has failed to sway the Court that

he is not entitled to backpay for the period October

22 through January 25. The Defendant offered the

Plaintiff employment in a specially created position

in its Flight Technical Operations Group in Dallas

on October 22; the Fourth Circuit referred to this as

an “appropriate position.” Harwood v. American

Airlines, Inc., 963 F.3d 408. 417 (4th Cir. 2020). The

position came with the same pay and benefits that

the Plaintiff received as a pilot, plus equal status

within the organization. The Plaintiff eventually

accepted the position on January 25. However, he

argues in his brief on this issue that he accepted the

position only because he required employment, not

because it satisfied his expectations. Specifically, the

Plaintiff was dissatisfied with the location of the

position in Dallas, Texas.

The Plaintiff is estopped from claiming that

the position in Dallas was unsatisfactory. He

through counsel, communicated on October 1 a list of

four positions in which he was interested, three of

which were located in Dallas. Furthermore,

USERRA does not require reemployment in the

employee’s preferred location or the location where

he previously held a position. 20 C.F.R. § l002.194

(“The reemployment position may involve transfer to

another.

location. . .”). Therefore the Plaintiff cannot

overcome the presumption that he is not entitled to

backpay after October 22, because the Defendant

had made employment available to him which he did

not accept.

34a

The Defendant makes no effort in its brief to

overcome the presumption that the Plaintiff is

entitled to backpay for the period from September 1

to October 22, and the Court so finds.

The Court awards the Plaintiff damages of

$28,771.41, which is the amount of backpay the

Plaintiff is entitled to for the period from September

l to October 22, 2015; this calculation includes

interest and is offset by the Plaintiff’s military

earnings during this time period in accordance to

this Court’s prior ruling which was affirmed by the

Fourth Circuit. Harwood, 963 ·F.3d at 41 9.

It is SO ORDERED.

October 6, 2020

Alexandria, Virginia

Judge

/s/ Liam O’Grady

Liam O’Grady

United States District

35a

ENTERED JULY 6, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-2033 (L)

(1:17-cv-00484-LO-JFA)

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant

AMERICAN AIRLINES, INC.,

Defendant - Appellee.

No. 18-2074

(1:17-cv-00484-LO-JFA)

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellee

AMERICAN AIRLINES, INC.,

Defendant - Appellant.

36a

JUDGMENT

In accordance with the decision of this court,

the judgment of the district court is affirmed in part

and vacated in part. This case is remanded to the

district court for further proceedings consistent with

the court's decision.

This judgment shall take effect upon issuance

of this court's mandate in accordance with Fed. R.

App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

37a

ENTERED JULY 6, 2020

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-2033

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellant,

AMERICAN AIRLINES, INC.,

Defendant - Appellee.

No. 18-2074

MAJOR GENERAL THOMAS P. HARWOOD, III,

Plaintiff - Appellee,

AMERICAN AIRLINES, INC.,

Defendant - Appellant.

Appeals from the United States District Court for

the Eastern District of Virginia, at Alexandria.

Liam O’Grady, Senior District Judge.

(1:17-cv-00484-LO-JFA)

Argued: January 31, 2020

Decided: July 6, 2020

38a

Before NIEMEYER, WYNN, and FLOYD, Circuit

Judges.

Affirmed in part, vacated in part, and remanded by

published opinion. Judge Niemeyer wrote the

opinion, in which Judge Wynn and Judge Floyd

joined.

ARGUED:

Adam

Augustine

Carter,

EMPLOYMENT LAW GROUP, PC, Washington,

D.C., for Appellant/Cross-Appellee. Anton Melitsky,

O’MELVENY & MYERS LLP, New York, New York,

for Appellee/Cross-Appellant. ON BRIEF: Andrew

D. Howell, R. Scott Oswald, Nicholas Woodfield,

THE

EMPLOYMENT

LAW

GROUP,

PC,

Washington, D.C., for Appellant/Cross-Appellee.

Jason M. Zarrow, O’MELVENY & MYERS LLP,

Washington, D.C., for Appellee/Cross-Appellant.

NIEMEYER, Circuit Judge:

In this case, a member of the uniformed

services claims relief from his civilian employer for

not rehiring him promptly after he completed a tour

of duty, as required by the Uniformed Services

Employment and Reemployment Rights Act

(“USERRA”).

As Major General Thomas P. Harwood neared

completion of a tour of duty with the United States

Air Force Reserve — which was scheduled to end on

August 31, 2015 — he sought to return to his former

employment as a pilot with American Airlines, Inc.

In response to his request, American Airlines

39a

confirmed that Harwood would be reemployed in his

requested position as of September 1, 2015. But

when Harwood thereafter disclosed that during his

tour of duty he had been diagnosed with atrial

fibrillation (a condition involving an irregular

heartbeat) and therefore was unable to secure the

required medical clearance from the Federal

Aviation Administration (“FAA”) to serve as a pilot,

the airline told Harwood that it could not rehire him

as a pilot but that it could “explore other paths.”

Following further communications between the

parties, American Airlines offered Harwood an

alternative position on October 22, 2015, which

Harwood initially turned down. After several

months, however, Harwood accepted the alternative

position and was accordingly reemployed by the

airline on January 25, 2016. On that day, Harwood

also obtained a waiver from the FAA that entitled

him to serve again as a pilot, and the next day,

American Airlines reassigned him to a pilot position,

which he continues to hold.

Harwood commenced this action in April 2017

under USERRA to recover damages he incurred from

September 1, 2015, to January 25, 2016, due to the

airline’s failure to reemploy him promptly, as

required by the Act. He also claimed that, during the

rehiring process, the airline discriminated against

him on the basis of his uniformed service, also in

violation of the Act.

The district court dismissed Harwood’s

discrimination claim but granted him judgment on

his claim that American Airlines failed to rehire him

promptly and awarded him slightly more than

$50,000 in damages. The court, however, rejected

40a

both Harwood’s claim that the airline’s action was

“willful,” which would have entitled him to

liquidated damages, and his request for injunctive

relief.

Harwood filed this appeal, contending that the

district court erred (1) in dismissing his

discrimination claim; (2) in determining that the

airline’s violations were not willful; (3) in denying

his request for injunctive relief; and (4) in reducing

the damage award by income he received from the

Air Force for service performed during the period of

delay. American Airlines filed a cross-appeal,

contending that the district court erred (1) in

concluding that the airline did not rehire Harwood

promptly; and (2) alternatively, in determining the

period of time for which Harwood was entitled to

damages in the form of backpay.

For the reasons that follow, we affirm on all

issues of liability but vacate the damage award and

remand for a recalculation of damages.

Harwood was first employed by American

Airlines as a commercial pilot in 1992. During his

employment he also served in the Air Force Reserve

and, from time to time, took leave to fulfill his

military commitment. From June 2013 to August

31, 2015, Harwood took leave to serve a tour of duty

in Saudi Arabia, and before the end of that tour, on

June 3, 2015, he contacted the New York Manager of

Flight Crew Administration of American Airlines to

inform the airline that he intended to return to work

on completion of his tour. He requested that he be

assigned as a domestic flight captain of a Boeing

41a

737, based out of LaGuardia Airport in New York,

his base before taking leave for his tour of duty.

American Airlines responded on August 3, 2015,

confirming that Harwood would be reemployed in

the requested position on September 1, 2015, and

informing him that his retraining would begin on

September 5, 2015.

During this same period, Harwood began the

process of obtaining a “first-class medical

certificate,” which was required by the FAA for

commercial pilots. In late July or early August,

however, he discovered that his ability to obtain the

certificate was impeded by the fact that while he was

on his tour of duty, he had been diagnosed with

atrial fibrillation. In August 2015, Harwood

requested that the FAA waive the certification

requirement, and he sent the agency the necessary

documentation for a waiver. He was not, however,

cleared for flight at that time. With the start of his

pilot retraining approaching, Harwood informed the

airline about this problem on August 20, 2015. The

airline’s New York Manager of Flight Crew

Administration responded, asking Harwood to “let

[the airline] know as soon as possible if the medical

is going to take some time so it [could] avoid setting

up a training that [Harwood] [would] not be able to

attend.” The Manager then called Harwood on

August 26 to discuss the situation further. During

that conversation, Harwood said that he would like

to be reemployed as a pilot notwithstanding his lack

of a medical certificate and noted that he had a sick

leave balance of 854 hours that he could use while he

tried to obtain clearance to fly. The Manager

informed Harwood, however, that the airline could

42a

not reemploy him as a pilot without the medical

certificate or a waiver.

On September 1, 2015, the day on which

Harwood was scheduled to be reemployed, he

emailed Scott Hansen, the airline’s Director of Flight

Operations, to obtain confirmation that his

employment was beginning on that date. Hansen

responded that Harwood could be returned to active

employment, “presuming [he] meet[s] USERRA

guidelines and company policy for reemployment. So

long as you have a current and valid medical, and

are available for training, you’re good to go.”

Harwood wrote back by email that he did not yet

have the certificate but that he had met all the

conditions for reemployment set forth in USERRA.

In response, on September 4, 2015, Hansen wrote:

It looks like you meet the general

requirements for reemployment under

USERRA (qualifying discharge, timely

return, etc.) and we’re willing to put

you back to work in a reasonable time.

In my view, your situation isn’t so much

centered on § 4312, which deals with

general reemployment. It’s really more

of a § 4313 issue involving your

reemployment

position.

Assuming

you’re qualified to fly, we’re fully

committed to getting you back on the

line with the same seniority etc. It

seems to me, however, that you’re

telling us you’re not medically qualified

to fly which probably puts us under

§ 4313(a)(3) assuming you have a

43a

disability that was incurred in or

aggravated while you were serving. If

so, our first goal is to try to work with

you to see if we can make any

reasonable accommodations that will

get you back to your position as a line

pilot

If there’s nothing we can do to

reasonably accommodate you so that

you can return to flying status, then we

can explore other paths. . . .

Please let me know when you can have

a meeting or a call to discuss our

options. I’ll include HR in the process. I

look forward to talking to you.

After receiving Hansen’s email, Harwood

retained counsel who wrote the airline on October 1,

2015, stating that Harwood’s goal was to be

“reemployed as quickly as possible so that he [could]

gain access to his 854 hours of sick leave.” Counsel

requested that Harwood be reemployed as a pilot or,

if he were unable to obtain a medical clearance from

the FAA, in a position of comparable status and pay

in Operations Safety and Compliance or Flight

Operations, located in Dallas, Texas. American

Airlines responded on October 22, 2015, offering to

extend Harwood’s military leave while he continued

to seek a waiver of the medical certificate

requirement or alternatively to employ him in a

custom-made position in the airline’s Flight

Technical Operations Group in the Flight

Department in Dallas. The airline explained that

this position would be “appropriate for his status”

and be compensated “at the same rate he would

44a

receive if actively flying.” Harwood declined this

offer, at least at that time.

During the next three months, Harwood spent

time on active duty with the Air Force and received

income and benefits from the military for doing so.

On January 25, 2016, however, he accepted

American Airlines’ offer of reemployment in the

custom-made position in Dallas. On that same day,

Harwood also received a waiver of the medical

certificate requirement from the FAA. Accordingly,

the airline reassigned Harwood the next day to the

position of a Boeing 737 domestic flight captain.

Harwood has been employed as a pilot by the airline

ever since that date and has taken and returned

from additional military leave without incident.

Over a year later — in April 2017 — Harwood

commenced this action under USERRA, alleging that

the airline discriminated against him as a member of

the uniformed services, in violation of 38 U.S.C.

§ 4311, and that it failed to reemploy him promptly

following his tour of duty that ended August 31,

2015, in violation of §§ 4312 and 4313.

The district court granted the airline’s motion

to dismiss Harwood’s discrimination claim brought

under § 4311 on the ground that, under its

interpretation, “§ 4311 protects veterans from

discrimination after they have been reemployed

following deployment, and [Harwood] has failed to

plead any facts that demonstrate that [he] was

discriminated against subsequent to his January 25,

2016 reemployment.” And on the parties’ crossmotions for summary judgment, the court

(1) granted judgment to Harwood on his claims

45a

under §§ 4312 and 4313, concluding that American

Airlines failed to rehire him promptly; (2) rejected

Harwood’s claim for liquidated damages based on

the airline’s alleged willfulness in delaying rehire;

(3) entered a money judgment in favor of Harwood in

the amount of $50,184.75, representing his backpay

with interest, less the amounts that Harwood

received as income from the Air Force for his service

during the period of delay; and (4) denied Harwood’s

motion for an injunction, based on its assessment

that the airline’s infraction was the result of a onetime misunderstanding by the airline and “nothing

suggest[ed] that American [would] make the same

mistake in the future.”

From the district court’s judgment dated

August 21, 2018, Harwood filed this appeal, and

American Airlines filed a cross-appeal.

Harwood contends first that the district court

erred in dismissing his discrimination claim under

38 U.S.C. § 4311. The court did so, as it explained,

on the ground that § 4311 “protects veterans from

discrimination after they have been reemployed” and

that Harwood “failed to plead any facts that

demonstrate that [he] was discriminated against”

after his reemployment. Harwood argues that

§ 4311’s protections are broader than what the court

held, covering also the airline’s conduct during the

reemployment process. As he alleged in his

complaint, the airline “fail[ed] to treat him as if he

had been continuously employed in lieu of his

military service” by not reemploying him on

September 1, 2015. And he asserted that this failure

46a

was motivated by discriminatory animus reflected by

comments made to him earlier in his career.

According to his complaint, in the summer of 1997,

an employee at the airline’s Dallas Flight Office told

Harwood that the airline would not permit him to

take “so much military leave” and asked him to

“decide if [he is] going to play soldier or be an airline

pilot.” In 1998, when Harwood was based in Los

Angeles, he was “criticize[d]” by the airline “for his

military service.” And in that same year, the airline

removed Harwood from its payroll for three weeks

while he performed “alternative weeks of military

service.” That matter, however, was resolved

internally when Harwood raised the issue with the

Chief Pilot at Los Angeles International Airport.

American Airlines argues that the district

court’s ruling correctly followed our decisions in

Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d

299 (4th Cir. 2006), and Butts v. Prince William

County School Board, 844 F.3d 424 (4th Cir. 2016),

which, in its view, limited § 4311’s prohibition of

discrimination to an employer’s conduct after

reemploying a servicemember. The airline also

argues that reading the text of § 4311 to prohibit

discriminatory conduct during the time of

reemployment would render that provision

surplusage, as such conduct is already regulated by

§§ 4312 and 4313. In the alternative, the airline

maintains that Harwood’s complaint failed to

“adequately plead that his military status (as

opposed to his lack of FAA clearance) was a

motivating factor in [its] decision not to reemploy

him as a pilot.”

47a

At the outset, we note that USERRA “was

enacted to protect the rights of veterans and

members of the uniformed services” and therefore

“must be broadly construed in favor of its military

beneficiaries.” Francis, 452 F.3d at 303 (cleaned up).

particular,

4311

broadly

prohibits

discrimination in the hiring, rehiring, and retaining

of servicemembers, providing:

A person who . . . has performed . . .

service in a uniformed service shall not

denied

initial

employment,

reemployment,

retention

employment, promotion, or any benefit

of employment by an employer on the

basis of that . . . service . . . .

38 U.S.C. § 4311(a) (emphasis added). And

subsection (c) explains that “[a]n employer shall be

considered to have engaged in actions prohibited . . .

under subsection (a), if the person’s . . . service . . . in

the uniformed services is a motivating factor in the

employer’s action.” Id. § 4311(c)(1) (emphasis added).

Thus, to succeed on a claim under § 4311(a), a

servicemember must demonstrate (1) that his

employer took an adverse employment action against

him; (2) that he had performed, applied to perform,

or had an obligation to perform as a member in a

uniformed service; and (3) that the employer’s

adverse action was taken “on the basis of” that

service, such that the service was “a motivating

factor” in the action. Id. §§ 4311(a), (c)(1). The

employer can avoid liability under this provision if it

can demonstrate that it would have taken the

adverse employment action regardless of whether

the person had served in the uniformed services. See

48a

id. § 4311(c)(1). The plain text thus reads more

broadly than the interpretation given to it by the

district court. While the district court appropriately

acknowledged

4311’s

protection

against

discriminatory action after the servicemember is

reemployed, the provision is not so limited, as it also

applies explicitly to “initial employment” and

“reemployment.” Id. § 4311(a).

While our decisions in Francis and Butts

addressed post-hiring conduct — see Francis, 452

F.3d at 304 (“Section 4311 prohibits discrimination

with respect to any benefit of employment against

persons who serve in the armed services after they

return from a deployment and are reemployed”

(emphasis added)); Butts, 844 F.3d at 430 (“Section

4311 applies after a veteran is reemployed following

deployment” (emphasis added) (citing Francis, 452

F.3d at 304)) — those cases did not purport to

restrict § 4311’s coverage to post-hiring conduct.

Their discussion of § 4311’s post-hiring protections

served to contrast § 4311 with §§ 4312 and 4313,

which apply only at the time of reemployment, and

thus the cases must be understood as simply

underscoring that § 4311 applies even after

reemployment. But nothing in the language or

reasoning of those two cases undermines the full

scope of § 4311’s text, which provides for the

provision’s application also to the “den[ial] [of] initial

employment [and] reemployment.” Id. § 4311(a).

The airline’s argument that such a broad

reading would render § 4311 as surplus to §§ 4312

and 4313, which also govern conduct during the

rehiring of servicemembers, overlooks the differing

criteria required for a discrimination claim under

49a

§ 4311, on the one hand, and claims under §§ 4312

and 4313, on the other. Crucially, a plaintiff must

prove that discrimination on the basis of service was

a motivating factor in an employment action to

recover under § 4311. By contrast, §§ 4312 and 4313

provide relief regardless of intent, but only if a

servicemember has met other criteria such as, for

example, not having taken leave from the employer

for performance of uniformed service for more than

five years cumulatively. See id. § 4312(a)(2).

Although we conclude that the district court

read § 4311 too restrictively, we nonetheless affirm

its decision to dismiss Harwood’s § 4311 claim

because the complaint’s factual allegations of

discriminatory intent were far too attenuated to

make them relevant to the airline’s conduct in 2015.

To plead animus, Harwood’s complaint recited a few

scattered comments made by airline employees in

Dallas and Los Angeles over 15 years prior to the

allegedly discriminatory action. He does not,

however, allege that those comments were made by

anyone connected with the decisionmaking on his

2015 reemployment. Indeed, the complaint itself

indicates that American Airlines failed to reemploy

Harwood on September 1, 2015, because Harwood

did not then possess a valid first-class medical

certificate — a reason entirely unrelated to his

service in the Air Force Reserve. Although

discriminatory motivation under USERRA can be

inferred by an employer’s expressed hostility

towards servicemembers protected by the Act, the

discriminatory animus must nonetheless be

connected in some way to the adverse employment

action. See 38 U.S.C. § 4311(a) (prohibiting denial of

reemployment “on the basis” of uniformed service).

50a

But Harwood has not pleaded sufficient factual

content to support a “reasonable inference” that his

military service was a motivating factor in any of the

airline’s conduct about which he complains. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

Accordingly, we affirm the district court’s dismissal

of Harwood’s § 4311 claim.

III

American Airlines contends that the district

court erred in finding it liable under §§ 4312 and

4313. The district court concluded that under the

“plain language” of those provisions, American

Airlines was required to reemploy Harwood

promptly after it was shown that he satisfied the

requirements for reemployment described in § 4312,

and failing to do so constituted a violation, even if

the appropriate reemployment position had not yet

been determined. The court acknowledged that the

airline was “entitled to engage in a § 4313 analysis

upon learning that General Harwood [could] not fly

airplanes because he lack[ed] a first-class medical

certificate,” but it held that the airline violated

§ 4312 in delaying his reemployment beyond

September 1, 2015. The airline disagrees with the

court’s statutory interpretation and argues that it

fully complied with the statutory scheme by first

determining that the § 4312 criteria were satisfied

and then proceeding under § 4313 to identify an

appropriate reemployment position. The airline thus

contends that it was under no obligation to formally

rehire Harwood until it had identified a proper

position. And it argues further that, in light of

Harwood’s medical condition, its identification of

51a

such a position on October 22 was sufficiently

prompt under the statute.

Harwood contends, as the district court held,

that USERRA requires an employer to rehire

returning servicemembers as soon as it determines

that the § 4312 criteria are satisfied, and only then

may it determine which particular position meets

§ 4313’s requirements.

Under the statutory scheme, §§ 4312 and 4313

are interconnected, operating in a complementary

manner. Section 4312 provides that a returning

servicemember is “entitled to the reemployment

rights” provided by USERRA if he satisfies three

criteria: (1) that he have given “advance written or

verbal notice” of his uniformed service to his

employer; (2) that the cumulative length of his

absence for service up until the time of

reemployment “does not exceed five years”; and

(3) that he have submitted “an application for

reemployment.” 38 U.S.C. § 4312(a). And § 4313

operates to define the rights of returning

servicemembers “entitled to reemployment under

section 4312.” Id. § 4313(a); see also Butts, 844 F.3d

at 430. Specifically, § 4313 provides that “a person

entitled to reemployment under section 4312 . . .

shall be promptly reemployed in a position of

employment” as determined under that section. 38

U.S.C. § 4313(a) (emphasis added). “Prompt

reemployment” is defined by regulation to mean “as

soon as practicable under the circumstances of each

case.” 20 C.F.R. § 1002.181.

Under § 4313(a)(2), the default employment

position for a returning servicemember is the so-

52a

called “escalator position” — “the position of

employment in which the person would have been

employed if the continuous employment of such

person with the employer had not been interrupted

by . . . service, or a position of like seniority, status

and pay, the duties of which the person is qualified

to perform.” 38 U.S.C. § 4313(a)(2)(A). But if a

returning servicemember has a “disability incurred

in, or aggravated during” his service that prevents

him from qualifying for the escalator position, he

must be reemployed “in any other position which is

equivalent in seniority, status, and pay, the duties of

which the person is qualified to perform or would

become qualified to perform with reasonable efforts

by the employer,” or the “nearest approximation” of

such a position. Id. § 4313(a)(3).

In short, under the statutory scheme created

by §§ 4312 and 4313, eligible returning

servicemembers must be promptly reemployed an in

an appropriate position for which they are qualified.

Of course, in Harwood’s case, it is clear from

the record that he was not qualified at the time his

tour ended to perform the duties of the escalator

position, as without the proper medical clearance, he

was ineligible to serve as a pilot. But Harwood was

eligible for other positions that met the requirements

of § 4313, as the airline itself acknowledged when it

offered him reemployment in just such a position on

October 22. Thus, the issue presented is simply

whether the airline acted sufficiently promptly to

meet its burden under § 4313 to reemploy Harwood

in an appropriate position as soon as was practicable

under the circumstances.

53a

On the record in this case, we conclude that

the district court did not err in ruling that American

Airlines failed to discharge its statutory duty

promptly. The airline determined at least as early as

August 3, 2015 — when it was without knowledge of

Harwood’s medical condition — that Harwood

qualified for reemployment under § 4312. An airline

employee so testified, and her testimony is

consistent with the airline’s contemporaneous

response to Harwood, advising him that he would be

reemployed on September 1, 2015. And, because the

airline was on notice as of August 20 that Harwood

had not obtained the clearance necessary for a pilot

position, it had nearly two weeks to identify under §

4313 an appropriate alternative position for him to

assume on the start date that had previously been

scheduled. Thus, we see no error in the district

court’s

conclusion

that

“promptly”

entailed

reemployment by September 1, as promised and

anticipated by the airline.

American Airlines argues that its October 22

offer to reemploy Harwood in an appropriately senior

non-pilot position was sufficiently prompt in view of

the circumstances, i.e., Harwood’s ineligibility to fly

as of September 1. We cannot agree. As noted, the

airline learned of Harwood’s medical condition on

August 20, and it has provided no reason why it

could not have identified an appropriate position for

Harwood by September 1. Yet it did not offer him

reemployment in an appropriate position until

October 22, 2015, over two months after it learned

that he would likely need to be rehired in a non-pilot

position.

54a

At bottom, we find no error in the district

court’s conclusion that the airline did not reemploy

Harwood promptly in an appropriate position.

Accordingly, we affirm the district court’s order

finding that the airline violated USERRA when it

failed to reemploy Harwood on September 1.

While Harwood succeeded in the district court

on his §§ 4212 and 4213 claims, he nonetheless

argues that the court erred in rejecting his argument

that American Airlines’ conduct in violation of those

provisions was “willful,” as used in § 4323(d)(1)(C),

and therefore that he was also entitled to liquidated

damages in an amount equal to his backpay award.

In support of this contention, he points to various

statements made by American Airlines’ employees to

the effect that the airline would not reemploy him as

a pilot due to his lack of a medical certificate. He

focuses especially on statements like the one that the

airline’s Manager of Flight Administration made —

“Under no circumstances would American Airlines

ever reemploy a pilot without a medical [certificate].”

He argues that communications of this kind

constituted “an obvious attempt to get Harwood to go

away and forget about any reemployment rights.”

The

district

court,

however,

rejected

Harwood’s argument, concluding that on the record

before it, “there [was] simply no evidence that

American or any of its agents acted unreasonably

and in bad faith. Accordingly, liquidated damages

are not applicable to the facts of this case.”

Section 4323(d)(1) authorizes an award of

liquidated damages in an amount equal to the

55a

backpay award if the employer’s violations are found

to be willful. And according to the applicable

regulation, a violation is willful “if the employer

either knew or showed reckless disregard for

whether its conduct was prohibited by the Act.” 20

C.F.R. § 1002.312(c). Thus, for example, if an

employer ignores an employee’s request for

reemployment or fails to attempt to comply with the

law, the employer’s actions might be willful. See

Serricchio v. Wachovia Secs., LLC, 658 F.3d 169, 191

(2d Cir. 2011).

But the evidence in this case fails to support

Harwood’s claim. Indeed, it shows without dispute

that American Airlines immediately agreed to rehire

him when he notified the airline of his intent to

return. Harwood told the airline that his tour of duty

would end on August 31, 2015, and the airline

instructed him to report for service the next day,

September 1, 2015. And when Harwood later advised

the airline that he had a medical condition that

precluded his employment as a pilot without an FAA

waiver, the airline asked Harwood to let it know

about the status of his application for a waiver “as

soon as possible” so that it could schedule the

necessary training. In a follow-up, the airline told

Harwood, “[O]ur first goal is to try to work with you

to see if we can make any reasonable

accommodations that will get you back to your

position as a line pilot. If there’s nothing we can do

to reasonably accommodate you so that you can

return to flying status, then we can explore other

paths.” And on October 22, it offered Harwood an

alternative position that it maintains had the same

seniority, status, and pay as he would have received

as a pilot. Finally, when Harwood later accepted the

56a

offer and also advised the airline of his receipt of an

FAA waiver, the airline hired him as a pilot the very

next day, a position that he continues to hold. This

conduct, which demonstrates that the airline made

efforts to work with Harwood to accommodate his

request for reemployment — even if it operated

under a misunderstanding of the statutory

relationship between § 4312 and § 4313 — does not

manifest a willful violation, as the district court duly

found.

Finally, both parties challenge the relief that

the district court ordered. Harwood contends that

the district court erred in reducing the award by the

income he received for military service during the

relevant period, arguing that the service income was

a “collateral source” that should not have impacted

his backpay award. He also contends that the

district court abused its discretion in refusing to

issue an injunction against American Airlines to

prohibit similar conduct in the future.

American Airlines contends that the period for

which it owes backpay should not have included the

period between September 4 and October 1, during

which the airline was waiting to hear back from

Harwood, as well as the time after October 22, when

the airline offered Harwood a position that he did

not accept until January 25, 2016. The airline also

contends that the district court should not have

awarded backpay beginning on September 1, the

original scheduled start date, as the airline should

have been allowed additional time to rehire Harwood

in an alternative position.

57a

With respect to Harwood’s argument that his

backpay should not have been offset by his Air Force

earnings, the district court concluded that Harwood’s

income during that period was payment for “services

that he would not have been able to complete or that

would have required leave from [the airline] but for

the USERRA violation.” Thus, Harwood suffered no

lost wages or benefits attributable to the airline’s

failure to reemploy him during the time he was on

active duty with the Air Force. See 38 U.S.C.

§ 4323(d)(1)(B) (authorizing a court to “require the

employer to compensate [the plaintiff] for any loss of

wages or benefits suffered by reason of such

employer’s failure to comply with the provisions of

this chapter”). We find no error in this conclusion

reached by the district court.

With respect to the district court’s denial of

Harwood’s request for injunctive relief, we conclude

similarly that the district court did not abuse its

discretion. While the statute directs the district

court to employ all of its equitable powers to

“vindicate fully” the servicemember’s rights, see 38

U.S.C. § 4323(e), Congress nonetheless specified that

the court exercise those powers only as it

“determines it is appropriate,” id., which we take as

a direction for the district court to exercise

discretion. In this instance, the court determined

that equitable relief was not appropriate because, as

it concluded, the airline construed the relationship

between § 4312 and § 4313 in good faith, even if in

error, and therefore there was no ground to suspect

that the airline would repeat that error in the

future. Indeed, since early 2016, Harwood has

continued to work for American Airlines and has

taken additional leave to serve in the Air Force

58a

Reserve,

both

without

incident.

In these

circumstances, we see no reason to conclude that the

district court abused its discretion in determining

that injunctive relief was not necessary to ensure

that Harwood’s rights were fully vindicated.

Finally, with respect to damages, in view of

our conclusions in Part III, above, we agree with the

district court that the backpay period began

September 1, because it was not error to conclude

that promptness in this case required Harwood’s

reemployment by that date. We also reject American

Airlines’ argument that the period from September 4

to October 1 be excluded on the ground that

Harwood failed to engage in the deliberative process.

After receiving Hansen’s letter on September 4, in

which Hansen recited the varying application of

three statutory provisions — §§ 4311, 4312, and

4313 — Harwood reasonably perceived a need to

retain counsel, and that period therefore should not

be charged to him. And because the subsequent

delay during the period from October 1, when

counsel first contacted American Airlines, and

October 22, when American Airlines extended

Harwood an offer, is attributable to the airline, it is

also responsible for backpay for that time. Thus,

Harwood was entitled to damages at least for the

period from September 1 to October 22, when

American Airlines made its offer to Harwood for an

alternative position, which Harwood turned down.

On the other hand, the period from October 22, when

Harwood turned down American Airlines’ offer, until

January 25, when he accepted the offer and was

rehired, should be at Harwood’s expense, unless the

position that American Airlines offered on October

22 was not an equivalent position in terms of

59a

seniority, status, and pay for purposes of

§ 4313(a)(3). On that subject, the district court

declined to make findings as to the appropriateness

of the position offered, and the parties disagree on

whether it was an equivalent.

In short, the district court should recalculate

damages consistent with this opinion, presumptively

imposing backpay damages against American

Airlines for the period from September 1 to October

22 and denying damages for the period from October

22 to January 25, unless the offered position was not

an equivalent under the Act. And any such

calculation should include a setoff for service income

Harwood received.

AFFIRMED IN PART,

VACATED IN PART, AND REMANDED

60a

ENTERED MAY 16, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

Alexandria Division

MAJOR GENERAL

THOMAS P. HARWOOD Ill,

)

) Case No.

) 1:17-cv-0484

Plaintiff,

) Hon. Liam

) O’Grady

)

AMERICAN AIRLINES, INC., )

)

Defendant.

)

ORDER

This matter comes before the Court on Plaintiff’s

Petition for Attorney’s Fees and Costs. Dkt. 70. For

the following reasons the Petition is granted in part

and denied in part. The Court awards $68,648.83 in

attorney’s fees and $4,349.85 in costs for a total

award of $72,998.68.

I. Background

In the underlying case, Plaintiff, Thomas

Harwood. sued Defendant, American Airlines, for

violating the Uniformed Services Employment and

Reemployment Rights Act of 1994. (“USERRA”).

Plaintiff, a Major General in the United States Air

61a

Force Reserve, was employed by Defendant as a

pilot. Plaintiff took military leave from his pilot

duties from June 2013 to August 2015 to serve in an

active duty status with the Air Force.

During his tour of duty, Plaintiff was

diagnosed with atrial fibrillation. As a result of this

diagnosis, Plaintiff was unable to obtain a first class

medical certificate, which is required by the Federal

Aviation Administration for all pilots. For this

reason, Defendant informed Plaintiff that upon his

return from active duty he would not be reemployed

as a pilot, but that he would be reemployed in an

equivalent position consistent with the requirements

of 38 U.S.C. § 4313. Plaintiff argued the first class

medical certificate was not a condition of

reemployment under 38 U.S.C. § 4312 and that he

met all statutory conditions of reemployment. Thus,

Plaintiff alleged, Defendant violated USERRA by not

reemploying him as a pilot promptly following his

active duty military service.

The case turned on the interpretation of these

two provisions of USERRA and was decided on

summary judgment in favor of Plaintiff on the

statutory interpretation claims, but in favor of

Defendant on the liquidated damages claim. Plaintiff

then filed an appeal. Presently before the Court is

Plaintiff’s Petition for $156,131.20 in fees and

$5,362.35 in costs.

II. Legal Standard

USERRA provides that “the court may award

any such person who prevails in such action or

proceeding reasonable attorney fees, expert witness

fees, and other litigation expenses.” 38 U.S.C.

62a

§ 4323(h)(2). Therefore, this Court has discretion to

award attorney’s fees in this case.

When shaping an award of attorney’s fees, the

court “must first determine a lodestar figure by

multiplying the number of reasonable hours

expended times a reasonable rate.” Robinson v.

Equifax Info. Servs., LLC, 560 F.3d 235,243 (4th Cir.

2009). To do this, the court considers the twelve

factors set out in. Johnson v. Georgia Highway

Express, Inc.:

(I) The time and labor expended;

(2) the novelty and difficulty of the

questions raised; (3) the skill required

to properly perform the legal services

rendered; (4) the attorney’s opportunity

costs in pressing the instant litigation;

(5) the customary fee for like work; (6)

the attorney’s expectations at the outset

of the litigation; (7) the time limitations

imposed by the client or circumstances;

(8) the amount in controversy and the

results obtained; (9) the experience,

reputation, and ability of the attorney;

(10) the undesirability of the case

within the legal community in which

the suit arose; (11) the nature and

length of the professional relationship

between attorney and client; and (12)

attorneys’ fees awards in similar cases.

488 F.2d 714, 717-19 (5th Cir. 1974). Although each

factor is persuasive, the court need not consider each

of them individually because they all are “subsumed”

into an analysis of what constitutes a reasonable

63a

rate and number of hours expended. Smith v.

Loudoun Cty. Pub. Sch., 2017 WL 176510 at *2 (E.D.

Va. Jan. 17, 2017). Once the court has determined

the reasonable number of hours and the reasonable

rate, it will “subtract fees for hours spent on

unsuccessful claims unrelated to successful ones”

and “award some percentage of the remaining

amount, depending on the degree of success

enjoyed.” McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir.

2013).

Ill. Lodestar Calculation

A. Reasonable Rate

Defendant only challenges the reasonable

rates for the principals and of counsel attorneys’ in

this matter, which were $563 an hour. Therefore,

this analysis will only focus on the principals’ and of

counsel’s hourly rates.

The reasonable rate for attorney’s fees is

determined based on the “prevailing market rates in

the relevant community factoring in any required

skill or experience.” Burke v. Mattis, 315 F. Supp. 3d

907, 913 (E.D. Va. 2018). This Court follows the

Vienna Metro Matrix as a guide for reasonable rates

in Northern Virginia. Id. Less than a year ago this

Court declined to award a rate of $563 an hour,

despite the fact that the rate fell into the Vienna

Metro Matrix and despite the fact that the case at

issue was complex and went to trial. Id. In making

this determination, the Court noted it did not “recall

ever awarding a lodestar rate of $563, even for more

complex cases.” Id. at 913-14. Instead , the Court

awarded a lodestar rate of$450. Id. at 914.

64a

Plaintiff emphasizes that $563 an hour falls

into the range set by the Vienna Metro Matrix and

points to a recent R&R issued by this Court which

held the same rates requested by the same attorneys

were reasonable. Antekeier v. Laboratory Corp. of

Am., No I: 17-cv-00786-TSE-TCB (E.D. Va. Aug. 29,

2018). However, in Antekeier there was no challenge

to whether $563 an hour was a reasonable rate.

Thus, finding the rate fit within the Vienna Metro

Matrix and that the rate was not challenged, the

Court held it was reasonable. However, as this Court

has previously stated, “[t]he fact that ‘hourly rates

sought ... are at or below the rates quoted in the

Vienna Metro Matrix ... by itself, does not

conclusively establish that they are reasonable.”’

Hair Club for Men, LLC v. Ehson, 2017 U.S. Dist.

LEXIS 51370, *18 (E.D. Va. Apr. 3, 2017) (quoting

Route Triple Seven, L.P. v. Total Hockey, Inc., 127 F.

Supp. 3d 607, 619 (E.D. Va. 2015)).

A reduction in the billing rates for principals

is justified here and supported primarily by two of

the Johnson factors: the novelty and difficulty of the

questions raised and the skill required to properly

perform the legal services rendered. This case was

not as complex as Plaintiff characterizes it and, as

will be discussed in more detail below, there are

many instances in the billing records where

principals billed for work that could have been done

by a law clerk or a paralegal. For these reasons, a

reasonable rate for the principals and of counsel in

this action is $450 an hour.

The rates for law clerks and paralegals were

not challenged, and the Court finds them

appropriate without any adjustment.

65a

B. Reasonable Hours

i. Overstaffing Plus Excessive Hours Spent on

Interoffice Conferences

First, Defendant argues that Plaintiff

overstaffed the case and spent excessive time in

interoffice conferences. The Court disagrees. While

in total ten attorneys and law clerks are listed in the

billing entries, this is because Plaintiff cycled

through law clerks throughout this case. Only rarely

were two law clerks billing at the same time and

when they were, it was for what seemed to be a brief

transition period. The bulk of the billing at any given

time came from one principal and one law clerk. The

other principals were brought in rarely, usually to be

briefed on case updates. This case was not

overstaffed and a reduction in fees for overstaffing is

not appropriate.

Second, Defendant argues Plaintiff spent an

excessive amount of time in interoffice conferences

and there should be a reduction in fees to reflect

this. The Court disagrees. Many of the entries

Defendant identifies as interoffice conferences are

not interoffice conferences at all. For example,

Defendant has highlighted billing entries that

involve circulating calendar events for the motion for

summary judgment moot, downloading and

circulating Plaintiffs opposition brief, and emailing a

draft brief to a supervising partner. While some of

these entries should be deducted because they

encompass mere clerical tasks (discussed in more

detail below), Defendant’s counsel has exaggerated

the time Plaintiffs counsel spent in meetings. To the

contrary, when actual meetings do appear on the

66a

billing entries they are generally brief and the

purpose is clearly described, suggesting that

Plaintiffs counsel used their meeting time

effectively. Thus, a reduction in fees for excessive

interoffice meetings is not warranted.

ii. Noncompensable Clerical Time

‘“[A]n award of attorneys’ fees may not include

‘purely clerical or secretarial tasks.’” Gregory v.

Belfor USA Grp., Inc., 2014 WL 468923, at *6 (E.D.

Va. Feb. 4, 2014) (quoting Lemus v. Burnham

Painting & Drywall Corp., 426 F. App’x 543, 545

(9th Cir. 2011)). This is because purely clerical tasks

are part of a law office’s overhead and are included

in the hourly rate charged. Two Men & A Truck Int’l,

Inc. v. A Mover Inc., 128 F. Supp. 3d 919, 929 (E.D.

Va. 2015). Some examples of clerical tasks are

collating and filing documents with the

court, issuing summonses, scanning

and mailing documents, reviewing files

for information, printing pleadings and

preparing sets of orders, document

organization, creating notebooks or files

and updating attorneys’ calendars,

assembling

binders,

emailing

documents, or logistical telephone calls

67a

with the clerk’s office or the judge’s

chambers.

Id. at 929-30 (citations omitted).

Defendant has compiled examples of billing

entries that describe purely clerical tasks in Dkt. No.

85, Ex. 7. Although not every billing entry

highlighted by Defendant describes a clerical task,

the majority do. Based on the Court’s review of the

billing record it is clear that Plaintiffs billing entries

are replete with clerical tasks and no apparent effort

was made by Plaintiff to remove the clerical tasks

from his fee request, even after Defendant pointed

them out in its opposition to Plaintiffs fee petition.

To account for the widespread billing of clerical tasks

the Court applies a 5% across-the-board reduction to

the total number of hours Plaintiff billed.

iii. Excessive Hours Spent Prior to Filing Suit

Defendant argues that Plaintiff needlessly

churned the bill in this case before ever filing suit

and the pre-filing hours should be reduced

accordingly. A party may recover attorney’s fees for

pre-suit actions if the time spent before the

complaint was filed was “reasonably expended on the

litigation.”” Page v. Va. State Bd. of Elections, 2015

U.S. Dist. LEXIS 180310, at *36 (E.D. Va. Mar. 10,

2015) (quoting Webb v. Bd. of Educ. Of Dyer Cnty.,

Tenn., 471 U.S. 234, 242 (1985)). [I]t is difficult to

treat time spent years before the complaint was filed

as having been ‘expended on the litigation.”’ Webb,

471 U.S. at 242. Legitimate pre-suit actions include

“attorney-client interviews, investigation of the facts

of the case, research on the viability of potential

legal claims, drafting of the complaint and

68a

accompanying documents, and preparation for

dealing with expected preliminary motions and

discovery requests.” Page, 2015 U.S. Dist. LEXIS

180310, at *37 (quoting Webb, 471 U.S. at 250

(Brennan, J., concurring in part and dissenting in

part)). These actions are legitimate because “careful

pre-filing investigation of the facts and law is

required by the ethical rules of profession and the

Federal Rules of Civil Procedure, and the realities of

civil rights litigation.” Id.

Here Defendant emphasizes that Plaintiff’s

billing entries begin over a year and a half before the

Complaint was filed, and the pre-suit work

comprises approximately 20% of the total hours

expended on the litigation. A review of the billing

entries from before the Complaint was filed shows

the majority of entries describe case status meetings,

correspondence with opposing counsel, and multiple

settlement attempts. These are not the sorts of

legitimate pre-suit actions described in the caselaw.

Thus, the Court applies an across-the-board

reduction of 7.5% to Plaintiff’s total hours.

iv. Excessive Hours Spent on Fee Petition

While the Fourth Circuit allows parties to

recover costs related to the preparation of fee

petitions, the amount collected may not be

unreasonable. EEOC v. Service News Co., 898 F.2d

958,966 (4th Cir. 1990); Daly v. Hill, 790 F.2d 1071,

1080 (4th Cir. 1986). Further, work on a fee petition

is “relatively straightforward” and “much of it [can]

be delegated to staff.” Capital Hospice v. Global

Lending, LLC, 2009 U.S. Dist. LEXIS 56673, at *12

(E.D. Va. Jul. I, 2009) (reducing the hours spent

69a

preparing a fee petition in half because 12.7 hours

spent on fee petition was unreasonable).

Plaintiff identified 33.1 hours that were spent

on the fee petition (excluding hours that describe

purely clerical tasks). Further, 22.3 of those hours

were billed by principals. This request is excessive.

Even though this fee petition was for a relatively

long litigation, assembling the fee petition itself, as

this Court has previously noted, is relatively

straightforward. Even if it required more hours than

a typical fee petition it certainly did not require the

work of principals. This was work that could have

been done by a law clerk or paralegal. Instead, twothirds of the hours requested here were worked by

principals.

To compensate for the excessive number of

hours and principal time dedicated to this fee

petition the Court applies an across-the-board

reduction of 4% to Plaintiffs total hours.

v. Inadequate Documentation

Block billing is “grouping, or lumping several

tasks together under a single entry, without

specifying the amount of time spent on a particular

task.” Page, 2015 U.S. Dist. LEXIS 180310, at *33-34

(quoting Guidry v. Clare, 442 F. Supp. 2d 282, 294

(E.D. Va. 2006)). It is appropriate to reduce the total

fee award for block billing because block billing

prevents a court from making “an accurate

determination of the reasonableness of the time

expended in the case.” Id. at *34. This Court has

previously imposed 10% and 20% fee reductions for

block billing. Id. (imposing a 20% reduction for block

billing; citing to two recent cases that imposed 10%

70a

and 20% reductions for block billing).

Billing entries must “describe specifically the

tasks performed.” Id. at *34-35 (quoting Rum Creek

Coal Sales v. Caperton, 31 F. 3d 169, 175 (4th Cir.

1994). This is because vague billing entries present

the same problem as block billed entries – in both

cases the court cannot “weigh the hours claimed and

exclude hours that were not reasonably expended.”

Id. at *35.

Defendant has highlighted 150.3 hours of

block-billed time entries and 113.6 hours of vague

time entries. Dkt. 85, Exs. 9, l 0. It is clear based on

the Court’s review of the billing record that the

billing in this case was replete with block billing and

vague billing entries and warrants a reduction. The

Court applies an across-the-board reduction of 10%

to Plaintiffs total hours.

vi. Travel Time

It is inappropriate to recover full fees for

travel time. Diaz v. Banh Cuon Saigon Rest., Inc.,

2017 U.S . Dist. LEXIS I 87252, *21 (E.D. Va. July

20, 2017). This Court has previously found that a

$100 per hour rate for travel is reasonable. Id. at

*22. If the travel time has been block billed such that

the Court cannot determine how much time was

spent travelling, the Court may reduce the overall

fee award rather than engaging in calculations to

determine travel hours. Id.

71a

Defendant has identified seven line items

where Plaintiff has billed for travel time, mostly to

and from the courthouse in Alexandria to argue

motions. Dkt. 85, Ex. 5. All but one of these billing

entries is block billed, so it is impossible to

determine exactly how much time Plaintiff spent

traveling as opposed to conducting substantive legal

work. For the one line item that describes pure

travel: “Drive to and from courthouse in EDVA; pick

up client and drop him off at DCA,” the Court will

adjust Adam Carter’s hourly rate to $100. To account

for the other 30.3 block billed hours, the Court will

apply an across-the-board reduction of 1.5% to

Plaintiff’s total hours.

C. Lodestar Amount

For the above reasons, the principal and of

counsel billing rates are adjusted to $450. The billing

rates for law clerks and paralegals remain the same.

To account for Adam Carter’s billed travel time, 1.2

of his billed hours will be changed to an hourly rate

of $100. As discussed above, to account for

noncompensable clerical time, excessive hours spent

prior to filing suit, excessive hours spent on the fee

petition, inadequate documentation, and travel time,

Plaintiff’s overall hours are given an across-theboard reduction of 28%. This results in a

72a

lodestar amount of $98,069.76, as can be seen in the

chart below. 1

IV.

Reductions for Lack of Success

After calculating the lodestar amount the

court “then awards some percentage of the

remaining amount, depending on the degree of

success enjoyed by the plaintiff.” Robinson v.

Equifax Info. Servs., LLC, 560 F.3d 235, 244 (4th

Cir. 2009). “That the plaintiff is a ‘prevailing party

. . . may say little about whether the expenditure

of counsel’s time was reasonable in relation to the

success achieved.” Hensley v. Ec:kerhart, 461 U.S.

424 (1983). If, in complex civil litigation, a plaintiff

only prevails on one of several claims, requesting

Taken together, Plaintiffs original fee petition and the

supplemental fee petition submitted with Plaintiffs Reply

request $154,615 in fees. However, the Court has calculated

$156,131.20 in requested fees because Billing Entry 24 of the

supplemental fee petition identifies Nick Woodfield billing 3.8

hours at a law clerk rate. Because it was unclear whether the

error lay in the name or the billing rate the Court elected to

treat it as an error in billing rate.

73a

fees for hours spent on all claims “clearly would

[be] excessive.” See id. The district court has

discretion in making this determination. Id at

437.

Here, Plaintiff was successful in two out of

the three matters before the Court on summary

judgment. However, Plaintiffs discrimination

claim was disposed of in a motion to dismiss,

Plaintiff’s request for a permanent injunction

against Defendant was denied, and of the

$238,582 in damages Plaintiff sought he was only

awarded $50,184.75. A further indicator of the

lack of Plaintiff’s success is the fact that he has

filed an appeal of this Court’s decision.

For these reasons, the Coun will reduce the

lodestar amount by 30%, resulting in a total fee

award of $68,648.83.

V. Costs

Defendant takes issue with three categories of

costs Plaintiff had identified: (1) litigation support

from a vend or called Jury Solutions. LLC. (2) the

expert report of Richard B. Edelman, and (3) legal

research.

Defendant points out there is no indication of

what type of support Jury Solutions, LLC provided,

and from its name presumes it is jury consultation.

Defendant then argues there was no need for

Plaintiff to prepare for jury selection because the

case was resolved well before trial. In his Reply,

Plaintiff did not refute that Jury Solutions, LLC

was used for jury consultation. The Court agrees

with Defendant that there was no need to prepare

74a

for jury selection in this case as it was resolved well

in advance of trial. The $1,012.50 in costs ought for

this service will not be awarded.

The Court finds the remainder of Plaintiff’s

costs are permissible. Thus, the Court awards

$4,349.85 in costs.

VI. Conclusion

For the above reasons, Plaintiff’s Petition for

Award of Attorney’ s Fees and Costs, Dkt. 70. is

GRANTED IN PA RT AND DENIED IN PART.

The Court awards $68,648.83 in attorney fees and

$4,349.85 in cost for a total award of $72,998.68.

It is SO ORDERED.

/s/ Liam O’ Grady

May 16, 2019

Liam O’Grady

Alexandria, Virginia United States District Judge

75a

ENTERED AUGUST 20, 2018

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

)

MAJOR GENERAL

)

THOMAS P. HARWOOD III, )

)

Plaintiff,

)

AMERICAN AIRLINES INC., )

)

Defendant. )

)

Case No. 1:17-cv-0484

Hon. Liam O’Grady

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on

Plaintiffs 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. Dkt. 60. The motion is

fully briefed and the Court heard oral argument

on July 6, 2018. For the reasons that follow and

for good cause shown, the motion is GRANTED

IN PART and DENIED IN PART. The Court

awards Plaintiff Major General Thomas P.

Harwood III $50,184.75 in damages.

76a

I. Background

In a hearing on April 13, 2018, the Court

granted summary judgment in favor of General

Harwood on his two USERRA claims and

granted summary judgment in favor of

American Airlines (American) on the issue of

liquidated

damages.

The

ruling

was

memorialized in a memorandum opinion issued

May 23, 2018 and formalized in a judgment

entered on May 24, 2018. During the April 13

hearing, the Court ordered supplemental

briefing on damages if the parties were unable

to reach a settlement agreement. The

settlement conference occurred on May 29,

2018. After the parties failed to reach an

agreement, Harwood filed the instant motion,

seeking 1) reconsideration of the Court’s summary

judgment decision on liquidated damages;

2) damages for the period of September 1, 2015 to

January 25, 2016 ($98,398 in lost wages and

benefits); 3) damages pertaining to General

Harwood’s 40 I (k) plan ($20,893); 4) injunctive

relief, including the issuance of a compliance

order; and 5) an evidentiary hearing. American

opposes reconsideration of the Court’s grant of

summary judgment on liquidated damages,

calculates General Harwood’s damages to be

$10,227.01, contends that Plaintiff’s arguments on

the 40l(k) plan assert a new cause of action, and

opposes injunctive relief and an evidentiary

hearing as unnecessary.

77a

II. Discussion

A. Reconsideration

General Harwood moves the Court to

reconsider its grant of summary judgment for

American Airlines on the issue of liquidated

damages. Harwood contends that 1) the case the

Court cited for authority in its memorandum

opinion is inapposite to this case; 2) the Court

used the wrong standard; and 3) there is “ample

and overwhelming evidence that [American] knew

what it was doing.”

A motion for reconsideration pursuant to

FED. R. CIV. P. 59(e) may be brought 1) to

accommodate an intervening change in controlling

law; 2) to account for new evidence not available

at trial; or 3) to correct a clear error of law or

prevent manifest injustice. Pac. Ins. Co. v. Am.

Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.

1998). Such a motion is not an appropriate vehicle

for raising new arguments or to simply re-litigate

issues already decided by the court. Id.;

Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th

Cir. 1993).

Here, General Harwood argues that the

Court clearly erred in rendering its decision. The

Court finds his arguments without merit. First,

while he correctly argues that the facts of the case

the Court cited in its memorandum opinion, Davis

v. Crothall Servs. Corp., Inc., 961 F. Supp. 2d 716

(W.D. Pa. 2013), are readily distinguishable from

this case, the case is nonetheless otherwise

instructive. The Court cited Davis because it

contains a lengthy and accurate discussion of the

78a

appropriateness of liquidated damages in

USERRA cases, a standard parroted by General

Harwood

the

instant

motion

for

reconsideration.

Second, General Harwood is incorrect that

the Court applied the wrong standard. As

Harwood notes, for liquidated damages to apply,

the defendant must have acted willfully or

recklessly. The Court’s finding in its May opinion

that there was no evidence to demonstrate bad

faith or unreasonable conduct on American’s part

necessarily precludes the Court from concluding

that American’s conduct was willful or reckless.

Indeed, the Davis court found that good faith

conduct by a defendant precludes the imposition

of liquidated damages under the Thurston

standard Harwood now cites in his motion for

reconsideration.

Third, Harwood’s purported evidence of

willfulness - that American knew about

USERRA’s requirements and nonetheless failed to

promptly reemploy General Harwood- was

considered by the Court and rejected as evidence

of willfulness. General Harwood appears to be

taking

the

position

that

willfulness

demonstrated by proving merely voluntary

conduct not understood to violate the law. It is

not. Accordingly, General Harwood’s motion for

reconsideration is denied.

B. Damages

General Harwood submits that he is

entitled to $98,398 in damages, covering

September 1, 2015 (the date upon which General

79a

Harwood should have been reemployed) to

January 25, 2016 (the date upon which General

Harwood was reemployed). To this $98,398 figure,

Harwood seeks to add $20,893, which he contends

represents underpayment to his 401(k) plan. 1

General Harwood requests prejudgment interest

at 6%.

American Airlines argues that General

Harwood is entitled to damages for the period of

September 15, 2015 2 to October 22, 2015 (the date

General Harwood was offered an alternative

position), but contends that the damages award

should be reduced for periods during that time

when General Harwood returned to active

military service. American’s position on the 40l(k)

damages is that General Harwood is raising a new

USERRA claim not properly before the Court.

American submits that a prejudgment interest

rate of 2.08% properly accounts for inflation and is

the appropriate rate here.

American has submitted a daily measure of

damages based upon flight hour compensation

and the “likely minimum hours Captain Harwood

would have flown.” Dkt. 63, Ex. A. Those figures

are $541.41 per day in 2015 and $571.03 per day

in 2016. Id. General Harwood has extrapolated

General Harwood submits a figure of $41,786, but this

represents a doubling of his damages figure based upon the

requested imposition of liquidated damages, which this Court

has denied.

2 American cites to the Court’s statement during oral argument

that Harwood should have been employed on September I or at

least within 14 days of the date he presented himself for

reemployment.

80a

from actual flight hours and benefits. General

Harwood’s total damages figure of$98,398 works

out to a loss of $665.98 per day in 2015 and

$685.96 per day in 2016. 3 See Dkt. 61, Ex. 1. The

Court finds that General Harwood’s calculations

are the proper measure of damages, since they are

based off of extrapolations of his actual work,

rather than American’s general calculations of

minimum pay for an ordinary pilot.

i. Applicable Date Range

General Harwood’s damages began to

accrue on September l, 2015, the date he and

American had previously agreed he would be

reemployed. While true that USERRA simply

requires “prompt” reemployment and fourteen

days is a reasonable amount of time for a company

to meet its § 4312 obligations, American’s position

would essentially render USERRA’s promptness

requirement replaced by a “within 14 days”

requirement. Prompt reemployment requires a

factual inquiry into a reasonable reemployment

date.

See

C.F.R.

§ 1002.225. Here, Harwood contacted American

months in advance of September 1, 2015 and any

delay in reemployment by American after

September 1 was based on American’s violation of

USERRA. Indeed, the Court found the USERRA

violation occurred on September 1, 2015 when

prompt reemployment pursuant to § 4312 did not

occur. Dkt. 53.

3 Because

Professor Edelman did not show all his work in

arriving at his final damages figure, the Court used the

following equation: 122x +25(x+.03x)=98,398, with x being daily

damages in 2015.

81a

American’s contention that damages should

not be awarded for the period of October 22, 2015

to January 26, 2016 is also based on erroneous

assumptions, specifically that the alternative

position offered to General Harwood on October 22

satisfied the requirements of § 4313. The Court

made no findings on the appropriateness of the

escalator position offered to General Harwood,

instead taking the position, consistent with other

courts, that the § 4312 violation resu1ted in a

§ 4313 violation, because on September 1 , 2015

American neither promptly reemployed Harwood

as required by § 4312 nor took steps to find an

appropriate alternative position for him as

required by § 4313. See Dkt. 53.

Even if a fact-finder had ultimately

determined that the position offered on October 22

was an appropriate escalator position under

§ 4313, Harwood’s litigation posture at that point

was reasonably based on the already-occurred

§ 4312 and § 4313 violations. American should not

be able to save itself from damages after October

22 by a course-reversal that failed to cure the

already-occurred USERRA violations. Cf Hanna v.

American Motors Corp., 724 F.2d 1300, 1309-10

(7th Cir. 1984) (holding that a veteran has no duty

to mitigate damages in a nonconforming position

under the Veterans Reemployment Rights Act).

For these reasons, the Court finds that the

applicable date range for General Harwood’s

damages is September 1, 2015 to January 25,

2016.

ii. Damages Mitigated for Active Duty Status

82a

American contends that, during the period

of September 1, 2015 to January 25, 2016, General

Harwood spent a substantial amount of time on

active duty status with the Air Force for which he

was compensated and during which time he could

not have simultaneously been on paid status with

American, thereby mitigating $50,184.75 in

damages. 4 General Harwood contends that this

approach would effectively let American off the

hook for thousands of dollars they should have

been paying but for their violation of USERRA.

However,

damages

this

context

are

compensatory, not punitive. While General

Harwood asks the Court to explore the nature of

his military work, the Court sees no reason to do

so - General Harwood does not contest that he

earned $50,184.75 for his military service, service

that he would not have been able to complete or

that would have required leave from American but

for

the

USERRA

violations.

Accordingly,

American is entitled to a deduction of $50,184.75

from its damages obligations.

iii. 401(k)

General Harwood’s expert report on

damages states that it did not take into account

losses to his 401(k) for the applicable damages

period. 0kt. 61, Ex. 1. Instead, Harwood submits

his own affidavit containing his own calculation of

damages based on a theory that American

unfairly delays re-institution of a returning

service member’s 401(k) plan. American agrees

4 $3,345.65

for September 20, 2015 to September 26, 2015;

$12,426.70 for October 12, 2015 to November 6, 2015; and

$34,412.40 for October 23, 2015 to January 25, 2015.

83a

that Harwood is entitled to damages for missed

401(k) contributions and asserts that those

contributions, having already been made, are not

relevant to damages here. General Harwood did

not dispute during oral argument that American

has already made catch-up payments on the 40l(k)

plan. Accordingly, the Court finds the 401(k) issue

to be well beyond the scope of this litigation and

declines to consider it in calculating damages.

iv. Prejudgment Interest

The parties agree that prejudgment

interest is applicable to the damages award.

Harwood seeks Virginia’s statutory rate of 6%.

American seeks 2.08%, which reflects the average

inflation rate for the time period. The purpose of

prejudgment interest is to ensure that a dollar at

the time of the harm equals a dollar today.

See Mabymchuk v. Frank, 987 F.2d 1072, 1077

(4th Cir. 1993) (‘“A dollar tomorrow, unless

interest is added, does not equal a dollar today.”).

Accordingly, the Court finds that 2.08% is the

appropriate prejudgment interest rate and

adopts the formula offered by American for

calculating prejudgment interest: F=$98,398

[1+ (.0208/12)]^M, where F equals the future

value of money and M equals the number of

months compounded – here, 30 months. 5 F equals

$103,645.40.

In consideration of the mitigation discussed

supra, the Court awards damages plus

5 While the Court entered summary judgment in May 2018, the

Court calculates prejudgment interest from the date of this

Order.

84a

prejudgment interest in the amount of $53,460.65.

C. Injunctive Relief

General Harwood moves the Court to issue

a “compliance order,” ordering American to comply

with USERRA’ s provisions as they relate to

General Harwood or any other American

employee. General Harwood also seeks a

permanent injunction requiring 1 ) American’s

compliance with USERRA; 2) on-going training for

both inside and outside counsel, human resources

personnel, and other personnel responsible for

administering programs that implicate USERRA;

3) changes to American’s policies; 4) publication of

those policies; and 5) the adoption of internal

control measures.

Equitable relief is not necessary in this

case. This litigation is the result of a

misunderstanding of the interaction between two

USERRA provisions as they relate to a single

employee. Nothing about the case suggests that

American will make this same mistake in the

future with respect to General Harwood or any

other employee, the law having been clarified. As

American points out, broad injunctions requiring

compliance with a statute “impermissibly

subject[ ] a defendant to contempt proceedings for

conduct unlike and unrelated to the violation

which was originally charged.” Dkt. 63, p. 14

(quoting Lowery v. Circuit City Stores, Inc., 158

F.3d 742, 767 (4th Cir. 1998)). Further, the Court

finds General Harwood’s proposed injunctive relief

to be well beyond the actual scope of this

85a

litigation. Accordingly, the motion for various

forms of equitable relief is denied.

D. Evidentiary Hearing

General Harwood has requested an

evidentiary hearing to establish damages,

however the Court finds that an evidentiary

hearing would not have assisted in the above

calculations. Accordingly, the motion for an

evidentiary hearing is denied.

III. Conclusion

For these reasons and for good cause shown,

General Harwood’s motion is GRANTED IN

PART and DENIED IN PART. The Court denies

reconsideration, damages pertaining to an unpled

401(k) issue, equitable relief, and an evidentiary

hearing. General Harwood is entitled to damages

for the period of September 1, 2015 to January 25,

2016, mitigated by his employment with the Air

Force during that period. The Court awards

General Harwood $50,184.75 in damages. The

Clerk of Court is instructed to modify the

judgment entered on May 24, 2018 (Dkt. 55) to

reflect this award.

It is SO ORDERED.

August 20, 2018

Alexandria, Virginia

/s/ Liam O’Grady

Liam O’Grady

United States District Judge

86a

ENTERED MAY 23, 2018

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

)

MAJOR GENERAL

)

THOMAS P. HARWOOD III, )

)

Plaintiff,

)

AMERICAN AIRLINES INC., )

)

Defendant. )

)

Case No. 1:17-cv-0484

Hon. Liam O’Grady

MEMORANDUM OPINION

This matter comes before the Court on crossmotions for summary judgment. Dkt. Nos. 41 and 44.

The motions are fully briefed and the Court heard

oral argument on April 13, 2018. For the following

reasons, the reasons stated from the bench, and for

good cause shown, summary judgment is

GRANTED in part for the Plaintiff as to Counts II

and Ill of the Amended Complaint and DENIED as

to Defendant’s affirmative defense against liquidated

damages that it acted reasonably and in good faith

and that its actions were not willful.

Defendant’s motion for summary judgment is

DENIED in part on Counts II and III of the

Amended Complaint and GRANTED in part on the

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question of liquidated damages.

Background

The facts of this case are undisputed. Plaintiff

Thomas P. Harwood III alleges that Defendant

American

Airlines

(American)

violated

the

Uniformed Services Employment and Reemployment

Act (USERRA) when it refused to reinstate him as a

pilot following active duty military service where

American determined that Plaintiff was ineligible to

fly because he lacked medical clearance required by

the Federal Aviation Administration. Harwood is a

Major General in the United States Air Force

Reserve. From June 2013 to August 31, 2015,

General Harwood took military leave from his pilot

duties at American to serve in an active duty status

with the Air Force. During this tour of duty, on or

about December 1, 2013, General Harwood was

diagnosed with atrial fibrillation.

On June 3, 2015, General Harwood contacted

Jerry Shaw with American to advise American that

General Harwood intended to return to American at

the conclusion of his active duty tour. He requested

to be assigned duties as an airline captain based out

of LaGuardia Airport and assigned domestic routes

flying Boeing 737 aircraft. At the time, General

Harwood lived in Alexandria, Virginia. Mr. Shaw

contacted Ken Blessum with American to determine

if that assignment would be available to General

Harwood and Blessum determined that it would be.

On July 29, 2015, with General Harwood’s

reemployment date approaching, Mr. Shaw advised

General Harwood to contact Sue Kalosa with

American to handle the logistics of his

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reemployment. There is no evidence at this time that

American had any intent but to promptly reemploy

General Harwood in the pilot position he requested.

As American was making arrangements for

General Harwood’s reemployment as a pilot

pursuant to his request, General Harwood, around

late July or early August 2015 had discovered that

he was unable to obtain a first class medical

certificate because of his atrial fibrillation. A first

class medical certificate is required by the Federal

Aviation Administration (FAA) for all pilots. General

Harwood first notified American of the situation on

August 20, 2015. Subsequent to that notification,

Mr. Shaw e-mailed General Harwood to ask for a

time frame for obtaining the certificate and to “‘let

[Shaw] know as soon as possible if the medical is

going to take some time so [American] can avoid

setting up training that [Harwood] will not be able to

attend.”

During a subsequent phone call with Mr.

Shaw on August 26, 2015, General Harwood made

Mr. Shaw aware that General Harwood still wanted

to be reemployed as a pilot, despite the FAA

regulations, but that he wanted to use his sick leave

balance of 854 hours until he could try to obtain his

certificate. American took the position that it could

not return General Harwood to work as a pilot

because he was not eligible to fly.

On August 27, 2015, American conveyed to

General Harwood that he could not be reemployed as

a pilot without a first class medical certificate. On

September 1, 2015, General Harwood e-mailed Scott

Hansen, American’s agent in charge of decisions

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regarding pilots returning from military leave, to

clarify that he was, in fact, reemployed on

September l, 2015. Mr. Hansen replied that day that

General Harwood was cleared to start that day as a

pilot if he had a valid first class medical certificate.

General Harwood replied that he had not obtained

the certificate but argued that he met all the

conditions of 38 U.S.C. § 4312 and that the first class

medical certificate is not a condition precedent to his

reemployment. Mr. Hansen responded on September

4, 2015 that General Harwood would not be

reemployed as a pilot but that American would

reemploy him consistent with 38 U.S.C. § 4313 by

reemploying him in an equivalent position.

General Harwood responded on October 1,

2015, through counsel, requesting that he be

reemployed. He requested reemployment as a pilot

or in the alternative be employed in Operations

Safety and Compliance within the Flight

Department, or be employed in Flight Operations

within the Flight Department, both located in

Dallas, Texas. On October 22, 2015, American

offered Harwood a custom-made position with

American’s Flight Technical Operations Group

within the Flight Department in Texas.

General Harwood accepted that position on

January 25, 2016. Also on January 25, 2016,

Harwood obtained a waiver from the FAA for special

issuance of a first class medical certificate, he

notified American that he had finally obtained that

certificate, and he was promptly reassigned the next

day as a 737 pilot as he had requested in the

summer of 2015.

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In the months between September 1, 2015 and

his official reemployment in 2016, General Harwood

spent from September 14 to 18, September 21 to 26,

October 13 to 30, November 2 to 6, November 17 to

January 7 and January 19 to 22 on active duty

status with the Air Force. General Harwood

continues to be employed by American as a pilot and

has taken and returned from military leave since

2015 without incident.

The parties have cross-moved for summary

judgment on both remaining counts of the complaint.

General Harwood has also moved for summary

judgment on American’s affirmative defense that it

acted reasonably and in good faith and that its

actions were not willful.

II.

Legal Standard

Summary judgment will be granted where,

viewing the facts in a light most favorable to the

non-moving party, there remains no genuine issue of

material fact. FED. R. CIV. P. 56(c); Marlow v.

Chesterfield Cty. Sch. Bd. 749 F. Supp. 2d 417, 426

(E.D. Va. 2010). A party opposing a motion for

summary judgment must respond with specific facts,

supported by proper documentary evidence, showing

that a genuine dispute of material fact exists and

that summary judgment should not be granted in

favor of the moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). Conclusory

assertions of state of mind or motivation are

insufficient. Goldberg v. B. Green & Co., 836 F.2d

845, 848 (4th Cir. 1988). As the Supreme Court has

held, “the mere existence of some alleged factual

dispute between the parties will not defeat an

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otherwise properly supported motion for summary

judgment; the requirement is that there be no

genuine issue of material fact.” Bouchat v. Baltimore

Ravens Football Club, Inc., 346 F.3d 514, 519 (4th

Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,

447 U.S. 242, 247-248 (1986)) (emphasis in original).

III. Discussion

Section 4312

In support of his motion for summary

judgment on Count II of the amended complaint,

alleging a violation of 38 U.S.C. § 4312, General

Harwood contends that, as a matter of law,

American was required to conduct an analysis solely

under § 4312 to determine his eligibility for

reemployment under USERRA. 38 U.S.C. § 4312

mandates that an employee returning from military

service will be reemployed if 1) the employee or an

appropriate military officer gave the employer

advance notice of the service (with exceptions);

2) the cumulative length of non- exempt periods of

military service during the employee’s employment

relationship with the employer does not exceed five

years; 3) after completing the service, the employee

timely returned to the employer or applied for

reemployment; and 4) the employee was separated

from the service without one of the eight

disqualifying discharges. General Harwood contends

that by adding the requirement that he be qualified

for the position he sought to be reemployed into

before American reemployed him, American violated

the

plain

terms

U.S.C.

§ 4312.

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American concedes that General Harwood met

all the requirements of § 4312 prior to September 1,

2015. Dkt. 47, p. 4. Nevertheless, American asserts

that it took reasonable steps to reemploy General

Harwood pursuant to § 4312. When American

discovered, prior to reemployment, that General

Harwood was not eligible to be a pilot because of his

inability to obtain a first class medical certificate,

American then took steps pursuant to § 4313 to find

an equivalent position, asserting “[a]n employer that

knows an individual cannot perform the duties of the

“escalator” position, in this case a pilot, is not

required to ignore that knowledge when processing

reemployment.” Id. at p. 5. American contends that,

upon learning of General Harwood’s condition,

§ 4312 and § 4313 together permit American to not

reemploy General Harwood until the full § 4313

analysis is complete and a suitable alternative

position identified.

Id.

In support of this statutory reading, American

relies on language in the statute, regulations arising

from USERRA, and case law. First, American

contends that the plain language of the statutes

supports its position. Id. Second, American contends

that 20 C.F.R. § l002.l91, .192, and .226 support its

position that an employer must evaluate not just

reemployment

eligibility

but

reemployment

eligibility for a specific position prior to re-hiring a

USERRA-covered employee. Id., p. 7-8. Third,

American cites to Francis v. Boaz, Allen & Hamilton,

Inc., 452 F.3d 299 (4th Cir. 2006) and Butts v. Prince

William Cty. Sch. Bd, 844 F.3d 424 (4th Cir. 2016)

for the proposition that both § 4312 and § 4313

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govern at the time of re-hire. Id., p. 8-9.

The Court finds American’s arguments

unavailing. In advancing its argument, American

concedes, as it must, that it failed to abide by

§ 4312’s explicit requirement that an employee who

meets § 4312’s statutory requirements be

reemployed. Plainly, then, American concedes that it

violated § 4312 by failing to promptly re-employ

General Harwood on September 1, 2015. American

seems to want to read § 4312 and § 4313 together as

a single statute; they are not. While American notes

correctly that USERRA should be read holistically,

courts must also construe USERRA’s protections in

favor of returning service members. See Francis, 452

F.3d at 303; Hill v. Michelin N. Am., Inc., 252 F.3d

307, 312-13 (4th Cir. 2001). Importantly, the purpose

of a holistic reading is to give full effect to the

protections afforded by the statutory scheme.

Francis, 452 F.3d at 303 (“USERRA provides a

multi-tiered and “comprehensive remedial scheme to

ensure the employment and reemployment rights of

those called upon to serve in the armed forces of the

United States.”) (quoting Morris-Hayes v. Bd. of

Educ., 423 F.3d 153, 160 (2d Cir. 2005)).

Under a holistic reading that broadly

construes USERRA’s protections, Section 4313 does

not add a complex fifth requirement to § 4312’s list,

and qualification issues addressed by § 4313 never

appear in § 4312(d)(1)’s exclusions. See § 4312(d)(1)

(allowing an employer to not reemploy a USERRAcovered person where reemployment would be

impossible or unreasonable). There is no doubt that

American is entitled to engage in a § 4313 analysis

upon learning that General Harwood cannot fly

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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 a § 4313.

The various sections of the Code of Federal

Regulations and the case law cited to by American

are consistent with this reading. For instance, in

Butts, the Fourth Circuit interpreted § 4312 and

§ 4313 to be a two-step process: “[i]f a veteran

satisfied the [§ 4312] criteria, then Section 4313 sets

forth the rights under Section 4312 - namely, the

specific position to which veterans are entitled upon

their return.” 844 F.3d at 430. In Francis, Judge

Hilton clarified that §§ 4312 and 4313 operate at the

time of reemployment, while §§ 4311 and 4316

protect employees after rehire. 452 F.3d at 304.

While they may operate together at the time of

reemployment, § 4313 cannot be fairly read to wholly

excuse an employer of its express obligation to

reemploy under § 4312.

While 20 C.F.R. § 1002.198 specifies that

“[t]he employer is not required to reemploy the

employee on his or her return from service if he or

she cannot, after reasonable efforts by the employer,

qualify for the appropriate reemployment position,”

the regulation also requires the employer to make

“reasonable efforts to help the employee become

qualified to perform the duties of this position.” The

parties debate whether American could have taken

steps to help General Harwood become qualified for

his escalator position. The Court need not make a

finding on that question. The regulation can only be

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read to permit an employer to not reemploy a

returning employee into a position for which the

employee is not qualified - it cannot be read as an

escape hatch from § 4312’s explicit reemployment

requirement.

As a factual matter, American contends that

the delay between September 1, 2015, when

Harwood presented himself for reemployment, and

the official offer of an alternative position in late

October is attributable to General Harwood’s

decision to not engage with American in the

§ 4313 process. Yet the record is clear that General

Harwood, after not being promptly reemployed in

violation of § 4312, shifted to a litigation posture.

This decision does not insulate American from

§ 4312 liability – the § 4312 violation occurred at the

time General Harwood was not reemployed on

September 1, since any delay was the result of

American’s impermissible decision to add return-towork requirements and was therefore unreasonable.

By reading into § 4312 a requirement that

General Harwood qualify for the specific position of

reemployment prior to that reemployment, American

unlawfully imposed a prerequisite to General

Harwood’s reemployment. See Pelly v. Metro. Gov’t of

Nashville- Davidson Cty., 538 F.3d 431, 441-42 (6th

Cir. 2008); Brown v. Prairie Farms Dairy, Inc., 872

F. Supp. 2d 637, 643 (6th Cir. 2012). American failed

to re-employ General Harwood on September 1 in

violation of § 4312. Accordingly, General Harwood is

entitled to summary judgment on Count II of the

Amended Complaint.

Section 4313

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Because American plainly had an obligation

to reemploy General Harwood under § 4312 and it

failed to so reemploy him into any position,

American also violated § 4313. See Brown v. Prairie

Farms Dairy, Inc., 872 F. Supp. 2d 637, 645 (M.D.

Tenn. 2012). As noted supra, American’s contention

that General Harwood failed to engage in an

interactive § 4313 process is unavailing where

General Harwood necessarily sought out legal

counsel in the face of what was, as of September 1, a

USERRA violation.

Liquidated Damages

While clear that American violated both

§ 4312 and § 4313 in its action toward General

Harwood, there is simply no evidence that American

or any of its agents acted unreasonably and in bad

faith. Accordingly, liquidated damaged are not

applicable to the facts of this case. See Davis v.

Crothall Servs. Grp., Inc., 961 F. Supp. 2d 716, 735

(W.D. Pa. 2013).

IV. Conclusion

For these reasons, the reasons stated from the

bench during the hearing, and for good cause shown,

Plaintiff’s motion summary judgment is GRANTED

in part for the Plaintiff as to Counts II and III of the

Amended Complaint and DENIED as to Defendant’s

affirmative defense to liquidated damages that it

acted reasonably and in good faith and that its

actions were not willful. Defendant’s motion for

summary judgment is DENIED in part on Counts

II and III of the Amended Complaint and

GRANTED in part on its affirmative defense to

liquidated damages that it acted reasonably and in

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good faith and that its actions were not willful. A

separate Order will issue.

It is SO ORDERED.

May 23, 2018

Alexandria, Virginia

/s/ Liam O’Grady

Liam O’Grady

United States District Judge

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ENTERED AUGUST 9, 2017

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

MAJOR GENERAL

THOMAS P. HARWOOD III,

Plaintiff,

AMERICAN AIRLINES INC.,

Defendant.

)

Case No.

1:17-cv-00484GBL-JFA

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on

Defendant American Airlines Inc. (“AA”)’s Motion to

Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). (Dkt. No. 9.) This case concerns claims

brought by Plaintiff Major General Thomas P.

Harwood III pursuant to the Uniformed Services

Employment and Reemployment Rights Act

(“USERRA”), 38 U.S.C. § 4301, et seq. Plaintiff

asserts claims for discrimination and failure to

reemploy against AA, who, prior to Plaintiff’s June

2013 to August 31, 2015 military leave of absence,

employed Plaintiff as an airline pilot. (Dkt. No. 1,

“Compl.”) Plaintiff filed a Complaint against AA

alleging violation of USERRA on the following three

counts: Discrimination, in violation of 38 U.S.C.

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§ 4311 (Count One); (2) Failure to Reemploy, in

violation of 38 U.S.C. § 4312 (Count Two); and

(3) Failure to Reemploy, in violation of 38 U.S.C.

§ 4313 (Count Three). (Compl. ¶¶ 65-93.)

There are three issues before the Court. The

first issue before the Court is whether Plaintiff

states a plausible claim for relief under 38 U.S.C.

§ 4311, where Plaintiff contends that AA

discriminated against him on the basis of his

fulfillment of military service with the United States

Air Force, when AA did not reemploy him from

September 1, 2015 through January 26, 2016.

(Comp. ¶ 71.) The second issue before the Court is

whether Plaintiff states a plausible claim for relief

under 38 U.S.C. § 4312 where Plaintiff maintains

that AA failed to reemploy him despite his

compliance with § 4312 requirements for

reemployment. (Compl. ¶¶ 77-82.) The third issue

before the Court is whether Plaintiff states a

plausible claim for relief under 38 U.S.C. § 4313

where Plaintiff claims that AA failed to promptly

reemploy Plaintiff in accordance with § 4313.

(Compl. ¶¶ 88-92.)

With respect to the first issue, the Court holds

that Plaintiff has failed to state a plausible claim for

relief under § 4311 because § 4311 protects veterans

from discrimination after they have been reemployed

following deployment, and Plaintiff has failed to

plead any facts that demonstrate that Plaintiff was

discriminated against subsequent to his January 26,

2016 reemployment. In regard to the second issue,

the Court holds that Plaintiff states a plausible

claim for relief because Plaintiff pleaded sufficient

facts to support his claim that he complied with §

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4312 requirements for reemployment. With respect

to the third issue, the Court holds that Plaintiff

stated a plausible claim for relief under § 4313,

because Plaintiff pleaded sufficient facts to support

his claim that AA failed to promptly reemploy him

within two weeks of his request for reemployment.

Accordingly, the Court GRANTS AA’ s Motion to

Dismiss with respect to Count One, and DENIES

AA’s Motion to Dismiss with respect to Count Two

and Count Three.

I. BACKGROUND

A. Factual Background

Plaintiff is a United States Air Force general

who has been employed with AA since 1992. (Compl.

¶¶ 13, 17.) From 1991 to 2015, Plaintiff served in

various capacities in the Air Force, including:

combat deployments in Bosnia, Iraq, and

Afghanistan; serving as a mobilization assistant in

Air Education and Training Command, Pacific Air

Force, and Headquarters U.S. Air Force; working in

the capacity of Air Component Commander in

multiple Joint Chief of Staff-level exercises and two

Presidential visits; experience as Chief of Staff for

Air Forces Pacific during Operations Tomodachi and

Pacific Passage; and serving as Chief of the United

States Military Training Mission to the Kingdom of

Saudi Arabia. (Compl. ¶¶ 14-15.)

Plaintiff began employment with AA on

November 24, 1992. (Compl. ¶ 17.) Around October

1993, Plaintiff was furloughed by AA, but was

subsequently reemployed by AA in August of 1996

and began training to become a B-727 Flight

Engineer, where he flew out of Dallas/ Fort Worth

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International Airport in Texas. (Compl. ¶ 20.)

Around the summer of 1997, Ruben Garza, an AA

Dallas Flight Officer 1, told Plaintiff that AA would

not allow Plaintiff to take “so much military leave,”

and that Plaintiff would “have to decide if [he is]

going to play soldier or be an airline pilot.” (Compl. ¶

21.) Garza did not provide Plaintiff with a written

policy to support his statements. (Compl. ¶ 21.)

Around the year 2000, Plaintiff was promoted

to become a B-757-767 First Officer and received an

Airline Transport Pilot Certificate. (Compl. ¶ 25.)

From 2000 to 2011 Plaintiff flew domestic and

international flights for AA from Los Angeles

International

Airport,

and

also

completed

assignments for the United States Air Force. (Compl.

¶¶ 26-27.) Around 2011, Plaintiff was transferred by

AA from Los Angeles International Airport to John

F. Kennedy International Airport in New York,

where Plaintiff continued to fly international and

domestic flights. (Compl. ¶ C.)2

Around June of 2013, Plaintiff commenced a

period of military leave of absence from AA to serve

as Chief of the United States Military Training

Mission in Riyadh, Saudi Arabia. (Compl. ¶¶ 28-29.)

In December 2013, Plaintiff was diagnosed with

atrial fibrillation. (Compl. ¶ 30.) Subsequently, in

December 2013 and August 2014, Plaintiff

underwent two procedures to rectify the condition,

1 Plaintiff’s

Complaint names Ruben Garza as an “AA Dallas

Flight Office.” (Dkt. No. 1 at 4 ¶21.) The Court infers that

Plaintiff intended to describe Garza as an American Airlines

Dallas Flight Officer.

2 Paragraph C is on page 5 of the Plaintiff’s complaint.

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but both procedures were unsuccessful. (Compl. ¶

30.)

Around June 3, 2015, Plaintiff emailed AA’s

New York Flight Office to ask for a new bid status as

a 737 domestic captain in New York, and also to

notify the office that he expected to return to New

York on September 20, 2015.

(Compl. ¶ 31.)

However, on about July 13, 2015, Plaintiff received

Separation Orders from the United States Air Force

with an effective date of August 31, 2015. (Compl. ¶

32.) Ten days later, on July 23, 2015, Plaintiff

emailed AA to notify AA that Plaintiffs then period

of service with the Air Force would be terminated on

August 31, 2015. (Compl. ¶ 33.) Two days later, on

July 25, 2015, Plaintiff emailed a copy of his

Separation Orders to AA’s New York Flight Office.

(Compl. ¶ 34.)

On about July 28, 2015, Ken Blessum, an

American Airlines Senior Analyst of Crew Planning

and Analysis, emailed Plaintiff instructing Plaintiff

to contact Sue Kalosa, AA’s Manager of Flight

Administration. (Compl. ¶ 35.) As such, Plaintiff

emailed Kalosa on about July 29, 2015, to again

request his bid status as a 737 domestic captain in

New York. (Compl. ¶ 36.) Kalosa responded on about

August 3, 2015 confirming Plaintiffs return to

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LaGuardia Airport 3 in New York as a 737 captain for

domestic flights. (Compl. ¶ 37.) Kalosa also told

Plaintiff that the Training Department would notify

Plaintiff of a start date for training, and that

Plaintiff would need a First Class Medical

Certificate to begin his role as domestic captain even

though Plaintiff had only needed a Second Class

Medical Certificate in his prior position. (Compl. ¶

37.)

On August 5, 2015, the United States Air

Force asked Plaintiff to attend a Joint Flag Officer

Warfighting Course from September 13, 2015 to

September 18, 2015 so that Plaintiff could qualify as

a Joint Force Commander. (Compl. ¶ 39.) On August

7, 2015, Plaintiff notified AA of the required course,

and asked AA’s New York Flight Office to modify

Plaintiffs schedule to allow him to attend the class.

(Compl. ¶ 40.) Around August 10, 2015, Plaintiff and

Lorrain Sutera of AA’s New York Flight

Administration discussed Plaintiff’s reemployment

with AA and Plaintiffs upcoming military leave of

absence from September 15 - 18, 2015. (Compl. ¶ 7.)

Sutera informed Plaintiff that AA would “bring

[Plaintiff] back on payroll September 1st.” Id.

Around August 20, 2015, Plaintiff was assigned a

training schedule by AA that did not include a period

3 Plaintiff’s

Complaint indicates that prior to his period of

service in Saudi Arabia, which began in June of 2013, Plaintiff

was employed by AA as a domestic Captain at John F. Kennedy

International Airport in New York. (Compl. ¶¶ 28, C.) Though

Plaintiff maintains that he requested to “return to Laguardia

[sic.] Airport,” (Compl. ¶ 37) (emphasis added) after his period

of service in Saudi Arabia, LaGuardia Airport is an entirely

different airport than John F. Kennedy International Airport,

of which Plaintiff pleaded to have originally worked.

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of military leave of absence from September 13 - 18,

2015. (Compl. ¶ 42.)

Also, on August 20, 2015, Plaintiff emailed

Sue Kalosa to notify her that he was unable to

secure the required First Class Medical Certificate

for the domestic captain position at LaGuardia

Airport. (Compl. ¶ 43.) Around late August of 2015,

the Aviation Medical Examiner’s Office informed

Plaintiff that he would need a waiver from the

Federal Aviation Administration (“FAA”) in order to

be able fly. (Compl. ¶¶ 44-45.)

On August 26, 2015, Jerry Shaw of the AA’s

New York Flight Administration, informed Plaintiff

that AA could not reemploy Plaintiff without a First

Class Medical Certificate. (Compl. ¶ 46.) In response,

Plaintiff reminded Shaw of Plaintiffs rights under

the USSERA, and asked Shaw for help with his

medical condition after he was reemployed with AA.

Id. On August 27, 2015, Kalosa contacted Plaintiff

again to tell Plaintiff that AA required pilot service

members to have a valid First Class Medical

Certificate. (Compl. ¶ 47.) On August 27, 2015,

Kalosa also told Plaintiff that AA would keep

Plaintiff on military leave of absence until Plaintiff

received a waiver of the First Class Medical

Certificate from the FAA. Id.

Around September 1, 2015, Plaintiff contacted

Scott Hansen, AA’s Director of Flight Administration

to ask Hansen whether Plaintiff was eligible for

reemployment with AA. (Compl. ¶ 49.) Hansen

responded by informing Plaintiff that Plaintiff would

be “returned to active employment based upon

[Plaintiff’s] notification to the company and

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presuming [Plaintiff met] USERRA guidelines and

the company policy for re-employment [sic.]. So long

as [Plaintiff had] a current and valid medical, and

[was] able for training, [Plaintiff was] good to go.”

(Compl. ¶ 49.) When Plaintiff told Hansen that

Plaintiff believed AA’s policy of requiring pilots to

have a First Class Medical Certificate was a

violation of 38 U.S.C. § 4312, Hansen confirmed that

AA would extend Plaintiff’s military leave of absence

until Plaintiff received a FAA waiver. (Compl. ¶ 51.)

On October 22, 2015, Conrad S. Kee, a

principal with Jackson Lewis P.C., which is counsel

for AA, emailed Plaintiff’s counsel to confirm with

him a prior conversation Kee had with Plaintiff’s

counsel regarding Plaintiff. (Dkt. 9-1.) Kee

reaffirmed that Plaintiff was unqualified to return to

his pilot position “because he [was] unable to qualify

for a First Class Medical certificate [sic.].” (Dkt. No.

9-1.) Kee’s email to Plaintiff’s counsel went on to say

the following:

[AA] is willing to accommodate

[Plaintiff’s] medical

condition by

extending his military leave to permit

him time to seek a waiver from the FAA

so that he can qualify for a First Class

Medical certificate [sic.]. [AA] will also

offer reasonable assistance to [Plaintiff]

in his waiver process, although the

ultimate determination is up to the

FAA, rather than [AA]. Alternatively, if

[Plaintiff] does not wish to extend his

military leave, [AA] will reemploy him

in the Flight Technical Operations

Group at the Flight Academy in DFW,

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in a position appropriate for his status.

In that position, [Plaintiff] will be

compensated at the same rate he would

receive if actively flying. If [Plaintiff]

elects employment in the Flight

Technical Operations Group, he can

continue to seek a waiver from the FAA

on his First Class Medical. To be clear,

the option whether to remain on

military leave pending an [sic.] FAA

decision on his First Class Medical

certificate or to be reemployed in the

Flight Technical Operations Group at

the Flight Academy is [Plaintiff’s]

choice and [AA] will fully support

whatever decision he makes.

(Dkt. No. 9-1.)

Subsequently, on November 9, 2015, Plaintiff

notified AA that he planned to commence active duty

orders with the Air Force on November 16, 2015, and

on November 16, 2015, Plaintiff began those active

duty orders. (Compl. ¶ 54.) Additionally, Plaintiff

continued to take actions toward obtaining a waiver

of his First Class Medical Certificate from the FAA.

(Compl. ¶¶ 55-56.) Specifically, around early

November 2015, Plaintiff took a nuclear stress test,

and on December 21, 2015 Plaintiff took an

echocardiogram test in an effort to obtain the waiver.

Id.

On December 21, 2015, Plaintiff also notified

AA that he would again request reemployment on

January 8, 2016 when he completed this term of

service with the Air Force. (Compl. ¶ 57.) On

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January 21, 2016, AA extended Plaintiff another

offer to work at the Flight Technical Operations

Group at the AA’s Flight Academy in Dallas, Texas,

which is the same position they offered on October

22, 2015. (Compl. ¶ 59; Dkt. No. 9-1.) Plaintiff

accepted AA’s offer of reemployment at the Flight

Academy in Dallas. (Compl. ¶ 59.)

On January 25, 2016, Plaintiff was issued an

Authorization for Special Issuance of a Medical

Certificate pursuant to 14 C.F.R. § 67.401. (Compl. ¶

160.) The next day, on January 26, 2016, Plaintiff

was notified by AA that he could “return to the

line.” 4 Plaintiff accepted AA’s offer and on February

18, 2016, Plaintiff began upgrade training with AA.

(Compl. ¶¶ 62- 63.)

B. Procedural Background

On April 24, 2017, Plaintiff filed a complaint

against AA alleging the following violations of

USERRA: (1) Discrimination, in violation of 38

U.S.C. § 4311 (Count One); (2) Failure to Reemploy,

in violation of 38 U.S.C. § 4312 (Count Two); and

(3) Failure to Reemploy, in violation of 38 U.S.C.

§ 4313 (Count Three). (Compl. ¶¶ 65-93.)

Subsequently, on June 27, 2017, AA filed this Motion

to Dismiss on all three counts arguing that Plaintiff

did not adequately state a claim for relief pursuant

to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No.

9 at 1 and 2.) This matter has been fully briefed, and

is now ripe for disposition.

4 It is the Court’s understanding the phrase ‘‘return to the line”

denotes that Plaintiff could be reemployed with AA as a 737

domestic captain at LaGuardia Airport in New York.

108a

II. DISCUSSION

A. Standard of Review

i. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6)

enables a defendant to move for dismissal by

challenging the sufficiency of the plaintiff’s

complaint. Fed. R. Civ. P. 12(b)(6). A 12(b)(6) motion

should be granted where the plaintiff has failed to

“state a plausible claim for relief’ under Rule 8(a).

Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.

2012) (internal quotation marks omitted) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). To

survive a Rule 12(b)(6) motion, a claim must be

facially plausible, meaning the complaint contains

sufficient factual allegations, which if taken as true,

“raise a right to relief above the speculative level”

and “nudg[e] [the] claims across the line from

conceivable to plausible,” allowing ‘‘the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” Vitol, S.A. v. Primerose

Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007)); Iqbal, 556 U.S. at 678. The

requirement for plausibility does not mandate a

showing of probability but merely that there is more

than a possibility of the defendant’s unlawful acts.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (quoting Iqbal, 556 U.S. at 678). As a result, a

complaint must contain more than “naked

assertions” and “unadorned conclusory allegations”

and requires some “factual enhancement” in order to

be sufficient. Id. (citing Iqbal, 556 U.S. at 678;

Twombly, 550 U.S. at 557).

109a

Thus, in reviewing a 12(b)(6) motion to

dismiss, a court must separate factual allegations

from legal conclusions. Burnette v. Fahey, 698 F.3d

171, 180 (4th Cir. 2012). Further, a court may

“consider documents incorporated into the complaint

by reference, as well as those attached to the motion

to dismiss, so long as they are integral to the

complaint and authentic.” United States ex rel. Oberg

v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131,

136 (4th Cir. 2014) (citations and internal quotation

marks omitted).

ii. USERRA

USERRA “was enacted to protect the rights of

veterans and members of the uniformed services,”

and thus the statute should be construed liberally

“in favor of its military beneficiaries.” Francis v.

Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th

Cir. 2006). Sections 4311, 4312, 4313, and 4316

provide the framework for USERRA. Butts v. Prince

William Cty. Sch. Bd, 844 F.3d 424, 430 (4th Cir.

2016).

Section 4311 precludes employers from

discriminating against employees who are service

members. Section 4311 is applicable to veterans

subsequent to their “reemployment following

deployment.” Butts, 844 F.3d at 430; Francis, 452

F.3d at 304. Sections 4312 and 4313 apply to

veterans who seek are looking to be reemployed.

Butts, 844 F.3d at 430. Under 38 U.S.C. § 4312, “any

person whose absence from a position of employment

is necessitated by reason of service in the uniformed

services shall be entitled to the reemployment rights

and benefits and other employment benefits of

110a

[USERRA] if,” the following three requirements are

fulfilled: “(l) the employee gives notice to his

employer when leaving; (2) the absence is for less

than five years as defined by the USERRA; and (3)

the employee timely applies for reemployment upon

his return.” Sulton v. City of Chesapeake, 713 F.

Supp. 2d 547, 551 (E.D. Va. 2010); 38 U.S.C. §

4312(a).

Should the employee satisfy these conditions

of eligibility, the employer’s actions must comport

with § 4313(a)(l)-(4), which set forth the position the

service member is entitled to after completion of

their period of service. 38 U.S.C. § 4313(a)(l)-(4); see

also Butts, 844 F.3d at 430.

B. Analysis

The Court GRANTS AA’s Motion to Dismiss

Count One, and DENIES AA’s Motion to Dismiss

with respect to Counts Two and Three. The Court

GRANTS AA’s Motion to Dismiss Count One

alleging that AA discriminated against Plaintiff in

violation of 38 U.S.C. § 4311 because § 4311 protects

veterans from discrimination after they have been

reemployed following deployment, and Plaintiff has

failed to plead any facts that demonstrate that

Plaintiff was discriminated against subsequent to

his January 26, 2016 reemployment. The Court

DENIES AA’s Motion to Dismiss Counts Two and

Three of Plaintiff’s complaint because Plaintiff

adequately stated plausible claims for relief.

Plaintiff pleaded that AA violated 38 U.S.C. §§ 4312

and 4313 when despite Plaintiff’s compliance with

the reemployment requirements of 38 U.S.C. § 4312,

AA failed to promptly reemploy Plaintiff in an

111a

appropriate position in accordance with § 4313,

following Plaintiff’s period of active duty with the

United States Air Force ending on August 31, 2015.

1. Count One

The Court GRANTS AA’s Motion to Dismiss

Count One alleging that A discriminated against

Plaintiff in violation of 38 U.S.C. § 4311 because

§ 4311 protects veterans from discrimination after

they have been reemployed following deployment,

and Plaintiff has failed to plead any facts that

demonstrate that Plaintiff was discriminated against

subsequent to his January 26, 2016 reemployment.

Plaintiff’s first count specifically alleges that AA

violated 38 U.S.C. § 4311 when it “denied [Plaintiff]

a benefit of his own employment when [AA] failed to

reemploy [Plaintiff] on or around September 1, 2015,

through January 26, 2016, on the basis of

[Plaintiff’s] performance of service with the United

States Air Force ending on or around August 31,

2015 ....” (Compl. ¶ 71.) The Court holds that

Plaintiff’s reliance on § 4311 is misplaced.

Although 38 U.S.C. § 4311 protects veterans

against discrimination, the Fourth Circuit has held

that § 4311 protects veterans against discrimination

only after the veteran has been reemployed following

the veteran’s completion of a term of military

service. See Butts, 844 F.3d at 430 (“[s]ection 4311

applies after a veteran is reemployed following

deployment.”); Francis, 452 F.3d at 304 (“§ 4311

operates to prevent employers from treating those

employees differently after they are rehired.”)

(emphasis added). Plaintiff does not contend that

Plaintiff was further discriminated against again

112a

after he was reemployed by AA on January 26, 2016.

(Dkt. No. 1.) Because Plaintiff has not alleged that

he was discriminated against by AA after being

reemployed by AA after January 26, 2016, Plaintiff

has failed to state a plausible claim for relief under

Federal Rule of Civil Procedure 8(a) with respect to

Count One. Accordingly, the Court GRANTS AA’s

motion to dismiss Count One because Plaintiff has

not pleaded any facts to demonstrate he was

discriminated against subsequent to reemployment

with AA.

2. Counts Two and Three

The Court DENIES AA’s Motion to Dismiss

Counts Two and Three of Plaintiff’s complaint

because Plaintiff adequately stated plausible claims

for relief. Plaintiff pleaded that AA violated 38

U.S.C. §§ 4312 and 4313 when despite Plaintiff’s

compliance with the reemployment requirements of

38 U.S.C. § 4312, AA failed to promptly reemploy

Plaintiff in an appropriate position in accordance

with § 4313, following Plaintiff’s period of active

duty with the United States Air Force ending on

August 31, 2015.

a. Count Two

The Court DENIES AA’s Motion to Dismiss

because Plaintiff has adequately pleaded facts to

support him claim that he complied with the

requirements for reemployment outlined in § 4312.

Count Two of Plaintiff’s complaint specifically

113a

alleges that AA violated 38 U.S.C. § 4312 when “[AA]

denied [Plaintiff] the reemployment rights and

benefits and other employment benefits of USERRA

on or around August 26, 2015, when [AA] denied

[Plaintiff] reemployment until [Plaintiff] possessed a

valid First Class Medical Certificate.” (Compl. ¶ 82.)

Section 4312 provides that:

any person whose absence from a

position of employment is necessitated

by reason of service in the uniformed

services shall be entitled to the

reemployment rights and benefits and

other employment benefits of this

chapter if (1) the person . . . has given

advance written or verbal notice of such

service to such person’s employer; (2)

the cumulative length of the absence

and of all previous absences from a

position of employment with that

employer by reason of service does not

exceed five years; and (3) ... the person

reports to or submits an application for

reemployment to such employer in

accordance with subsection (e).

38 U.S.C. § 4312(a)(l)-(3). The parties do not dispute

that Plaintiff pleaded sufficient facts, which if taken

as true, meet each of the three requirements of

§ 4312. (Dkt. No. 14 at 9 and Dkt. No. 15.) For the

following three reasons, the Court holds that

Plaintiff’s complaint supports that conclusion.

First, the Court holds that Plaintiff has

pleaded sufficient facts to satisfy the first

requirement of § 4312, because it can be inferred

114a

from Plaintiff’s complaint that Plaintiff gave AA

advance notice of his July 2013 to August 31, 2015

period of military service. The first requirement of

§ 4312 is that a person give their employer advance

notice of their upcoming period of service. 38 U.S.C.

§ 3412(a)(l). The period of service at issue in this

case is Plaintiff’s June 2013 to August 31, 2015

period of active duty with the United States Air

Force in Saudi Arabia. (Compl. ¶¶ 77-78.) Plaintiff

has pleaded that AA placed Plaintiff on military

leave of absence when Plaintiff began his term of

active duty with the United States Air Force in June

of 2013 in Saudi Arabia. (Compl. ¶¶ 28-29.) Had AA

not known about Plaintiff’s June 2013 - August 31,

2015 period of service in advance, it would not have

been able to place Plaintiff on military leave of

absence. (Compl. ¶¶ 28-29.) Thus a reasonable

inference could be drawn that such placement on

military leave of absence was provided when

Plaintiff gave AA advance notice of this period of

military absence. Taking this allegation as true, the

Court finds that Plaintiff pleaded sufficient facts to

support his claim that he met the first § 4312

requirement for reemployment.

Second, the Court finds that Plaintiff has also

pleaded sufficient facts to support Plaintiff’s claim

that he has met the second condition of

§ 4312. The second reemployment requirement of

§ 4312 is that the cumulative length of absence for

military service be no more than five years. As

previously mentioned, Plaintiff maintains that his

term of service commenced in June of 2013, and

ended on August 31, 2015, totaling two years and

two months. (Compl. ¶¶ 28, 32.) Because this period

of time was less than five years, the Court holds that

115a

Plaintiff has adequately pleaded facts to support his

argument that he has met the second requirement of

§ 4312.

Third, the Court holds that Plaintiff has

pleaded adequate facts to satisfy the third condition

of § 4312. Section 4312 requires that a veteran must

submit an application for reemployment in

accordance with subsection (e) of § 4312. 38 U.S.C.

§ 4312(a)(3). Section 4312(e) provides that “[i]n the

case of a person whose period of service in the

uniformed services was for more than 180 days,”

such person must submit “an application for

reemployment with the employer not later than 90

days after the competition of

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