Colicelli v. Dep't of Veterans Affairs

• Docket Number: DC-4324-19-0769-M-1
• Decision Date: 22 August 2023
• Parties: MARCUS COLICELLI, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.
• Court: Merit Systems Protection Board

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MARCUS COLICELLI, Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS, Agency.

No. DC-4324-19-0769-M-1

United States of America Merit Systems Protection Board

August 22, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL^[1]

Brian J. Lawler, Esquire, San Diego, California, for the appellant.

Michael Potter, Esquire, Providence, Rhode Island, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the remand initial decision, which granted the appellant's request for corrective action in his Uniformed Services Employment and Reemployment Rights Act (USERRA) appeal. For the reasons discussed below, we GRANT the agency's petition for review, REVERSE

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the administrative judge's grant of corrective action in the form of 66 workdays of additional military leave, and DENY the appellant corrective action in that regard. We AFFIRM the remand initial decision regarding the administrative judge's denial of the agency's challenge to the separate grant of corrective action in Colicelli v. Department of Veterans Affairs, MSPB Docket No. DC-4324-19-0769-I-1, concerning the appellant's entitlement to differential pay.

BACKGROUND

¶2 At all relevant times, the appellant was an agency attorney who also served as a Judge Advocate in the U.S. Army Reserves. Colicelli v. Department of Veterans Affairs, MSPB Docket No. DC-4324-19-0769-I-1, Initial Appeal File (IAF), Tab 14 at 7, 20-21. From October 2016 to February 2017, he was ordered to active duty to attend military training for newly appointed Judge Advocates at Fort Benning, Georgia, and Charlottesville, Virginia. Id. at 5, 7, 20. From March to September 2018, he again was ordered to active duty, this time to serve as a Trial Defense Counsel at Fort Meade, Maryland. IAF, Tab 14 at 11, 20. The appellant served both periods under 10 U.S.C. § 12301(d), which provides for voluntary active duty of reservists. Id. at 5, 11; see Kluge v. Department of Homeland Security, 60 F.4th 1361, 1363 (Fed. Cir. 2023).

¶3 Based on his active duty service, the appellant requested the agency provide him differential pay under 5 U.S.C. § 5538(a)^[2] and 22 days of additional paid military leave under 5 U.S.C. § 6323(b) for each of calendar years 2016, 2017,

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and 2018.^[3] Colicelli v. Department of Veterans Affairs, MSPB Docket No. DC-4324-19-0769-M-1, Appeal File (M-1 AF), Tab 6 at 152, Tab 11. After the agency denied these requests, the appellant filed a Board appeal alleging that the denials violated USERRA, specifically 38 U.S.C. § 4311. IAF, Tab 1, Tab 14 at 17-18.

¶4 Following the appellant's withdrawal of his hearing request, the administrative judge issued an initial decision granting in part and denying in part the appellant's request for corrective action. IAF, Tab 21, Initial Decision (ID). Based on his interpretation of the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in O'Farrell v. Department of Defense, 882 F.3d 1080 (Fed. Cir. 2018), the administrative judge granted the appellant's request for differential pay, finding that he qualified for such pay because he was ordered to active duty to serve in a "contingency operation" as defined in 10 U.S.C. § 101(a)(13). ID at 7-12. The administrative judge then denied the appellant his request for additional military leave, finding that, although O'Farrell also supported that request, the appellant did not timely request such leave from the agency. ID at 4, 12-14. Neither party petitioned the Board for review of the initial decision, which thus became the Board's final decision. 5 C.F.R. § 1201.113.

¶5 The appellant appealed the initial decision to the Federal Circuit, to which he asserted that the agency failed to produce in its response to his appeal emails indicating that he timely requested additional military leave. Colicelli v. Department of Veterans Affairs, No. 2020-2048, 2021 WL 6112979 at *1-2 (Fed. Cir. Dec. 27, 2021) (per curiam). Based on this undisputed assertion, the Federal Circuit vacated the portion of the initial decision denying corrective action and remanded the case for the administrative judge to order the production of the

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appellant's requests for additional military leave and re-determine whether the appellant was entitled to relief. Id. at *2-3.

¶6 On remand, the parties stipulated that the appellant timely requested 22 days of additional paid military leave during each of calendar years 2016, 2017, and 2018. M-1 AF, Tab 11, Tab 12 at 7. After the appellant waived his right to a hearing on remand, M-1 AF, Tab 10 at 1, the administrative judge granted the appellant's request for 66 total workdays of additional military leave. M-1 AF, Tab 15, Remand Initial Decision (RID) at 4-5. This was in addition to the grant of differential pay in the previous initial decision, which the administrative judge observed was final and that the agency had paid the differential pay. RID at 5-6.

¶7 The agency filed a petition for review in which it argues, among other things, that the administrative judge misapplied O'Farrell and that the appellant was not ordered to serve "in support of a contingency operation" as required for additional military leave. Petition for Review (PFR) File, Tab 1 at 5, 8-18. The appellant filed a response, to which the agency replied. PFR File, Tabs 5-6.

ANALYSIS

The appellant was not entitled to additional military leave under 5 U.S.C. § 6323(b).

¶8 In relevant part, 38 U.S.C. § 4311 provides that a person who performs or has performed military service shall not be denied any benefit of employment on the basis of that service. When the benefit in question is only available to members of the military, an employee making a claim under 38 U.S.C. § 4311 is only required to show that he was denied that benefit. Adams v. Department of Homeland Security, 3 F.4th 1375, 1377-78 (Fed. Cir. 2021), cert. denied, 142 S.Ct. 2835 (2022).

¶9 Under 5 U.S.C. § 6323(a), Federal employees who perform certain types of reserve military duty are entitled to 15 days of paid military leave per fiscal year. In addition to these 15 days, 5 U.S.C. § 6323(b) provides in relevant part that an

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employee who, as a reservist in the armed forces, performs military service as a result of an order to active duty "in support of a contingency operation" as defined in 10 U.S.C. § 101(a)(13), is entitled, during and because of such service, to an additional 22 workdays of paid military leave per calendar year. In turn, 10 U.S.C. § 101(a)(13) defines "contingency operation," as relevant to this case, as a "military operation" that results in the order to active duty of members of the uniformed services under any law during a national emergency declared by the President.^[4]

¶10 The record establishes that, for both periods of active duty for which he claimed additional military leave, the appellant was a U.S. Army reservist ordered to active duty under a provision of law, 10 U.S.C. § 12301(d), during a national emergency declared by the President. 83 Fed.Reg. 46067 (Sept. 10, 2018); 82 Fed.Reg. 43153 (Sept. 11, 2017); 81 Fed.Reg. 60579 (Aug. 30, 2016); IAF, Tab 14 at 5, 11. At issue in this case is thus whether the appellant served on active duty "in support of" a "military operation" which resulted in his orders. We find that he did not.

¶11 In O'Farrell, 882 F.3d at 1082-83, 1087, the Federal Circuit held that a U.S. Army reservist ordered to active duty under 10 U.S.C. § 12301(d) to replace a civilian who had, in his own capacity as a U.S. Army reservist, deployed to Afghanistan, was entitled to additional military leave. The Federal Circuit explained that the phrase "in support of" a contingency operation in 5 U.S.C. § 6323(b) included indirect support, and that by replacing an employee who directly supported a contingency operation through his deployment to Afghanistan, the petitioner was called to active duty "in support of" a contingency operation. Id. at 1086-87.

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¶12 The Federal Circuit made two additional points in O'Farrell important to this case: (1) that the phrase "military operation," as part of the definition of "contingency operation" in 10 U.S.C. § 101(a)(13), "[a]t the very least . . . includes engagement in open hostilities against the nation's enemies"; and (2) that its holding "[did] not mean that all reservists called to active duty during a national...