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?”