MICHAEL J. O'FARRELL, JR., Petitioner
DEPARTMENT OF DEFENSE, Respondent
for review of the Merit Systems Protection Board in No.
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.
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.
Dyk, Moore, and Wallach, Circuit Judges.
Wallach, Circuit Judge.
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)). 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).
O'Farrell appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2012). We reverse.
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
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 ...