Anthony W. Knox v. Department of Justice

United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY W. KNOX,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2023-1160
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-20-0191-I-3.
______________________
Decided: January 6, 2025
______________________
KEVIN EDWARD BYRNES, Fluet, Tysons, VA, argued for
petitioner. Also represented by GRACE H. WILLIAMS.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before MOORE, Chief Judge, CHEN and STOLL, Circuit
Judges.
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KNOX v. DOJ 2
CHEN, Circuit Judge.
Mr. Anthony W. Knox brought reemployment and
discrimination claims under the Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38
U.S.C. §§ 4301–35, seeking to retroactively correct both
when he received a within-grade pay increase and when he
was promoted. The Merit Systems Protection Board
(Board) granted his within-grade increase reemployment
claim but denied his promotion claims and his within-
grade increase discrimination claim. Knox v. Dep’t of Just.,
No. SF-4324-20-0191-I-3, 2022 WL 4675449, 2–3 (M.S.P.B.
Sept. 21, 2022) (Decision).1 Mr. Knox appeals. For the
following reasons, we affirm in part, vacate in part, and
remand.
I.
Mr. Knox was a Special Agent with the Drug
Enforcement Administration (DEA) from 1997 until his
retirement in 2020. Decision at 2. He was also a member
of the United States Air Force Reserves. Id.
Between November 22, 2002, and November 21, 2003,
Mr. Knox was deployed on active duty in the Air Force for
Operation Iraqi Freedom. Id. at 2, 7–8. At the time of his
deployment, Mr. Knox was a GS-12 step 2 employee. Id. at
7–8. While he was deployed, Mr. Knox’s DEA supervisor,
Ms. Lori Cassity, submitted a Within-Grade Increase
Record form indicating that Mr. Knox was at an acceptable
level of competence and that the effective date for his next
within-grade increase would be February 23, 2003. Id. at
8.
1 The electronic version of the decision lacks page
numbers, so we cite to the pagination used in the decision
at J.A. 1–26.
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KNOX v. DOJ 3
Mr. Knox returned to the DEA on November 24, 2003.
Id. Though the government agrees that Mr. Knox was
entitled to receive a within-grade increase to GS-12 step 3
effective as of February 23, 2003, Appellee’s Br. 4, the
effective date for that within-grade increase was
incorrectly set as April 20, 2003. Decision at 8.
On March 10, 2004, Mr. Knox submitted to Ms. Cassity
a promotion request memorandum noting that he would be
eligible for promotion to GS-13 on April 20, 2004. Id. On
April 1, 2004, Ms. Cassity recommended that Mr. Knox be
promoted to GS-13 as of his date of eligibility, but the DEA
did not process the promotion request because of
instructions to hold promotion requests due to an
impending change of policy. Id. at 8–9.
Under the then-operative policy, there were two paths
to promotion to GS-13. Id. at 6. First, Special Agents “may
be considered for promotion to GS-13 after one year in
grade if recommended by the Special Agent in Charge
(SAC) based on the criteria established for the various
categories of Special Agent assignments.” Id. (citation
omitted). Second, Special Agents could “be considered for
promotion to GS-13 after three years or more service at GS-
12 based on the SAC’s personal recommendation, if they
meet [certain] criteria.” Id. (citation omitted). The policy
stated that “[n]o promotion will be automatic, but if all the
above criteria are met, the SAC’s personal recommendation
will normally be accepted after review by the Position
Review Committee.” Id. (citation omitted).
The DEA issued a Revised Promotion Policy and
Procedures memorandum on June 15, 2004. Id. at 7. The
new policy specified that a Special Agent may be
noncompetitively promoted to GS-13, but such promotions
“are neither an entitlement nor automatic.” Id. (citation
omitted). Under that policy, promotions would “be
approved only after a GS-12 Special Agent has been in
grade at least one year and has demonstrated competencies
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KNOX v. DOJ 4
to perform at the GS-13 level, and must be based on
established criteria and demonstrated ability to
satisfactorily perform the higher graded duties.” Id.
Mr. Knox was eventually promoted to GS-13 on April
17, 2016. Id. at 9.2
In January 2020, Mr. Knox filed the present appeal
with the Board. Id. at 2. Mr. Knox brought reemployment
and discrimination claims under USERRA. Id. Through
each of these claims, he sought to retroactively correct both
his within-grade increase to GS-12 step 3 to February 23,
2003, and his promotion to GS-13 to February 2004. Id.
An Administrative Judge granted Mr. Knox’s within-
grade increase reemployment claim because the DEA
admitted that Mr. Knox should have received his within-
grade increase to GS-12 step 3 effective February 23, 2003,
rather than April 20, 2003. Id. at 10–11. But the
Administrative Judge denied Mr. Knox’s within-grade
increase discrimination claim. Id. at 11. The
Administrative Judge found that there was no apparent
link between Mr. Knox’s 12 months of military service and
his 2-month delay in receiving his within-grade increase.
Id. Mr. Knox therefore failed to show that it was more
likely than not that the delay was based on his military-
related absence as opposed to a random administrative
error. Id. at 11–12. The Administrative Judge also denied
Mr. Knox’s promotion reemployment and discrimination
claims. Id. at 12–16.
For the promotion reemployment claim, Mr. Knox
argued that he was prejudiced by the delay in his
promotion eligibility from February 2004 to April 2004. He
contended that this two-month delay caused his promotion
application to be considered under the June 2004 policy,
2 Neither the parties nor the Decision explains this
12-year temporal gap.
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KNOX v. DOJ 5
which materially changed the promotion criteria. Id. at 12.
Mr. Knox provided evidence that a colleague was promoted
in March 2004, so he asserts that his application would
have been reviewed favorably under the prior promotion
policy if he had submitted his promotion in February 2004.
Id. The government also admitted that Mr. Knox “should
have been evaluated for promotion” under the pre-June
2004 policy if Mr. Knox’s GS-13 promotion package had
been submitted to the DEA Headquarters in February
2004. J.A. 406.
Mr. Knox provided several types of evidence to prove
that he would have received the promotion if he had been
considered under the pre-June 2004 policy. First, Mr. Knox
filed a declaration stating that he asked Ms. Cassity to
submit his promotion package in February 2004, but she
advised him to wait until he was eligible in April 2004.
Decision at 13, 16. Second, Mr. Knox submitted evidence
that his April 2004 application was supported by
Ms. Cassity and SAC John Bott. Id. at 8; J.A. 108. Third,
Mr. Knox also provided the below evidence showing that,
in recent years, the DEA had approved promotions for GS-
12 applicants with a year of step-3 service at rates often
exceeding 98%:
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KNOX v. DOJ 6
Appellant’s Br. 10.
The Administrative Judge denied the promotion
reemployment claim, however, because even if Mr. Knox’s
application had been reviewed under the pre-June 2004
policy, “all GS-13 promotions were discretionary,” and
therefore “eligibility for promotion does not equate to
entitlement for promotion.” Decision at 12 (emphasis in
original). The Administrative Judge thus concluded that
“[b]ecause the GS-13 promotion was not automatic,
[Mr. Knox] cannot show that it was a right of employment
to which he otherwise would have been entitled.” Id. at 13.
The Administrative Judge denied the promotion
discrimination claim for similar reasons as those given for
the denial of the within-grade increase discrimination
claim: The delayed within-grade increase was a mistake,
but “there is no evidence that uniformed service played a
role (let alone a substantial or motivating role) in causing
that mistake, or in causing any follow-on consequences of
that mistake, such as delaying the GS-13 promotion
package to April 2004.” Id. at 16.
Neither party petitioned for full board review of the
Administrative Judge’s initial decision, and thus it became
the Board’s final decision. 5 C.F.R. § 1201.113; see Adams
v. Dep’t of Homeland Sec., 3 F.4th 1375, 1377 (Fed. Cir.
2021). Mr. Knox appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II.
Our review of Board decisions is statutorily limited.
See 5 U.S.C. § 7703(c). “We must set aside any findings or
conclusions of the Board that we determine to be
‘(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.’”
Tierney v. Dep’t of Just., 717 F.3d 1374, 1376–77 (Fed. Cir.
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KNOX v. DOJ 7
2013) (quoting 5 U.S.C. § 7703(c)). The Board abuses its
discretion if its decision is based on an erroneous
conclusion of law. Santos v. Nat’l Aeronautics & Space
Admin., 990 F.3d 1355, 1360 (Fed. Cir. 2021). Factual
findings are reviewed for substantial evidence. McGuffin
v. Soc. Sec. Admin., 942 F.3d 1099, 1107 (Fed. Cir. 2019).
Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938).
A.
Mr. Knox argues that the Board erred in denying his
promotion reemployment claim. According to Mr. Knox,
the Board applied the incorrect legal standard because it
required Mr. Knox to prove that he was entitled to an
“automatic” promotion. We agree that the Board applied
the incorrect legal standard and vacate and remand for
further proceedings on Mr. Knox’s promotion
reemployment claim.
USERRA provides that military service members are
entitled to a right to reemployment and other employment
benefits after completing their military obligations.
38 U.S.C. § 4312(a); Hayden v. Dep’t of Air Force, 812 F.3d
1351, 1361 (Fed. Cir. 2016). Under the applicable
regulations, “agencies have an obligation to consider
employees absent on military duty for any incident or
advantage of employment that they may have been entitled
to had they not been absent.” 5 C.F.R. § 353.106(c). The
regulation then lists three factors to consider when
determining whether an employee absent on military duty
is entitled to an advantage of employment:
(1) Considering whether the “incident or
advantage” is one generally granted to all
employees in that workplace and whether it was
denied solely because of absence for military
service;
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KNOX v. DOJ 8
(2) Considering whether the person absent on
military duty was treated the same as if the person
had remained at work; and
(3) Considering whether it was reasonably certain
that the benefit would have accrued to the
employee but for the absence for military service.
Id.; see also Hayden, 812 F.3d at 1361–62.
Here, the Board applied the incorrect legal standard to
Mr. Knox’s claim. It concluded that Mr. Knox could not
establish that he was entitled to a promotion “[b]ecause the
GS-13 promotion was not automatic.” Decision at 13. But
the promotion did not have to be automatic for Mr. Knox to
prevail. Rather, the correct question is whether Mr. Knox
“may have been entitled to” the promotion. 5 C.F.R.
§ 353.106(c). That determination is evaluated by
considering the regulation’s three enumerated factors,
including whether the promotion was “generally granted to
all employees” and “whether it was reasonably certain that
the benefit would have accrued.” Id.; see also Hayden, 812
F.3d at 1361–62. We thus remand for the Board to
reconsider Mr. Knox’s promotion reemployment claim
under the appropriate legal standard.
In its brief, the government noted that “[i]n order to
prevail on his USERRA reemployment claim, Mr. Knox
was required to demonstrate that it was reasonably certain
that he would have been promoted but for his absence for
military service.” Appellee’s Br. 16 (quoting 5 C.F.R.
§ 353.106(c)(3)). But then at oral argument, the
government contended for the first time that all three
factors under 5 C.F.R. § 353.106(c) must be satisfied. See
Oral Arg. at 16:45–18:21 (available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-1160_10092024.mp3). We leave it to the Board on remand
to determine whether it is necessary to decide this issue in
order to resolve Mr. Knox’s promotion reemployment claim
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KNOX v. DOJ 9
and, if so, whether all three of the regulation’s factors must
be met and who bears the burden of proof on those factors.
B.
Mr. Knox argues that substantial evidence does not
support the Board’s denial of his discrimination claims. We
affirm the Board’s decision on this issue.
“A person who is a member of . . . a uniformed service
shall not be denied . . . promotion . . . on the basis of that
membership . . . .” 38 U.S.C. § 4311(a). An employer
violates section 4311(a) “if the person’s membership . . . in
the uniformed services is a motivating factor in the
employer’s action, unless the employer can prove that the
action would have been taken in the absence of such
membership.” Id. § 4311(c)(1). “An employee making a
USERRA claim bears the initial burden of showing by a
preponderance of the evidence that the employee’s military
service was a substantial or motivating factor in the
adverse employment action.” Sharpe v. Dep’t of Just., 916
F.3d 1376, 1379 (Fed. Cir. 2019) (cleaned up). If this
burden is met, “the employer then has the opportunity to
come forward with evidence to show, by a preponderance of
the evidence, that the employer would have taken the
adverse action anyway, for a valid reason.” Sheehan v.
Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).
Substantial evidence supports the Board’s finding that
Mr. Knox failed to prove that his “uniformed service played
a role (let alone a substantial or motivating role) in
causing” the delay of the effective date of his within-grade
increase “or in causing any follow-on consequences of that
mistake, such as delaying the GS-13 promotion package to
April 2004.” Decision at 16. The Board noted that neither
party established why Mr. Knox’s within-grade increase
was delayed. Id. at 11. It also found that there was no
apparent link between Mr. Knox’s twelve months of service
and the two-month delay. Id. If the within-grade increase
delay was because of his military service, then the Board
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KNOX v. DOJ 10
would have expected the delay to be twelve months as that
would be commensurate with his time in service. Id.
Mr. Knox counters the Board’s finding by pointing to
email correspondence that he contends shows his within-
grade increase “was delayed because of confusion by agency
employees about how to address [Mr.] Knox’s creditable
service while he was deployed.” Appellant’s Br. 26; see also
J.A. 1036. We decline this invitation to reweigh the
evidence on appeal. See Jones v. Dep’t of Health & Hum.
Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016). But we also
note that those emails are between human resources
specialists at the DEA. Confusion among human resources
personnel plausibly supports the Board’s finding that the
reason for the delay was administrative. If “two different,
inconsistent [findings] may reasonably be drawn from the
evidence in record, an agency’s decision to favor one
[finding] over the other is the epitome of a decision that
must be sustained upon review for substantial evidence.”
In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002).
III.
Mr. Knox next contends that the Administrative Judge
abused his discretion in several rulings related to case-
management and discovery. We reject these arguments.
“We review the MSPB’s evidentiary rulings for abuse of
discretion.” Sharpe, 916 F.3d at 1379. We “will not
overturn the board on such matters unless an abuse of
discretion is clear and is harmful.” Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). “If an abuse
of discretion did occur with respect to the discovery and
evidentiary rulings, in order for petitioner to prevail on
these issues he must prove that the error caused
substantial harm or prejudice to his rights which could
have affected the outcome of the case.” Id. at 1379.
Mr. Knox specifically challenges three of the
Administrative Judge’s decisions. First, the
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KNOX v. DOJ 11
Administrative Judge denied a motion to compel because
Mr. Knox’s counsel failed to confer about the dispute either
via telephone or in person. J.A. 422–23. The
Administrative Judge had previously issued an order
requiring that motions to compel “must be accompanied by
evidence showing that the party attorneys made efforts to
confer about the dispute either via telephone conversation
and/or in-person to narrow the areas of disagreement.”
J.A. 318. That order also required the parties to file
motions to compel within five days after the time limit for
a response or the date of the service of objections rather
than the ten days specified in 5 C.F.R. § 1201.73. Second,
the Administrative Judge declined three joint requests to
stay the proceedings due to COVID-19. J.A. 456–57;
J.A. 467–69; J.A. 492–94. Last, during a conference call,
the Administrative Judge discussed the government’s
laches defense, asked about a particular document, and
inquired about Mr. Knox’s current employer. See
J.A. 1234–43.
For the motion to compel, we need not determine
whether the Administrative Judge abused his discretion
because Mr. Knox failed to show how he was prejudiced.
For example, Mr. Knox does not point to what evidence
may have been helpful to his case or why he could not get
that information through other discovery.
As to declining to stay the case and the Administrative
Judge’s commentary during the conference call, Mr. Knox
has provided neither legal authority nor a persuasive
reason explaining why the Administrative Judge was
required to stay the case or could not ask questions that he
deemed pertinent during the conference call. We therefore
decline to conclude that the Administrative Judge abused
his discretion.
IV.
Two other issues warrant discussion. First, Mr. Knox
contends that the Board abused its discretion in ruling on
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KNOX v. DOJ 12
the government’s laches defense. Second, he asks us to
remand the case to a different Administrative Judge. We
need not address the merits of either of these arguments.
The Board rejected the government’s laches argument
except for alternatively determining that laches would
apply to Mr. Knox’s promotion discrimination claim. See
Decision at 16 n.2. Because we affirm the denial of the
promotion discrimination claim irrespective of whether
laches applies, we need not address the laches issue.
Mr. Knox’s argument for reassigning the case to a
different Administrative Judge on remand is limited to one
sentence, which is not even found in the argument section
of his brief: “Should the Federal Circuit deem this matter
suitable for remand, [Mr.] Knox requests remand to a
different [Administrative Judge], as the [Administrative
Judge’s] actions in this case demonstrated [Mr.] Knox will
not receive a fair hearing on remand.” Appellant’s Br. 7.
Mr. Knox forfeited this argument by failing to present
anything more than an underdeveloped, skeletal
argument. See In re Killian, 45 F.4th 1373, 1385–86 (Fed.
Cir. 2022) (citing SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)). We also see
nothing in the record to indicate that reassignment would
be appropriate or necessary in this case.
V.
We have considered Mr. Knox’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm in part, vacate in part, and remand.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED
COSTS
No costs.
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