Woodman v. Office of Personnel Management

• Decision Date: 27 July 2001
• Docket Number: No. 00-3414,00-3414
• Citation: 258 F.3d 1372
• Parties: (Fed. Cir. 2001) WILLIAM E. WOODMAN, PETITIONER, v. OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT
• Court: U.S. Court of Appeals — Federal Circuit

Page 1372

258 F.3d 1372 (Fed. Cir. 2001)

WILLIAM E. WOODMAN, PETITIONER, v. OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.

No. 00-3414

United States Court of Appeals for the Federal Circuit

July 27, 2001

Appealed from: Merit Systems Protection Board

Jason M. Weinstock, Ira H. Weinstock, P.C., of Harrisburg, Pennsylvania, argued for petitioner.

Marian E. Sullivan, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David M. Cohen, Director; and Robert E. Kirschman, Assistant Director. Of counsel on the brief was Eric S. Gold, Office of General Counsel, Office of Personnel Management, of Washington, DC.

Before Clevenger, Schall, and Bryson, Circuit Judges.

Schall, Circuit Judge.

William E. Woodman petitions for review of the final decision of the Merit Systems Protection Board ("Board") that denied his appeal of the decision of the Office of Personnel Management ("OPM") that found him ineligible for reemployment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103-353, 108 Stat. 3149 (codified as amended at 38 U.S.C. §§§§ 4301-4333 (1994 & Supp. II 1996)) ("USERRA"). We affirm.

BACKGROUND

Mr. Woodman joined the federal civilian workforce as a National Guard Technician ("NGT") with the Pennsylvania National Guard ("PNG") in July of 1976. Prior to that time, he had completed six years of active duty military service. Five years later, in July of 1981, Mr. Woodman left civilian service as an NGT and voluntarily accepted an appointment to a two-year tour of duty as a member of the Active Guard Reserve ("AGR") with the PNG. Mr. Woodman's appointment was pursuant to 32 U.S.C. §§ 502(f) (1994). ¹ He entered the AGR at the rank of Major. In June of 1983, Mr. Woodman agreed to an extension of his AGR tour of duty until May 31, 1986, another three years. In April of 1986, he again extended his AGR tour of duty, this time until September 30, 1990. Finally, in 1990, he agreed to extend his AGR tour of duty indefinitely. On February 1, 1995, the Adjutant General of Pennsylvania notified Mr. Woodman that he would be involuntarily separated from his AGR position effective June 30, 1995, because as of that date he would have completed 20 years of active duty service. ² On June 30, 1995, Mr. Woodman was separated from the AGR and retired from the military at the rank of Lieutenant Colonel. Since that date, he has been receiving retirement benefits as a retired military officer.

On May 30, 1995, Mr. Woodman filed a written request with the Adjutant General seeking to exercise reemployment rights under USERRA as an NGT. On June 8, 1995, the Adjutant General denied Mr. Woodman's request, finding that reemployment would be impossible and unreasonable because of his military retirement status. On November 1, 1995, Mr. Woodman attempted to invoke reemployment rights under USERRA by requesting that OPM place him in a position comparable to his NGT position in another federal agency, in accordance with 38 U.S.C. §§ 4314(d) (1994). OPM denied Mr. Woodman's request in a letter dated January 29, 1996, stating that he was not eligible for mandatory placement under §§ 4314(d) because he was a career member of the military.

In due course, Mr. Woodman requested assistance from the Department of Labor's Veterans Employment and Training Services ("VETS"), pursuant to 38 U.S.C. §§ 4321 (1994) and 5 C.F.R. §§ 353.210 (1997), which provide for VETS assistance with respect to employment and reemployment rights for any veteran who requests assistance. Pursuant to 38 U.S.C. §§ 4322(a)(2)(B) (1994), VETS filed a complaint against OPM with the Office of Special Counsel ("OSC"). Pursuant to 38 U.S.C. §§ 4324(a)(2)(A) (1994), OSC is authorized to provide legal representation to a person seeking federal reemployment under USERRA if it determines that OPM erred in denying the person reemployment rights.

On May 29, 1998, OSC notified OPM that it was contemplating legal action before the Board in Mr. Woodman's case, and it invited OPM to supply it with an opinion on the matter. In response, OPM provided its analysis of the situation, explaining that it did not believe that Mr. Woodman qualified for reemployment under USERRA because of his career in the military. OPM stated that Mr. Woodman's voluntary acceptance of continuous and successive AGR tours of duty, as well as his voluntary retirement from the military, established a career in the uniformed service, disqualifying him for reemployment rights under USERRA. Following review of OPM's response, OSC concluded that Mr. Woodman had abandoned his civilian position in favor of a career in the military, thereby waiving his right to reemployment in the federal civilian workforce. Therefore, on November 6, 1998, OSC informed Mr. Woodman that it would not prosecute his case before the Board. Following receipt of OSC's letter, Mr. Woodman timely appealed to the Board without VETS' assistance, pursuant to 38 U.S.C. §§ 4324(b)(4) (1994) ("A person may submit a complaint against a Federal executive agency or the Office of Personnel Management under this subchapter directly to the Merit Systems Protection Board if that person has received a notification of a decision from the Special Counsel [declining representation].").

Following a hearing, the administrative judge to whom the appeal was assigned issued an initial decision sustaining OPM's denial of Mr. Woodman's USERRA claim. Woodman v. Office of Pers. Mgmt., PH-3443-99-0075-I-1 (M.S.P.B. May 28, 1999). The administrative judge determined that Mr. Woodman's entitlement to reemployment rights under USERRA depended upon whether his 14 years of AGR duty constituted career or non-career military service. The administrative judge denied Mr. Woodman's appeal because she concluded that "the record as a whole supports a conclusion that the appellant's service was career service and his arguments to the contrary are not persuasive." Woodman, slip op. at 11. The administrative judge's initial decision became the final decision of the Board on June 30, 2000, when the full Board denied Mr. Woodman's petition for a hearing for failure to meet the criteria for review set forth in 5 C.F.R. §§ 1201.115(d) (1999). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. §§ 1295(a)(9) (1994).

DISCUSSION

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. §§ 7703(c) (1994); Fernandez v. Dep't of the Army, 234 F.3d 553, 555 (Fed. Cir. 2000).

I.

Prior to 1994, reemployment rights for veterans were set forth in the provisions of the Veterans' Reemployment Rights Act of 1974, Pub. L. No. 93-508, 88 Stat. 1578 (codified as amended at 38 U.S.C. §§§§ 2021-2027 (1988 & Supp. III 1991)) ("VRRA"). ³ See H.R. Rep. No. 103-65, 103rd. Cong. 2d Sess. 18, reprinted in 1994 U.S.C.C.A.N. 2449, 2451. VRRA ensured that a person desiring to perform military service shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee's release from . . . [duty], such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes.

38 U.S.C. §§ 2024(d) (1988). When considering USERRA, Congress stated that VRRA "safeguard[ed] employment and reemployment rights in civilian employment of members of the uniformed services." H.R. Rep. No. 103-65 at 18, 1994 U.S.C.C.A.N. at 2451.

In 1990, Congress initiated a review of the efficacy of VRRA. In light of its review, Congress enacted USERRA "to clarify, simplify, and where necessary, strengthen the existing veterans' employment and reemployment rights." H.R. Rep. No. 103-65 at 18, 1994 U.S.C.C.A.N. at 2451. Congress stated that revisions of VRRA were necessary because "[a]lthough the law has effectively served the interests of veterans, members of the Reserve Components, the Armed Forces and employees, the current statute is complex and sometimes ambiguous, thereby allowing for misinterpretations." Id. The purposes of USERRA are set forth in 38 U.S.C. §§ 4301:

(a) The purposes of this chapter are -

(1) 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;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) to prohibit discrimination against persons because of their service in the uniformed services.

(b) It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter.

38 U.S.C. §§ 4301 (1994). USERRA is intended to apply to those serving on active duty and active duty for training. It also covers full-time National Guard duty. See 38 U.S.C. §§§§ 4303(13), (16) (1994).

Reemployment rights under USERRA are available for any person who can meet the criteria of §§ 4312(a):

[A]ny person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if -

I. the person (or an appropriate officer of the uniformed service in which such...