In a precedent-setting case for reservists, an Army Reserve officer has won a victory over a federal agency that allegedly violated his re-employment rights — even though he was not technically a federal employee.

Brig. Gen. Michael Silva alleged that a federal agency interfered with his ability to return to his job with a private contractor, and thus violated his rights under the Uniformed Services Employment and Reemployment Rights Act.

Silva, commander of the 411th Engineer Brigade, returned from Iraq in August 2007, after being mobilized for more than a year and sought reinstatement to his civilian job with SPS Consulting, a government contractor.

But company officials told him the Homeland Security Department's Customs and Border Protection had disapproved his reemployment and would "cancel the contract" if he was reinstated, according to the ruling by the federal Merit Systems Protection Board.

"It's unfortunate," Silva said. "One hand of the government sends troops off to war and the other precludes their rehire.

"It got to the point where I wasn't doing this for me," he said. "I was pursuing it because … as a leader in the Army, it wouldn't be right for me to tell soldiers about their rights under USERRA, and then as soon as my rights were violated, just walk away."

The unanswered question in the case is why Customs and Border Protection had issues with Silva's reinstatement. At press time, DHS officials and attorneys had not responded to multiple requests for comment.

Silva filed his complaint in September 2007. The U.S. Office of Special Counsel, which represents federal and U.S. Postal Service employees in USERRA cases, investigated Silva's complaint and agreed to represent him.

An administrative judge dismissed Silva's case for lack of jurisdiction, agreeing with DHS that Silva did not hold a civil service appointment at the time he was mobilized and thus was not a federal employee.

But on appeal, the Merit Systems Protection Board voided that decision and remanded it for further review. In a Sept. 23 ruling, the board's chairman, Neil McPhie, said that if DHS exercised direct control over SPS Consulting to such an extent that it effectively prevented Silva's reemployment, then DHS should be considered his employer under USERRA.

Silva, who sought back pay and other benefits, negotiated a settlement with DHS, according to a Dec. 14 announcement by the Office of Special Counsel. Both sides agreed that details would remain confidential.

Prior to Silva's case, the MSPB had never dealt with the issue of whether the federal government could be held liable by a contract employee for USERRA violations, said Patrick Boulay, chief of the USERRA unit in the U.S. Office of Special Counsel.

SPS Consulting was not directly involved in the case. The Merit Systems Protection Board and Office of Special Counsel have no jurisdiction over private-sector companies.

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