Appealed from: Merit Systems Protection Board
Before Newman, Bryson, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Newman, Circuit Judge.
Kenneth M. Allen appeals the final decision of the Merit Systems Protection Board, Docket No. CH0353960993-I-1, affirming the action of the United States Postal Service ("USPS") in connection with denial of a job opportunity that arose during his absence for military service. *fn1 We conclude that the Board erred in application of 38 U.S.C. §4301(b)(3). The decision of the Board is reversed; we remand for appropriate further proceedings.
Mr. Allen was employed by the USPS as a Tool and Parts Clerk, level PS-5, in a position designated for the afternoon or evening shift. He desired a position on the day shift, but no opening on the day shift had arisen. Mr. Allen also was an adjunct of the Ohio Air National Guard, and for the period February through June 1994 he was called to active duty and posted to Panama.
In February or March 1994 the USPS created an additional Tool and Parts Clerk PS-5 position on the day shift at Mr. Allen's location. Mr. Allen did not learn of the new position until he returned to the USPS after completion of his military assignment. By then the position had been filled, and Mr. Allen's assertion of a senior right to the position was rejected by the USPS. On appeal to the Board Mr. Allen argued that the USPS had an obligation, as well as several opportunities, to inform him of the position while he was on military duty, and that by statute persons on military service are not to be disadvantaged because of that service. The USPS conceded that Mr. Allen's entitlement to the position was superior to that of the person who was appointed.
The USPS argument was that neither the collective bargaining agreement, USPS regulations, nor USPS practice required that Mr. Allen be given notice of job openings that arose while he was on active military duty. The USPS stated that the burden rested entirely on Mr. Allen to seek out or request information about new jobs while he was away from the jobsite on active duty, and that the USPS had no obligation to provide him with such information. The USPS stated that although its regulations require the USPS to provide notice of new positions to employees on "annual leave" if they have left a written request for such information and their address, this obligation does not extend to employees on military leave. The USPS stated that Mr. Allen had not specifically asked to be informed, while he was on active duty, of any job openings that might arise.
The USPS also stated that although its regulations require that employees on military duty be considered for promotions during their absence, 5 C.F.R. §353.201(a) (1994) ("promotion plans must provide a mechanism by which employees who are absent because of . . . military duty can be considered for promotion"), the day shift position would not have been a promotion for Mr. Allen and thus was not covered by this regulation. As an additional reason for not notifying Mr. Allen of the new position, the USPS referred to its "preferred assignment selection [PAS] forms" by which employees formally express interest in positions for which they wish to be considered. The USPS pointed out that Mr. Allen had not listed the new position on his PAS form. Mr. Allen replied that he could not have listed the new position on his PAS form because he did not know about it.
Without reference to the applicable statutes, the Board held that the USPS must treat employees on military duty as if they were on furlough or leave of absence, and concluded that since the USPS is not required to notify employees who are on furlough or leave of absence of new employment opportunities, no such requirement applies to employees on military service. The Board did not address whether the USPS must place Mr. Allen in the new position whether or not the USPS was required to provide notice of the new job opening. This appeal followed.
Board actions, findings, and Conclusions are reviewed to ascertain whether they were "(1) arbitrary, capricious, an abuse of discretion, 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) (1994). No significant facts are here in dispute. The issue is whether the USPS had a duty to inform Mr. Allen of this position or otherwise to enable Mr. Allen to compete for the appointment.
The events of this case occurred in early 1994, before the October 13, 1994 amendments to 38 U.S.C. §§4301-4307. See 38 U.S.C. ch. 43 (1994) (Codification) ("Former chapter 43 [§§4301-4307] . . . continues to apply to reemployments initiated before the end of the 60-day period beginning Oct. 13, 1994 . . . .") The Board's decision does not cite any statutory provision or regulatory implementation, and makes no reference to the extensive legal framework governing the status of federal civilian employees serving on military duty. Mr. Allen correctly cites chapter 43, see 38 U.S.C. ch. 43 (Supp. V 1993), and quotes §4301(b)(2) as the statute stood in early 1994, a 1992 amendment having renumbered §§2021-2027 as §§4301-4307. See Veterans' Benefits Act of 1992, Pub. L. No. 102-568, Title V, §506(a), 106 Stat. 4320, 4340 (1992).
Mr. Allen is correct that 38 U.S.C. §4304(b) as in effect before the October 1994 amendments applied to his restoration to civilian service after active duty, and granted him the rights and benefits detailed in 38 U.S.C. §4301. Accordingly, Mr. Allen could "not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment," §4301(b)(3), in turn implementing the statutory purpose
to give such person such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person's entering the Armed Forces until the time of ...