Crawford v. Department of the Army , 718 F.3d 1361 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
DARRELL T. CRAWFORD,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2012-3037
______________________
Petition for review of the Merit Systems Protection
Board in No. NY4324090336-X-1.
______________________
Decided: June 11, 2013
______________________
MATTHEW D. ESTES, Tully Rinckey PLLC, of Arling-
ton, Virginia, argued for petitioner. On the brief was
STEVEN L. HERRICK, of Washington, DC.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 DARRELL CRAWFORD v. ARMY
Before RADER, Chief Judge, DYK, and REYNA, Circuit
Judges.
REYNA, Circuit Judge.
Darrel T. Crawford appeals from a final decision of
the Merit Systems Protection Board (“the Board”) dis-
missing as moot his allegation that the Department of the
Army (“the Agency”) failed to comply with an order for
corrective action. The Board determined that the position
to which Mr. Crawford was assigned by the Agency in
response to the corrective action complied with §
4313(a)(2) of the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) because it
was of “like status” to the position he held prior to his
active, uniformed service. We do not find that the Board
acted arbitrarily or contrary to law in making this deter-
mination. We therefore affirm.
BACKGROUND
Mr. Crawford began his employment with the Agency
in 1986. With credit for military service, the inception
date of his federal service is 1979. During this time, he
has occupied several positions with the Agency. In April
2006, at the time Mr. Crawford was called to perform
uniformed service, he was an Information Technology (IT)
Specialist, GS-2210-11, in the Agency’s Army Corps of
Engineers New York District Information Management
Office (Mr. Crawford’s “old position”). Mr. Crawford’s
uniformed service lasted until about April 2008.
In June 2006, the Agency transferred many of its in-
formation management/information technology (IM/IT)
functions to Lockheed Martin. This transfer was author-
ized by the Office Management and Budget Circular A-76
program. As part of the transfer of IM/IT functions, the
Agency abolished Mr. Crawford’s old position and trans-
ferred those duties to Lockheed Martin employees, who
are not federal employees.
DARRELL CRAWFORD v. ARMY 3
At the same time the Agency transferred certain
IM/IT functions to Lockheed Martin, it also formed a new
organization called the Army Corps of Engineers-
Information Technology (ACE-IT). The mission of ACE-IT
is to provide IM/IT services to all agency offices in the
United States. In April 2007, recruitment began for the
new positions created within ACE-IT. Some Agency
employees affected by the A-76 program were hired by
ACE-IT through a competitive selection process. Those
employees that were not hired by ACE-IT were trans-
ferred, with their consent, to non-IM/IT positions in other
offices within the Corps of Engineers’ New York District.
When Mr. Crawford completed uniformed service, the
Agency briefly returned him to an IT Specialist position.
But in June 2008, the Agency reassigned him to the
position of Program Support Specialist, GS-0301-11. Mr.
Crawford challenged this reassignment with the Board.
He specifically alleged that the Program Support Special-
ist position violated 5 C.F.R. § 353.209(a) 1 because it was
not of “like status” to his old position as an IT Specialist.
As such, the Agency violated the reemployment protec-
1 5 C.F.R. § 353.209(a) reads as follows:
During uniformed service. An employee may not
be demoted or separated (other than military sep-
aration) while performing duty with the uni-
formed services except for cause. (Reduction in
force is not considered “for cause” under this sub-
part.) He or she is not a “competing employee”
under § 351.404 of this chapter. If the employee’s
position is abolished during such absence, the
agency must reassign the employee to another posi-
tion of like status, and pay.
5 C.F.R. § 353.209(a) (emphasis added).
4 DARRELL CRAWFORD v. ARMY
tions provided to those in uniformed service under 38
U.S.C. § 4313(a)(2). 2 The administrative judge (“AJ”)
2 38 U.S.C. § 4313 provides in pertinent part,
(a) Subject to subsection (b) (in the case of any
employee) and sections 4314 and 4315 (in the case
of an employee of the Federal Government), a per-
son entitled to reemployment under section 4312,
upon completion of a period of service in the uni-
formed services, shall be promptly reemployed in a
position of employment in accordance with the fol-
lowing order of priority:
...
(2) Except as provided in paragraphs (3) and
(4), in the case of a person whose period of
service in the uniformed services was for more
than 90 days—
(A) in 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 interrupt-
ed by such service, or a position of like sen-
iority, status and pay, the duties of which
the person is qualified to perform; or
(B) in the position of employment in which
the person was employed on the date of
the commencement of the service in the
uniformed services, or a position of like
seniority, status and pay, the duties of
which the person is qualified to perform,
only if the person is not qualified to per-
form the duties of a position referred to in
subparagraph (A) after reasonable efforts
by the employer to qualify the person.
DARRELL CRAWFORD v. ARMY 5
agreed that the Program Support Specialist position was
not of “like status” to Mr. Crawford’s old position and
granted his request for corrective action. As part of that
corrective action, the AJ ordered the Agency to identify
and place Mr. Crawford in a position of “like status” to an
IT Specialist. The AJ also ordered, pursuant to 5 C.F.R. §
353.110(a), that if the Agency determined that no appro-
priate positions were available or if it was otherwise
impossible or unreasonable to reassign Mr. Crawford to
such a position, then the Agency should notify the Office
of Personnel Management (OPM) to provide Mr. Crawford
with an opportunity to apply for placement assistance.
Neither party sought review of these orders, which be-
came final on March 31, 2010.
The Agency thereafter submitted a notice of compli-
ance with the corrective action, asserting it was not able
to find Mr. Crawford a position of “like status” to IT
Specialist and, therefore, had requested the OPM’s
placement assistance. In response, Mr. Crawford filed a
petition for enforcement with the Board challenging the
Agency’s alleged compliance with the corrective action.
Mr. Crawford argued that the Agency was required to
search for all positions of “like status” or the “next best”
available position, “whether occupied or not” before con-
cluding there were no appropriate positions available and
transferring the matter to the OPM for placement assis-
tance. Since the Agency’s search for positions was “ap-
parently limited to vacant positions,” Mr. Crawford
believed that the Agency failed to perform an adequate
search and, consequently, did not comply with the ordered
corrective action.
The AJ agreed with Mr. Crawford and granted his pe-
tition for enforcement of the ordered corrective action.
38 U.S.C. § 4313 (emphasis added).
6 DARRELL CRAWFORD v. ARMY
The Agency’s search was faulted for being overly restric-
tive in identifying positions of “like status” because “it
focused on only vacant positions.” The AJ therefore
recommended that the Agency conduct an agency-wide
search for a position of “like status” in order to comply
with the order for corrective action.
The Agency subsequently reassigned Mr. Crawford
from his position as a Program Support Specialist to a
position as an IT Specialist within ACE-IT (Mr. Craw-
ford’s “new position”). This new position has the same
title and grade as his old position (i.e., “IT Specialist, GS-
2210-11”). The new position is also located at the same
duty station as the old position.
Mr. Crawford appealed to the Board to contest the ad-
equacy of his assignment to the new position. Mr. Craw-
ford argued that while the title, grade, and location were
the same as his old position, the position was nevertheless
still not of “like status” to his old position. He argued that
the differences in duties associated with the positions
precluded them from being of “like status.” In particular,
Mr. Crawford asserts that his old position primarily
involved hardware-related duties, such as installing,
repairing, evaluating, and configuring computer systems
and their associated devices, and it only required him to
perform some limited software-related duties. In his new
position, however, his primary duties involve software
asset management and he does not have any hardware-
related responsibilities. Mr. Crawford also argued that he
was not qualified, as required by USERRA, to perform the
duties associated with his new position.
The Board disagreed. The Board found it undisputed
that Mr. Crawford’s old and new positions were similar or
identical with regard to pay, tenure, seniority, working
conditions, and rank or responsibility. The Board
weighed those factors against the alleged differences in
duties and found that, despite the non-identical duties,
DARRELL CRAWFORD v. ARMY 7
overall the positions were similar enough to comply with
the “like status” standard of USERRA. The Board also
believed that Mr. Crawford was qualified for the new
position since he had already performed the position
satisfactorily. Additionally, any argument Mr. Crawford
had regarding a lack of qualification would be overcome
once he received additional training. Based on these
findings, the Board concluded that the Agency was in
compliance with the order for corrective action and dis-
missed Mr. Crawford’s appeal.
Mr. Crawford appeals the Board’s dismissal. We have
jurisdiction under 28 U.S.C § 1295(a)(9).
STANDARD OF REVIEW
The scope of our review of a decision of the Board is
limited. In general, we can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
In determining whether the Board’s decision is sup-
ported by substantial evidence, the question “is not what
the court would decide in a de novo appraisal, but wheth-
er the administrative determination is supported by
substantial evidence on the record as a whole.” Parker v.
U.S. Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938).
DISCUSSION
Chapter 43 of Title 38 of the United States Code,
“Employment and Reemployment Rights of Members of
the Uniformed Services,” provides employment protection
8 DARRELL CRAWFORD v. ARMY
to those citizens called to active duty in the military
services. USERRA, 38 U.S.C §§ 4301–33; see also Nichols
v. Dep’t of Veterans Affairs, 11 F.3d 160, 162 (Fed. Cir.
1993). Under USERRA, an individual is entitled, follow-
ing his uniformed service, to be reemployed in a position
of “like seniority, status, and pay.” 38 U.S.C §4313(a)(2).
The implementing regulations note that when the em-
ployee’s position is abolished during uniformed service,
“the agency must reassign the employee to another posi-
tion of like status, and pay.” 5 C.F.R. § 353.209(a).
Although the statute does not define what is meant by
“status,” the implementing regulations explain that it
includes “opportunities for advancement, general working
conditions, job location, shift assignment, rank, responsi-
bility, and geographical location.” 20 C.F.R. § 1002.193.
There is no fixed test for determining whether two po-
sitions are of “like status.” Rather, we have indicated
that different criteria can be important in comparing the
“status” associated with employment positions in a par-
ticular case. For instance, in Nichols, we said, “a subse-
quent position must carry with it like responsibility,
duties and authority if it is to be of like status and thus
meet the requirements of the statute.” Nichols, 11 F.3d at
164 (Fed. Cir. 1993) (emphasis added). There, we found
differences in rank and authority to be dispositive in the
“like status” inquiry. Id. at 163–64 (“It goes without
saying that when one starts out as the boss, but is placed
in a position subordinate to the replacement boss, and
other new bosses, there is incontestably a loss of authori-
ty, and accordingly a diminished status.”). We have also
focused on shift assignments and working hours to evalu-
ate “like status.” 3 Smith v. U.S. Postal Serv., 540 F.3d
3 The flexible approach adopted in our precedent is
also consistent with how other courts have evaluated the
employment “status” inquiry. See, e.g., Serricchio v.
Wachovia Sec. LLC, 658 F.3d 169, 183 (2d Cir. 2011)
DARRELL CRAWFORD v. ARMY 9
1364, 1366 (Fed. Cir. 2008) (“case law establishes that
‘shift assignment’ and regular hours are benefits of em-
ployment” subsumed in our “status” inquiry).
The Board considers the “totality of the circumstanc-
es” when evaluating the “status” of an employment posi-
tion. The Board recognized that this approach was con-
consistent with the legislative intent of USERRA. See
Heidel v. U.S. Postal Serv., 69 M.S.P.R. 511, 515, SL-
0353-93-0390-C-1, 1996 WL 73314, at *2 (M.S.P.B. Feb.
13, 1996) (the legislative history “indicates congressional
approval of a ‘totality of the circumstances test’ in deter-
mining whether a returning veteran has been restored to
a position of ‘like status’”). In doing so, the Board identi-
fied House Report No. 102-56, which cites with approval
the federal district court’s decision in Monday v. Adams
Packing Ass’n, Inc., 73-102-CIV-T-H, 1973 WL 958 (M.D.
Fla. Dec. 6, 1973), as further support for considering the
“totality of the circumstances” test. The Monday court
explained the inquiry as follows:
The standards by which to measure or evaluate
the relative “status” of a given job classification,
as distinguished from seniority and pay compari-
sons, is a subject which has received little atten-
tion in the cases or the regulations. The Court
concludes, however, that the relative “status” of a
job is to be determined from the totality of the cir-
cumstances including (in addition to seniority and
pay) such considerations as opportunities for ad-
(considering number and valuation of accounts serviced
by employee prior to uniformed service); Duarte v. Agilent
Techs., Inc., 366 F. Supp. 2d 1039, 1042, 1045–46 (D. Colo.
2005) (considering change, following employee’s uni-
formed service, from more “primary” role to new role
“providing minimal assistance to other primary” employ-
ees).
10 DARRELL CRAWFORD v. ARMY
vancement, general working conditions, job loca-
tion, shift assignment, rank or responsibility, etc.
Monday, 1973 WL 958, at *3 (emphasis added).
We agree with the Board’s approach. A proper evalu-
ation of “like status” within the meaning of 38 U.S.C. §
4313 includes consideration of the totality of the circum-
stances. This interpretation is supported by the relevant
implementing regulations, 20 C.F.R. § 1002.193 (listing
various criteria subsumed in “status”), USERRA’s legisla-
tive history, H.R. Rep. No. 56, 102d Cong., 1st Sess. 28
(1991), and our case law. As with any test that considers
the totality of the circumstances, certain factors cannot be
singled out as dispositive without first weighing all of the
other potentially competing factors. This is not to say
that in some cases an individual factor cannot prove
dispositive. Rather, it means that before elevating the
importance of a single factor in the “like status” inquiry,
the impact of that factor must be considered within the
context of all other factors that are relevant to the in-
quiry.
It is also important to note that the statute should be
interpreted broadly in favor of individuals returning from
military service. This principle has long been recognized
by this Court in resolving disputes arising under
USERRA. See Nichols, 11 F.3d at 162–63 (“The historical
development of section 4301 shows that Congress intend-
ed it to be interpreted broadly in favor of those returning
from military service. The original 1940 legislation was
intended to offer veterans as much protection with respect
to reemployment and retention of employment as is
within reasonable bounds.”) (internal quotation marks
and brackets omitted). Indeed, the preference of the Act
is “to return the veteran to ‘such position’ as [she] had
previously occupied.” Nichols, 11 F.3d at 162–63. We
thus construe the statutory language to give effect to
Congress’ intent that a veteran not be penalized by reason
DARRELL CRAWFORD v. ARMY 11
of her absence, but that she retain her position, and any
accrued benefits, as if she had never left. See id. at 163.
While we weigh close cases of “status” in favor of the
veteran, we also acknowledge that restoring a veteran to
her exact former position, in some cases, is neither desir-
able nor feasible. This understanding is directly implied
by the regulatory scheme implemented by USERRA. For
example, 5 C.F.R. § 353.209 provides that “[i]f the em-
ployee’s position is abolished during [her] absence, the
agency must reassign the employee to another position of
like status, and pay.” 5 C.F.R. § 353.209 (emphasis
added). This provision recognizes that a restoring agency
is not required to recreate a position that the agency has
retired or abolished. See Nichols, 11 F.3d at 163 (“Even
as the preference of the Act is to give the veteran his old
job back, it does give the employer some discretion, ‘in
accordance with the dictates of sound management,’ to
restore the veteran to another position if it is truly of like
seniority, status, and pay . . . .”) (quoting Bova v. General
Mills, Inc., 173 F.2d 138, 140 (6th Cir. 1949)). Thus,
USERRA strikes a balance between the veteran and the
practical reality of a dynamic workplace. In considering
whether a veteran has been restored to a position of “like
status” we are not required to ignore constraints imposed
by programs, resources, and needs that do not remain
static. Instead, we acknowledge the existence of consid-
erations that evolve in tune with a progressing society.
With the foregoing considerations in mind, we turn to
the Board’s comparison of Mr. Crawford’s old and new
positions. Prior to his uniformed service, Mr. Crawford’s
old position was Information Technology Specialist, GS-
2210-11. The Board described this position “as that of a
hardware specialist in the Information Management
Office.” Crawford v. Dep’t of Army, 117 M.S.P.R. 38, 45
(M.S.P.B. 2011). The Board noted that, in his old posi-
tion, Mr. Crawford’s duties involved installing, repairing,
evaluating, and configuring computer systems and their
12 DARRELL CRAWFORD v. ARMY
devices.” Id. The Board specifically noted Mr. Crawford’s
admission that his old position, at least in part, entailed
“software-related duties.” Id. The Board therefore de-
termined that in his old position Mr. Crawford: “(1) in-
stalled, repaired, evaluated and configured computer
systems, including software systems; (2) maintained an
inventory and insured proper registration and receipts for
hardware and software; and (3) called vendors for resolu-
tion of problems involving hardware and software.” Id.On Mr. Crawford’s return from uniformed service, the
Agency reassigned Mr. Crawford to a position quite
different from his old position, presumably because his old
position had been abolished. After he protested, the
Agency assigned Mr. Crawford to a position at his former
facility having the same classification as his old position,
namely, Information Technology Specialist, GS-2210-11.
Mr. Crawford’s new position is within the newly created
ACE-IT. The Board described Mr. Crawford’s new posi-
tion “as that of a software asset manager who adminis-
ters, develops, delivers and supports IT systems and
services.” Id. According to the Board, in his new position
Mr. Crawford is responsible for: “(1) inventory manage-
ment and logging; (2) ensuring license compliance; and (3)
identifying, reporting and resolving a variety of IT issues
and problems.” Id.Reviewing Mr. Crawford’s old and new positions, and
considering the totality of the circumstances, we do not
find that the Board acted arbitrarily in determining that
Mr. Crawford’s old and new positions are of “like status.”
It is undisputed that Mr. Crawford’s “new position is
similar or identical to his prior position in regard to pay,
tenure, seniority, working conditions, and rank or respon-
sibility.” Id. These factors weigh strongly in favor of the
Board’s decision. Additionally, Mr. Crawford does not
dispute that his new position is “in the same general
information management field in which he previously
worked.” Id. at 46.
DARRELL CRAWFORD v. ARMY 13
We disagree with Mr. Crawford’s attempts to charac-
terize his old position as solely having duties related to
hardware. The description for Mr. Crawford’s old position
makes reference to various responsibilities involving
“software.” (Appellee’s App. A11.) For instance, the
“Duties” of that position included maintaining “an inven-
tory of all hardware and software” and calling vendors
“for hardware and software resolution.” Id. (emphasis
added). Mr. Crawford’s old position also specifically
required “[k]nowledge of common Off-the-Shelf soft-
ware . . . for Installation and support [of] users” and
required him to “[i]nstall Off-The-Shelf standard software;
network driver [sic], printer driver(s), and provide[] effi-
cient memory configuration.” Id. (emphases added).
These are software-related duties. The specification of
Mr. Crawford’s old position further notes that “[d]ue to
rapid changes in computer technology, work requires
wide-rang[ing] knowledge of functional characteristics of
many new computer devices. Employee requires quick
adoption of new technologies . . . . Incumbent is required
to install and configure all new and up-to-date technolo-
gy.” (Appellee’s App. A12 (emphasis added).) In sum, Mr.
Crawford’s old position included software-related duties
and he must have anticipated that those duties would
likely require that he be able to adapt to new technologies
involving software.
In his new position, Mr. Crawford has expanded soft-
ware responsibilities. His current duties include tracking
software assets, developing software management pro-
cesses and policies, and implementing a software library.
He also has various responsibilities related to data stor-
age and management. Id. Executing the duties of Mr.
Crawford’s new positions requires knowledge of and skill
in applying software management concepts. Id. Mr.
Crawford is also required to “recommend new or modified
standards to increase efficiency.” Id. While these duties
certainly increase the focus on the software duties of an
14 DARRELL CRAWFORD v. ARMY
IT Specialist, we do not find that the Board acted arbi-
trarily in determining that this adjusted focus did not
amount to a change in “status” from Mr. Crawford’s old
position.
In many ways, the duties of Mr. Crawford’s new posi-
tion appear to be commensurate with the natural evolu-
tion, directed by changing needs and technological
developments, of his old position. Mr. Crawford’s old
position included software-related duties and explicitly
required the ability to adapt to a rapidly changing tech-
nical setting. In his new position, Mr. Crawford’s focus on
software does not represent a wholesale substitution in
new duties that were entirely absent from the bundle of
responsibilities and requirements of his old position. The
shifted focus only reflects that the apportionment of
software-related duties has increased. Thus, while some
of the duties of his new position are different from his old
position, we cannot say that an IT specialist would not
naturally have been required to adapt to increased soft-
ware-related duties as an inevitable response to the
demands of evolving technological priorities.
Like Mr. Crawford, all of his former co-workers “all
essentially lost their positions” as a result of the A-76
outsourcing. See Crawford, 117 M.S.P.R. at 46. Those
individuals “either successfully competed for non-
information management positions in the newly created
ACE-IT, or the agency placed them in non-information
management positions elsewhere within the District.” Id.
Notwithstanding Mr. Crawford’s uniformed status, those
co-workers were situated equally with him and they were
not automatically entitled to positions within ACE-IT in
the information management field. Yet, deservingly, Mr.
Crawford has been assigned, without competition, to a
position at ACE-IT with the same title, grade, and classi-
fication as his old position, in the same duty station, and
with substantially similar duties. Conversely, many of
Mr. Crawford’s coworkers were not able to secure similar
DARRELL CRAWFORD v. ARMY 15
positions within ACE-IT. Mr. Crawford’s uniformed
status therefore provided him with advantages over his
former co-workers in securing his new position.
Mr. Crawford also argues that the Board erred by
concluding that he was qualified, or could be qualified
through reasonable efforts, to perform the duties of his
new position. The record does not support these conten-
tions. To the contrary, the record indicates that Mr.
Crawford was already performing the duties of his new
position and his supervisor declared that such duties
required little or no formal training. Based on these facts
and considering the substantial overlapping duties be-
tween his old and new positions, as described above, we
do not find that it was arbitrary for the Board to conclude
that Mr. Crawford satisfied the qualification require-
ments of his new position.
In view of these considerations, we conclude that the
Board did not act arbitrarily or contrary to law in deter-
mining that, despite some differences in duties, Mr.
Crawford’s old and new positions are of “like status”
within the meaning of 38 U.S.C. § 4313.
Having considered the balance of Mr. Crawford’s ar-
guments, we find no reversible error in the determina-
tions of the Board.
CONCLUSION
In view of the foregoing, we conclude that the Board
did not act arbitrarily, or contrary to law, in determining
that the Agency has satisfied its obligation under 38
U.S.C. § 4313 to restore Mr. Crawford to a position of “like
seniority, status and pay.” Accordingly, the decision of
the Board is
AFFIRMED