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Devona Hollingsworth v. Department of Veterans Affairs

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2018-2100 · judgment May 17, 2019

Certiorari denied · April 27, 2020
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

The Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA) provides reemployment rights to all employees serving in the uniformed services. See 38 U.S.C. §§ 4312-4318. Congress delegated the responsibility to promulgate regulations protecting the reemployment rights of federal employees serving in the uniformed services to the Office of Personnel Management (OPM). See 38 U.S.C. § 4331(b)(1). In turn, OPM’s regulations state that a federal employee may not be terminated while performing duty with the uniformed services except for cause. See 5 C.F.R. § 353.209. The questions presented are:

  1. Are USERRA’s reemployment rights applicable to federal employees during their probationary period? If so, may an agency-employer terminate an employee during a probationary period without considering reasonableness of the termination for the conduct in question and providing fair notice that the conduct in question would be constitute case for discharge, despite OPM’s regulations?

  2. Whether the Merit Systems Protection Board committed harmful error by applying a legal standard to the reemployment rights of a probationary employee serving in the uniformed services that conflicts with USERRA and the corresponding regulations as promulgated by OPM?

Counsel of record

For petitioner
Joseph D Magri
Merkle, Magri, Meythaler, PA

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Apr 27 2020
    Petition DENIED.
  2. Apr 08 2020
    DISTRIBUTED for Conference of 4/24/2020.
  3. Apr 06 2020
    Reply of petitioner Devona Hollingsworth filed. (Distributed)
  4. Mar 20 2020
    Motion of petitioner to delay distribution of the petition for a writ of certiorari under Rule 15.5 from March 25, 2020 to April 8, 2020, submitted to The Clerk.
  5. Mar 20 2020
    Motion to delay distribution of the petition for a writ certiorari until April 8, 2020, granted.
  6. Mar 06 2020
    Brief of respondent Department of Veterans Affairs in opposition filed.
  7. Jan 30 2020
    Motion to extend the time to file a response is granted and the time is further extended to and including March 6, 2020.
  8. Jan 29 2020
    Motion to extend the time to file a response from February 5, 2020 to March 6, 2020, submitted to The Clerk.
  9. Jan 02 2020
    Motion to extend the time to file a response is granted and the time is further extended to and including February 5, 2020.
  10. Dec 31 2019
    Motion to extend the time to file a response from January 6, 2020 to February 5, 2020, submitted to The Clerk.
  11. Dec 04 2019
    Motion to extend the time to file a response is granted and the time is extended to and including January 6, 2020.
  12. Dec 03 2019
    Motion to extend the time to file a response from December 6, 2019 to January 6, 2020, submitted to The Clerk.
  13. Nov 01 2019
    Petition for a writ of certiorari filed. (Response due December 6, 2019)