O'Farrell v. Dep't of Def.

• Decision Date: 09 February 2018
• Docket Number: 2017-1223
• Citation: 882 F.3d 1080
• Parties: Michael J. O'FARRELL, Jr., Petitioner v. DEPARTMENT OF DEFENSE, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

882 F.3d 1080

Michael J. O'FARRELL, Jr., Petitioner

v.DEPARTMENT OF DEFENSE, Respondent

2017-1223

United States Court of Appeals, Federal Circuit.

Decided: February 9, 2018

Daniel Craig Cooley, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Reston, VA, argued for petitioner. Also represented by J. Derek McCorquindale ; Sydney Kestle, Jason Lee Romrell, Washington, DC.

Joseph Ashman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle.

Before Dyk, Moore, and Wallach, Circuit Judges.

Wallach, Circuit Judge.

Petitioner Michael J. O'Farrell, Jr. appealed to the Merit Systems Protection Board ("MSPB"), alleging, inter alia, that his employing agency, the U.S. Department of Defense ("DOD" or "Government") failed to grant him military leave for active military service in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), Pub. L. No. 103-353, 108 Stat. 3149 (codified as amended at 38 U.S.C. §§ 4301 – 4333 (2012) ).¹ An administrative judge ("AJ") issued an initial decision denying Mr. O'Farrell's claim and dismissing his appeal. See O'Farrell v. Dep't of Def. (O'Farrell I ), No. DE-4324-14-0013-I-1, 2016 WL 1014371 (M.S.P.B. Mar. 8, 2016) (J.A. 4–14). On review, the full MSPB issued an order stating that "[t]he two [MSPB] members cannot agree on the disposition of the petition for review," such that O'Farrell I "now becomes the final decision of the [MSPB] in this appeal." O'Farrell v. Dep't of Def. (O'Farrell II ), 123 M.S.P.R. 590, 591 (2016) (footnote omitted).²

Mr. O'Farrell appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We reverse.

BACKGROUND

I. Statutory Framework

When certain reserve military personnel who are employed by the Government are called to active duty, they are "entitled to leave without loss in pay, time, or performance or efficiency rating" that "accrues ... at the rate of [fifteen] days per fiscal year." 5 U.S.C. § 6323(a)(1) (2012). In addition to these fifteen days,

an employee ... who—(1) is a member of a Reserve component of the Armed Forces ... ; and (2) ... (B) performs full-time military service as a result of a call or order to active duty in support of a contingency operation as defined in [ 10 U.S.C. § ] 101(a)(13) [ (2012) ] ...; is entitled ... to leave without loss of, or reduction in, pay, leave to which he otherwise is entitled, credit for time or service, or performance or efficiency rating ... [that] shall not exceed [twenty-two] workdays in a calendar year.

Id. § 6323(b) (emphasis added). In turn, "contingency operation" is defined to include:

a military operation that ... (B) results in the call or order to, or retention on, active duty of members of the uniformed services under [ 10 U.S.C. §§] 688, 12301(a), 12302, 12304, 12304a, 12305, or 12406..., [10 U.S.C.] ch[.] 15 ..., [ 14 U.S.C. §] 712..., or any other provision of law ... during a national emergency declared by the President or Congress.

10 U.S.C. § 101(a)(13) (emphasis added). Military reserve personnel "call[ed] or order[ed] to active duty under a provision of law referred to in [§] 101(a)(13)(B) ... shall be entitled ... to receive" payment commensurate with the difference between the civilian pay they would have received and their military pay for their period of active duty service. 5 U.S.C. § 5538(a).

II. Factual Background and Procedural History

Mr. O'Farrell served in the U.S. Army for twentyeight years.³ J.A. 174. During Mr. O'Farrell's service, on September 11, 2012, President Barack Obama published a notice in the Federal Register "continuing for [one] year the national emergency ... with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States." Continuation of the National Emergency with Respect to Certain Terrorist Attacks, 77 Fed. Reg. 56,517, 56,517 (Sept. 11, 2012). At the time, Mr. O'Farrell worked as a General Attorney in the Office of Counsel for the aviation subordinate command of the Defense Logistics Agency ("DLA") within DOD. J.A. 174. However, on April 17, 2013, Mr. O'Farrell received an order from the U.S. Army directing him to replace a civilian attorney employed with the U.S. Navy's Naval Surface Warfare Center ("NSWC"), Corona Division, in California. J.A. 114; see J.A. 175. The NSWC attorney, who also was a member of the U.S. Army Reserve, was replaced because he had been deployed to Afghanistan. J.A. 175. The Order directing Mr. O'Farrell provided:

You are ordered to active duty for operational support under provision of [ 10 U.S.C. § ] 12301 (d) ... for the period shown plus the time necessary to travel. You will proceed from your home or current location in time to report for duty on [April 22, 2013]. Upon completion of this duty, unless sooner released, you will return to your home and upon arrival be released from active duty.

J.A. 114 (capitalization modified) (emphasis added). The Order further stated that Mr. O'Farrell's "operational support" would consist of his "serv[ic]e as[ ] legal counsel" at NSWC. J.A. 114 (capitalization omitted).

After receiving the Order, Mr. O'Farrell served his active duty as legal counsel at NSWC for a total of 162 days until September 30, 2013. J.A. 174. The parties do not dispute that, by August 26, 2013, Mr. O'Farrell had used his fifteen days of military leave pursuant to § 6323(a)(1), as well as most of his accrued annual leave and advance annual leave. See J.A. 5–6. To avoid being placed on Military Leave Without Pay for the remainder of his active duty service, Mr. O'Farrell requested an additional twenty-two days leave pursuant to § 6323(b) in an email exchange with a representative at DLA. See J.A. 102–13. Although Mr. O'Farrell acknowledged that the Order did not cite any of the statutory provisions listed in § 101(a)(13) that qualify as support for a contingency operation, he explained that he was "serving under ‘any other provision of law ... during a national emergency declared by the President or Congress,’ ... because ... [§] 12301(d) is ‘any other provision of law’ and[,] on September 11, 2012[,] President Obama extended the state of emergency that has existed since September 11, 2001." J.A. 104 (quoting 10 U.S.C. § 101(a)(13) ). DLA informed Mr. O'Farrell by email that he was not entitled to additional military leave pursuant to § 6323(b) because the Order "do[es] not state [that Mr. O'Farrell was] under contingency orders." J.A. 102. Subsequently, Mr. O'Farrell submitted an Office of Personnel Management ("OPM") Form 71, Request for Leave or Approved Absence, "[r]equest[ing] approval and use of [twenty-two] days ... of additional military leave under provisions of ... [§] 6323(b)." J.A. 100. DLA denied his request, stating that Mr. O'Farrell's "active duty is not in support of a contingency operation." J.A. 96; see J.A. 94–99.

DISCUSSION

This appeal concerns whether, under the proper statutory construction of § 6323(b), the MSPB erred in denying Mr. O'Farrell's request for twenty-two days of additional military leave. See Pet'r's Br. 14; Resp't's Br. 1. After articulating the applicable standard of review, we first assess whether the MSPB properly construed § 6323(b) and then assess whether Mr. O'Farrell is entitled to additional leave under the proper construction.

I. Standard of Review

We affirm an MSPB decision unless, inter alia, it constitutes "an abuse of discretion." 5 U.S.C. § 7703(c)(1). "The MSPB abuses its discretion when the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors." Tartaglia v. Dep't of Veterans Affairs , 858 F.3d 1405, 1407–08 (Fed. Cir. 2017) (internal quotation marks and citation omitted). "We review the [MSPB]'s legal determinations, including its interpretation of a statute, de novo." Archuleta v. Hopper , 786 F.3d 1340, 1346 (Fed. Cir. 2015) (citation omitted).

II. The MSPB Misinterpreted 5 U.S.C. § 6323(b)

Without engaging in the appropriate statutory analysis, the MSPB summarily determined that § 6323(b) requires that "a specific contingency operation should be identified in military orders when an employee is activated under [§] 12301(d) in order for the employee to be entitled to [twenty-two] days of additional military leave under [§] 6323(b)." J.A. 8. The MSPB, however, failed to assess what qualifies as "support" or as a "contingency operation" under the relevant statutory provisions. Therefore, we interpret § 6323(b) and § 101(a)(13) to determine the meaning of these respective terms, as well as whether these statutes require that the order calling the service member to active duty must identify the specific contingency operation.

We begin our statutory interpretation with the plain language of § 6323(b). See BedRoc Ltd. v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). As an initial matter, the statute requires that the service member "perform[ ] full-time military service as a result of a call or order to active duty in support of a contingency operation." 5 U.S.C. § 6323(b)(2)(B) (emphasis added); it does not, however, specify the types of "support" that qualify. Therefore, we interpret "support" in accordance with its "ordinary, contemporary, common meaning," Sandifer v. U.S. Steel Corp. , ––– U.S. ––––, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014) (internal quotation marks and citation omitted), which broadly encompasses "an act of helping a person or thing to hold firm or not to give way; provision of assistance or backing," Support , The Oxford English Dictionary (3d ed. 2012) (emphasis added), available at http://www.oed.com/view/Entry/194673; see Support , The New Oxford American Dictionary (2005) ("To give assistance to, esp....