O’Farrell v. Department of Defense
882 F.3d 1080 (Fed. Cir. 2018)
Authored by Christopher Paul
Statement of Facts: Petitioner Michael J. O’Farrell (hereinafter “O’Farrell”) has served in the U.S. Army for 28 years and was transferred to the U.S. Army Reserve Retired List in October 2013. During O’Farrell’s service in the Army, on September 11, 2012, President Barack Obama continued, for one year, the national emergency regarding the terrorist attacks of September 11, 2001.
On April 17, 2013, O’Farrell received an order from the U.S. Army to replace a civilian attorney employed with the U.S. Navy’s Naval Surface Warfare Center (“NSWC”). The Order called him “to active duty for operational support under provision of [10 U.S.C. §] 12301(d),” O’Farrell v. Department of Defense, 882 F.3d 1080, 1082, which was to include “serv[ic]e as[] legal counsel.” Id.
O’Farrell served for 162 days until September 30, 2013. By August 26, O’Farrell had used his fifteen days of military leave pursuant to § 6323(a)(1) and most of his accrued annual leave and advanced leave. O’Farrell requested an additional twenty-two days of leave pursuant to § 6323(b), which entitles an employee of the Reserves who “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] . . . ” § 6323(b), to avoid being placed on Military Leave Without Pay for the rest of his active duty service, even though his order did not specifically cite any of the statutory provisions listed in § 101(a)(13) that qualify for support for a contingency operation. Instead, O’Farrell contended in his request that he was “serving under ‘any other provision of law . . . during a national emergency declared by the President or Congress.” 10 U.S.C. § 101(a)(13).
The Defense Logistics Agency (“DLA”) denied O’Farrell’s request, because the order did not state that O’Farrell was under contingency orders. O’Farrell then submitted a request for leave at the Office of Personnel Management (“OPM”). DLA denied this request, stating that O’Farrell’s active duty is not in support of a contingency operation. The Merit Systems Protection Board (“MSPB”) issued a decision denying O’Farrell’s claim that the Government failed to grant him his leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) and dismissed his appeal.
Procedural History: DLA denied O’Farrell’s initial request for additional leave via email. O’Farrell submitted a request to OPM which was also denied. O’Farrell appealed to the MSPB, where an administrative judge issued an initial decision denying his claim and dismissing his appeal. The full MSPB issued an order stating that the two MSPB members could not agree on the disposition of the petition for review, so the initial decision was to become final. O’Farrell appealed to the Federal Circuit, which reversed the MSPB’s decision.
Questions Presented: (1) Whether the MSPB abused its discretion in denying O’Farrell’s request for twenty-two days of additional military leave; (2) Whether the provision of law pursuant to which O’Farrell was called to active duty qualifies as a “contingency operation,” as defined by § 101(a)(13); (3) Whether O’Farrell’s active duty qualifies as “support” of such contingency operation; and (4) Whether O’Farrell’s request for additional leave needed to identify a specific contingency operation.
Holdings: Judge Wallach, joined by Judges Dyk and Moore, reversed the MSPB’s decision to deny O’Farrell’s request for additional military leave by finding:
(1) The MSBP abused its discretion by basing its decision on an erroneous interpretation of § 6323(b).
(2) Any military operation that results in service members being called to active duty under any provision of law during a declared national emergency qualifies as a “contingency operation” under § 101(a)(13). The armed forces are engaged in a military operation in Afghanistan in conjunction with a national emergency declared by the President.
(3) Indirect support of a contingency operation qualifies as “support.” O’Farrell replacing a NSWC attorney who directly supported the contingency operation through his deployment to Afghanistan, along with O’Farrell providing assistance to the Navy’s warfighting capabilities, and the Order calling O’Farrell to active duty, states that he will provide “operational support, all show that O’Farrell’s activities qualify as “support.”
(4) The service member’s request need not identify a specific contingency operation or use any particular language or take any particular form. The relevant inquiry is not whether O’Farrell identified a specific contingency operation that his active duty supported, but whether he was called to active duty in support of a contingency operation.
Reasoning: The Federal Circuit held that application of an erroneous interpretation of a statute qualified as an abuse of discretion, allowing them to reverse the MSPB’s decision.
The MSPB determined that § 6323(b) required 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).” 882 F.3d. 1080, 1083.
The court read the plain language of § 101(a)(13), which defines “contingency operation” for § 6323(b) purposes as needing to be a “military operation” and contains a list of qualifying military operations, and determined that the list is not exhaustive, as § 101(a)(13)(B) includes “or any other provision of law . . . during a national emergency declared by the President.” § 101(a)(13)(B) (emphasis added). Therefore, a provision of law not being included in the list does not preclude it from being counted as a contingency operation.
Since the statute does not specify what specific types of support qualify, the court then determined from the plain language of § 6323(b) that the word “support” should be broadly read in its “ordinary, contemporary, common meaning,” Sandifer v. U.S. Steep Corp., 134 S. Ct. 870, 876 (2014) to encompass acts that provide “assistance or backing.” Support, The Oxford English Dictionary (3d ed. 2012).
The court then considered the overall statutory scheme of Title 5 of the U.S. Code. The subpart involving Pay Allowances stipulates that service members must have provided direct support for a contingency operation to qualify for certain benefits. Since Congress required direct support in this provision and failed to include the direct requirement in § 6323, the court determined that Congress acted “intentionally and purposely in the disparate inclusion or exclusion.” See Sebelius v. Cloer, 569 U.S. 369, 378 (2013).
The court reasoned that the regulatory scheme, particularly 5 C.F.R. § 353.208 suggests that a service member need not identify a specific contingency operation when requesting additional leave. That regulation states that a service member “must be permitted, upon request, to use any . . . military leave under . . . 5 U.S.C. [§] 6323.” 5 C.F.R. § 353.208 (2016) (emphasis added).
Finally, the court reasoned that the legislative history of § 6323 and § 101(a)(13) suggests that Congress intended to provide additional leave for service members in a broad fashion. Congress continually amended these provisions to provide for more and more service members to receive more compensation. In doing this, Congress was motivated by concerns of substantial hardship being faced by certain excluded service members, see, e.g., S. Rep. No. 90-1443, at 4289 (1968); 149 Cong. Rec. S12,582 (daily ed. Oct. 15, 2003); Pub L. No. 102-190, § 555(a)(1).