FH+H Resolves Decade-long USERRA Lawsuit in Groundbreaking Victory for Servicemembers

Attorneys Kevin Byrnes and Rachel Leahey helped to reverse numerous errors of the U.S. Merit Systems Protection Board (MSPB) and its administrative judges in a landmark decision.


In a landmark decision, the Federal Circuit ruled that FH+H client Jerry Beck was discriminated against based on his military status when he was denied promotion after being demeaned by the selecting official for being a “mere cook” in the U.S. Navy.

The Circuit ruled that Beck, who was clearly more qualified for the position than the selectee, was denied a benefit of employment under the Uniform Services Employment and Reemployment Act (USERRA) when he experienced hostility from the selecting official in the U.S. Navy and was denied selection.

The Federal Circuit noted that the case followed a decade-long trajectory before the Merit Systems Protection Board (MSPB, which has exclusive jurisdiction over USERRA-based claims.

In 2012, the administrative judge presiding over the case denied Beck discovery of any kind, while granting it to the U.S. Navy, which is the agency that Beck had served for 21 years in uniform and five as a civilian. The judge ruled that Beck could not raise a claim under USERRA because the selecting official was a Navy Captain and “one military member cannot discriminate against another”.

The case was then appealed to the full MSPB, which in 2013, remanded the case to the MSPB regional office. The MSPB regional office took no action. In 2016, Beck asked the Federal Circuit for a writ of mandamus, which is a demand to a higher court to require a lower body to act. So, a new MSPB administrative judge was assigned.

In 2016, the newly-assigned judge ruled that while Beck may have been discriminated against, the selecting official engaged in “preselection”, which is the act of selecting someone based on personal favoritism regardless of the qualifications of the competitors. The Navy, sensing that preselection can violate federal employment regulations, explicitly denied the method as a basis for non-selection of Beck. Yet, in order to excuse the Navy of liability, the judge insisted “preselection” was used.

Beck ultimately filed the matter with the Federal Circuit, which authorizes such filings in certain circumstances, in 2018.

Citing the prolonged and torturous history of the case, the Federal Circuit showed little deference to the MSPB or its administrative judges. Echoing the contention that the MSPB judge had become an alternate attorney for the Navy by advancing a theory to block liability, the Circuit rejected a claim that preselection was an appropriate defense to discrimination. The Federal Circuit also noted that the reliance on preselection had little evidentiary support.

The Circuit noted that preselection, when coupled with a discriminatory motive, is not a defense to discrimination. Preselection is, in fact, an expression of that very discrimination and thus, it would be illogical to allow an employer to avoid liability by simply stating the person it selected was who it intended to select regardless of the other applicants.

Dismayed by the numerous evidentiary errors, the less than even-handed approaches of the MSPB, and the sheer delay of a decade, the Federal Circuit reprimanded the collective actions of the judges as well as the theories put forth by the Navy.

The Circuit ruled, unequivocally, that USERRA protects “performance of service” that is it applies to the particulars of that service. USERRA protects any type of military service and upheld with moving language the purpose of USERRA and its connection to justice in the larger society:


“Throughout the span of more than two decades, the scope of Beck’s military service expanded to encompass, among other things, cooking and performing he functions of a CPO-the two activities that underlie the… findings of military service-based discrimination.” In words that signaled an appreciation of all types of service in uniform, the Circuit noted: An individual’s commitment to the obligation to, for example, provide health care (nurse). Fly aircraft during armed conflict (fighter pilot), write legal briefs (Judge Advocate General’s officer), or even cook meals for his fellow service members ought not to diminish the significant contributions of that person’s service in the armed forces.  Beck has endured a decade of delayed justice. We cannot correct every wrong in society; but we remedy this wrong today. Working-class men and women striving to improve their lives must frequently overcome great barriers-including increasing inequality, insidious discrimination and lack of access to opportunity-in the arduous path to success. In a world where inequities often go unchecked, the judiciary stands as a beacon of hope to ensure that justice and the principles that perform the bedrock of democracy, do not become a mere afterthought.”


The case was pursued by Partner Kevin Byrnes from the outset and up to and through the appeal to the Federal Circuit involved the full support of FH+H, particularly Senior Associate Rachel Leahey on brief.

Note: Case results depend on a variety of unique factors and do not guarantee or predict similar results for future cases.

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