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O'Farrell v. Department of Defense

United States Court of Appeals, Federal Circuit

February 9, 2018

MICHAEL J. O'FARRELL, JR., Petitioner
v.
DEPARTMENT OF DEFENSE, Respondent

         Petition for review of the Merit Systems Protection Board in No. DE-4324-14-0013-I-1.

          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 ...


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