United States Court of Appeals for the Federal Circuit 

2007-3238 

ANDY L. SMITH, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

Thomas E. Vanderbloemen, Gallivan, White & Boyd, P.A., of Greenville, South 

Carolina, argued for petitioner. 

Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondent. With 

her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Steven J. Gillingham, Assistant Director. 

Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit

2007-3238 

ANDY L. SMITH, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

Petition for review of the Merit Systems Protection Board in 

DA3443070139-I-1 

___________________________ 

DECIDED: September 4, 2008 

___________________________ 

Before LOURIE, BRYSON, and PROST, Circuit Judges. 

BRYSON, Circuit Judge. 

 Andy L. Smith appeals from a decision of the Merit Systems Protection Board 

denying his request for compensation under the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-33. He sought an 

award of compensation for working irregular hours in a part-time position upon his 

return from military service when he should have been placed in a full-time position with 

regular hours. The Board held that he was not entitled to compensation because he 

would not have had an irregular work schedule if he had been timely appointed to the 

full-time position to which he was entitled and therefore would not have earned premium 

pay. We agree with Mr. Smith, however, that he is entitled to compensation because he 

was denied a benefit of the full-time position, i.e., a regular schedule of work. We 
2007-3238 2 

therefore vacate the Board’s decision and remand for a determination of the amount of 

compensation owed to Mr. Smith. 

I 

Mr. Smith was a member of the U.S. Army Reserve who was called to full-time 

military duty on October 22, 2001. He left his position with the United States Postal 

Service and entered on active duty on December 12, 2001. At that time, Mr. Smith was 

working as a flexible mail processing clerk at the East Texas Processing and 

Distribution Center in Tyler, Texas. During his absence for military duty, Mr. Smith bid 

on a full-time position as a custodian. Upon his return from military service, Mr. Smith 

was not given the custodian position, but was placed in a part-time clerk’s position. He 

served in that position from January 8, 2005, until August 20, 2005. At that time, 

pursuant to a successful grievance filed by his union, Mr. Smith was transferred to a fulltime custodian position, working the Tour 2 shift (6:30 a.m. to 3:00 p.m.). 

Mr. Smith subsequently filed an administrative complaint with the Merit Systems 

Protection Board, which has jurisdiction over complaints alleging USERRA violations by 

federal executive agencies. See 38 U.S.C. § 4324. In his complaint and in the 

subsequent proceedings before the Board, Mr. Smith argued that, based on the 

application he submitted while he was in the military, he was entitled to return to the fulltime custodian position immediately upon his return from military service. 

In the course of the litigation, the Postal Service conceded that Mr. Smith should 

have been rehired directly into the custodian position as a full-time employee with 

higher pay and regular hours. Accordingly, the Postal Service gave him seniority rights 

retroactive to the date of his application in December 2003 and back pay representing 
2007-3238 3 

the difference between the pay of the full-time and part-time positions, for a total of 

$1,465.05. The Postal Service also reimbursed him for the health insurance premiums 

it conceded it should not have charged him during his military absence, which amounted 

to $1,453.37. 

 In view of those concessions by the Postal Service, the only remaining issue 

before the Board was Mr. Smith’s contention that he was entitled to out-of-schedule 

premium pay for the time he had worked irregular hours as a part-time employee 

following his return from the military. During the seven and one-half months between 

the time of his return and the time he was placed into the full-time custodian position, 

Mr. Smith was working in a part-time position with a schedule that alternated between 

the Tour 1 shift (11:00 p.m. to 6:30 a.m.) and the Tour 3 shift (4:30 p.m. to 1:00 a.m.). 

During that period, Mr. Smith argues, he should have been assigned to Tour 2, which 

would have been the case if he had been put in the custodian position immediately 

upon his return from military service. According to Mr. Smith, compensation for working 

irregular tours was required under the Postal Service’s Employee Labor Relations 

Manual and was necessary to redress the inconvenience he suffered by having to work 

the erratic hours and multiple shifts that he would not have worked if he had been 

reemployed in the proper position at the outset. 

The Board rejected his argument. It concluded that he was not entitled to out-ofschedule premium pay while he was employed as a part-time clerk, because only fulltime employees were eligible for out-of-schedule premium pay. The Board also 

determined that because no full-time custodians in the East Texas Processing and 

Distribution Center received out-of-schedule premium pay for the period during which 
2007-3238 4 

Mr. Smith was improperly assigned to part-time work as a clerk, the Postal Service’s 

retroactive compensation did not need to be adjusted to include an amount representing 

out-of-schedule premium pay. Mr. Smith now petitions for review by this court. 

II 

USERRA represents Congress’s most recent effort to create a comprehensive 

statutory scheme to provide civilian reemployment rights for those who serve in the 

armed forces in order “to encourage noncareer service in the uniformed services by 

eliminating or minimizing the disadvantages to civilian careers and employment which 

can result from such service.” 38 U.S.C. 4301(a). The Act also aims “to minimize the 

disruption to the lives of persons performing service,” and “to prohibit discrimination 

against persons because of their service.” Id. USERRA was enacted specifically to 

“restructure, clarify, and improve” the prior reemployment benefits statutes. S. Rep. No. 

102-203, at 27 (1991). While Congress intended to expand and clarify the prior 

statutes, the legislative history stated that the “extensive body of case law” under the 

predecessor statutes “would remain in full force and effect to the extent consistent” with 

USERRA. Id. at 31. 

Under USERRA, Mr. Smith was entitled to be reemployed in a position of “like 

seniority, status and pay.” 38 U.S.C. § 4313(a)(2)(A). Implementing regulations define 

“status” to include “opportunities for advancement, general working conditions, job 

location, shift assignment, rank responsibility, and geographical location.” 20 C.F.R. 

§ 1002.193 (emphasis added). Case law establishes that “shift assignment” and regular 

hours are benefits of employment. See Hill v. Michelin N. Am., Inc., 252 F.3d 307, 313 

(4th Cir. 2001) (“we believe that the Q-Laboratory's more regular schedule is properly 
2007-3238 5 

viewed as an advantage of the job under USERRA's definition of ‘benefit of 

employment.’”); Allen v. United States Postal Serv., 142 F.3d 1444, 1447 (Fed. Cir. 

1998) (stating that “daytime hours,” which “most workers consider desirable” are an 

“incident or advantage of employment.”); Carlson v. N.H. Dep’t of Safety, 609 F.2d 

1024, 1027 (1st Cir. 1979) (“We cannot say that the transfer, due to plaintiff’s reserve 

training, from a basically 8 to 5 weekday job to one with weekend work and shifts which 

may fall during any hour of the day or night is not a denial of an incident or advantage of 

employment”). In the event that an agency does not comply with its obligations under 

USERRA, the Board is required “to compensate such person for any loss of wages or 

benefits suffered by such person by reason of such lack of compliance.” 38 U.S.C. § 

4324(c)(2). 

 The Postal Service contends that the Board correctly held that Mr. Smith would 

be entitled to compensation only if other employees in the East Texas Processing and 

Distribution Center who held the full-time custodian position worked irregular shifts 

during the period that Mr. Smith was in his part-time position. Because the evidence 

indicated that none of those employees worked irregular shifts during that time, and 

thus none earned premium pay for working irregular shifts, the Postal Service argues 

that Mr. Smith is likewise not entitled to any award of premium pay. 

 That argument misses the point. The employees in the full-time custodian 

positions enjoyed a benefit that Mr. Smith did not—a regular tour of duty. With respect 

to that benefit, Mr. Smith was worse off than the employees in the full-time custodian 

positions. The applicable regulations, binding on the Postal Service, define “status” for 

USERRA purposes to include “shift assignment,” indicating that a favorable shift 
2007-3238 6 

assignment is a benefit, and section 4324(c)(2) of USERRA directs that loss of benefits 

must be compensated. 

Similar compensation has been provided under other federal labor laws providing 

relief for discrimination. Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 462 (7th 

Cir. 2006) (where employee earned more money by working longer hours at a lower 

rate at his post-termination job, the backpay award under 46 U.S.C. § 2114 was 

properly adjusted to account for the number of hours he would have worked in his 

original job); Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1111 (8th Cir. 1994) 

(compensation awarded for “job search” expenses under the Age Discrimination in 

Employment Act, 29 U.S.C. § 621 et seq.); F.E. Hazard, Ltd. v. NLRB, 917 F.2d 736, 

738 (2d Cir. 1990) (compensation awarded for ordinary and necessary business 

expenses incurred during period of interim earnings under National Labor Relations Act, 

29 U.S.C. § 158(a)(1), (3), (4)). Similar compensation has also been awarded under the 

predecessor compensation statute to USERRA, which used virtually identical language. 

Eidukonis v. Se. Pa. Transp. Auth., 757 F. Supp. 634, 640 (E.D. Pa. 1991), aff’d, 944 

F.2d 896 (3d Cir. 1991) (table) (compensation awarded for out-of-pocket medical 

expenses under 38 U.S.C. § 2022). 

The fact that none of the custodians in the East Texas Processing and 

Distribution Center during the period in question received out-of-schedule premium pay 

is irrelevant. Unlike the full-time custodians, Mr. Smith worked irregular shifts without 

compensation and thus did not enjoy the benefit that they enjoyed (and that he would 

have enjoyed if he had been placed directly into the custodian position). The 

deprivation of that benefit is compensable as a loss of a “shift assignment” benefit. 
2007-3238 7 

 

What remains unresolved is how to calculate the value of the lost benefit. Mr. 

Smith relies on section 434.612(a) of the Postal Service’s Employee Labor Relations 

Manual, which provides that eligible workers are entitled to premium pay if they work 

hours outside of their normal shift, provided they have been given notice of the schedule 

change at least a week in advance.1

 According to Mr. Smith, he should receive 

premium pay for any time worked outside of his current Tour 2 shift. Because Mr. 

Smith’s schedule rotated between Tours 1 and 3, his proposed calculation would mean 

that he would receive premium pay for all the hours he worked in the temporary clerk 

position. Mr. Smith’s analysis, however, fails to account for the fact that, as the Postal 

Service notes, Mr. Smith was only entitled to work a regular schedule; he was not 

entitled to work any particular regular schedule. Because it appears Mr. Smith worked 

two separate shifts on a rotating basis as a part-time employee, it would seem that only 

one of those shifts would be considered “out-of-schedule.” As for the valuation of the 

time that Mr. Smith worked out of schedule, the out-of-schedule premium pay is the 

amount that the Postal Service pays to persons who are required to work out-ofschedule shifts. For that reason, treating one of his shifts as his primary, normal shift 

and the other as the out-of-schedule shift would appear to be a reasonable basis for 

valuing the benefit that Mr. Smith lost. However, there may be other factors bearing on 

1

 In passing, the government notes that full-time employees are required to 

work irregular shifts only if they are given timely notice by management of a temporary 

schedule change and argues that because Mr. Smith was not given such notice, he is 

not entitled to premium pay for out-of-schedule work. Mr. Smith, however, is not directly 

seeking pay for his out-of-schedule work, but is seeking compensation for a lost benefit. 

The “notice” requirement serves as an additional benefit to full-time employees by 

ensuring that they will not be required to work different schedules unless given advance 
2007-3238 8 

the proper analysis of the amount owed to Mr. Smith, and we leave it to the Board to 

determine in the first instance the proper compensation for the loss of the benefit to 

which he was entitled. 

VACATED and REMANDED. 

 

notice of the requirement. Thus, the “notice” provision does not in any way undermine 

Mr. Smith’s argument that he was denied a benefit to which he was legally entitled.