Petition for Writ of Certiorari — Michael Faris, Petitioner v. Department of the Air Force

Supreme Court briefJan 23, 2023

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31n tfje Supreme Court of tfje Sfuttcb States!

MICHAEL G. FARIS,

Petitioner

UNITED STATES AIR FORCE,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Appendix to Petition for Writ of Certorari

MICHAEL G. FARIS

Pro Se

2167 County Road 57

Prattville, AL 36067

(907) 782-7797

Appendix Table of Contents

Faris v. Air Force (MSPB, 1 Feb 2022) Decision

App. 1

Faris v. Air Force (CAFC, 22 Sep 2022) Decision

App. 21

Faris CAFC Rehearing Denial (9 Nov 2022)..............

.App. 30

Statutes and Regulations..............................................

.App.32

Faris v. Air Force (CAFC, 22 Sep 2022) Initial Brief.

.App. 41

Faris v. Air Force (CAFC, 22 Sep 2022) Reply Brief.

.App. 71

Emails to VETS Office Investigator

.App. 86

VETS Investigation Closing Letter.

.App. 88

OPM Letter to Sen. Sullivan

.App. 90

OPM BAL 95-101 Opening Letter

..App. 92

Military Service Deposit Charges.....

.App. 94

MSPB Notice of Proof Requirements

.App. 98

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

MICHAEL G. FARIS,

Appellant,

DOCKET NUMBER

SF-4324-21-03 70-1-1

DEPARTMENT OF THE AIR FORCE,

Agency,

DATE: February 1, 2022

and

OFFICE OF PERSONNEL

MANAGEMENT

Intervenor.

Michael G. Faris, Anchorage, Alaska, pro se.

Bobbie Garrison. Joint Base Andrews, Maryland, for the agency.

Chief Labor Law. Joint Base Andrews, Maryland, for the agency.

Angeriia Johnson. Washington, DC, for the intervenor

BEFORE

Christoph Riddle

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant filed an appeal contending that the agency violated the

Uniformed Services Employment and Reemployment Rights Act (USERRA).

Initial Appeal File (IAF), Tab 1. The Board has jurisdiction over this appeal

App. 1

pursuant to 38 U.S.C. § 4324(b).

IAF, Tab 1 at 2.

The appellant waived his right to a hearing.

For the reasons set forth below, the appellant’s request for

corrective action is DENIED.

ANALYSIS AND FINDINGS

Background

The following facts are undisputed unless otherwise noted. At all relevant

times the appellant held civilian positions with the agency in Anchorage, Alaska.

IAF, Tab 1 at 1, 7-50.

During multiple periods between 2016 and 2020, the

appellant was absent from his civilian position in order to perform military

service. Id. at 13-48.

The appellant made deposits for periods of absence for

military service in order to receive credit under the Federal Employees

Retirement System (FERS). Id. at 59-62. However, the agency did not permit

the appellant to make a service deposit for inactive duty National Guard training.

Separately, according to the appellant, the agency discouraged him from delaying

his return to civilian employment after completing military service on or about

May 31,2018. IAF, Tab 10 at 10-11; Tab 27 at 21-22.

The appellant filed a complaint with the Department of Labor (DOL),

which DOL closed on July 8, 2020. IAF, Tab 1 at 63-68. This appeal followed.

I determined that the appellant made nonfrivolous allegations of Board

jurisdiction under USERRA as to some, but not all, of his asserted claims.1 IAF,

The appellant reasserts previously-made objections to my jurisdictional rulings in his

close of record submission. IAF, Tab 27 at 22. I note that the appellant failed to timely

object to my Order dated August 13, 2021, in which I ruled that the Board lacked

jurisdiction over two of the appellant’s claims. See IAF, Tab 13. He thus waived any

objection to those rulings. Id. at 3 (noting objections not filed by August 18, 2021,

would be deemed waived). The appellant timely objected to my jurisdictional Order of

September 3, 2021.

IAF, Tabs 20-22.

The appellant’s timely objections are

OVERRULED, but are preserved for the record.

App. 2

Tabs 9, 13, 20. The agency moved the Board to invite the Office of Personnel

Management (OPM) to intervene. IAF, Tab 11. I granted the agency’s motion.

IAF, Tab 12. OPM intervened but made no substantive submissions. IAF, Tab

18.

I set a close of record schedule, both parties made submissions, and the

record closed.

IAF, Tabs 14, 17, 21-23, 27.

Additional facts are discussed

below.

Issues

The issues for determination are whether the appellant has proved by

preponderant evidence that the agency violated USERRA by:

1. requiring that the appellant make deposits to receive credit under

Federal Employees Retirement Act (FERS) for periods that he was

absent from his civilian position to perform military duty;

2. denying the appellant the opportunity to make a service deposit under

FERS for inactive duty National Guard service between approximately

April 3 and 7, 2017; and

3. disallowing the appellant from delaying his return to duty following the

conclusion of military service on or about May 31, 2018, in violation of

38 U.S.C. § 4312(e)(1)(C).

Applicable Law

Generally, an employee making a USERRA claim under 38 U.S.C. § 4311

must show that (1) they performed, applied to perform, or was obligated to

perform duty in a uniformed service of the United States, (2) they were denied a

benefit of employment, and (2) the employee's military service was “a substantial

or motivating factor” in the denial of such a benefit. Sheehan v. Department of

the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (citation omitted). However,

when the benefit in question is only available to members of the military,

claimants do not need to show that their military service was a substantial or

motivating factor. Adams v. Department of Homeland Security, 3 F.4th 1375,

App. 3

1377-78 (Fed. Cir. 2021); see Butterbaugh v. Department of Justice, 336 F.3d

1332, 1336 (Fed. Cir. 2003) (“[W]e agree with the Board that, in contrast to cases

such as Sheehan ... the question in this case is not whether Petitioners’ military

status was a substantial or motivating factor in the agency's action, for agencies

only grant military leave to employees who are also military reservists.”); see

also Maiers v. Department of Health & Human Services, 524 F. App'x 618, 623

(Fed. Cir. 2013) (“In Butterbaugh, we determined that claimants need not show

that their military service was a substantial motivating factor when the benefits at

issue were only available to those in military service.”).

Here, there is no dispute that the appellant performed military service and

each of the appellant’s claims concern benefits only available to military

servicemembers. Under the appellant’s first two claims, civilian service credit

for periods of military duty is only available to members of the military.

Likewise, under the appellant’s third claim, the claimed right to delay return to

civilian duty after military service is exclusive to members of the military. Thus,

in each of his claims the appellant must establish that he was denied a benefit of

employment under 38 U.S.C. § 4311(a).

The agency did not violate USERRA by requiring the appellant to make deposits

to obtain FERS credit for periods of absence for military duty.

The appellant contends that the agency violated USERRA by requiring that

he make deposits to obtain credit under FERS for periods that he was absent from

his civilian position to perform military duty.

Ordinarily, an employee’s retirement contributions are funded through

deductions from his pay. 5 U.S.C. § 8422. No deductions are made when an

employee is in a nonpay status, such as military LWOP. The FERS statutes and

OPM’s implementing regulations require that an employee make a deposit in

order to obtain credit under FERS for periods when he was absent from his

App. 4

civilian position in a nonpay status to perform military service.2

5 U.S.C.

§ 8411(c)(1); 5 C.F.R. § 842.306(a)(2); see 5 U.S.C. §8422(e); 5 C.F.R.

§ 842.307.

38 U.S.C. § 4316(b)(1) provides that an employee absent from civilian

employment to perform military service is “deemed to be on furlough or leave of

absence while performing such service.” However, such an employee “shall not

be entitled under this subsection to any benefits to which the person would not

otherwise be entitled if the person had remained continuously employed” and

“may be required to pay the employee cost, if any, of any funded benefit

continued ... to the extent other employees on furlough or leave of absence are so

required.”

38 U.S.C. § 4316(b)(3-4).

Upon reemployment, an individual is

entitled to pension benefits only to the extent he makes employee contributions

that would otherwise be required had he remained continuously employed during

the relevant period. 38 U.S.C § 4318(b)(2).

The Board addressed the requirement to make deposit for periods of LWOP

for military service under USERRA in Whittacre v.

Office of Personnel

Management, 120 M.S.P.R. 114, 120 (2013). Whittacre retired from a civilian

position and began collecting an annuity under FERS.

Id. at 116.

OPM

subsequently determined it had erred in calculating Whittacre’s annuity and had

overpaid him by including periods when the appellant was absent from his

position for military service but had not made deposits. Id. Whittacre challenged

the overpayment arguing, inter alia, that under USERRA he was entitled to

service credit for his absences for military duty without making a deposit.

Whittacre v. Office of Personnel Management, MSPB Docket No. DC-0845-110740-1-1, Slip Op. at 3 (September 20, 2011). After reviewing the statutes cited

2 A deposit is not required for military service performed before January 1, 1957.

5 U.S.C. § 8411(c)(1); 5 C.F.R. § 842.306(a)(1). None of the military service at issue

here occurred prior to 1957.

App. 5

above, the Board held that “where, as here, military service interrupts civilian

service, a deposit not exceeding the amount that would have been deducted and

withheld from his basic pay had he remained in civilian service during the period

in question is required.”

Whittacre, 120 M.S.P.R at 120.

Thus, the Board

concluded that a deposit was required as set forth in 5 C.F.R. § 842.303(c) to

obtain credit for periods of LWOP for military service.

The appellant argued that Whittacre is inapplicable because the factual

circumstances were different and because it was not a USERRA appeal.

disagree. Although not a USERRA appeal but an overpayment case, the Board

squarely addressed the identical legal issue: whether, under USERRA, a deposit

is required to obtain service credit for periods of absence for military duty. The

Board answered this question in the affirmative and without exception. I do not

find that either the facts or the legal posture of Whittacre materially distinguish it

from the issue before me.

I have considered the appellant’s additional arguments, including his

contention that requiring a deposit subjects him to less favorable treatment than

an employee on LWOP for reasons other than military service.3 These arguments

3 A person reemployed following military service “may be required to pay the employee

cost, if any, of any funded benefit ... to the extent other employees on furlough or leave

of absence are so required.” 38 U.S.C. § 4316(b)(4). The appellant correctly notes that

a civilian employee in LWOP (or other nonpay) status for reasons other than military

service is entitled to service credit for up to six months per calendar year of LWOP

without making a deposit. See 5 U.S.C. § 8411(d); 5 C.F.R. § 842.304(a)(4); Bain v.

Office of Personnel Management, 978 F.2d 1227, 1230 (Fed. Cir. 1992); Office of

Personnel Management, “Fact Sheet: Effect of Extended Leave Without Pay (LWOP)

(or

Other

Nonpay

Status)

on Federal

Benefits

and

Programs,”

https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/factsheets/effect-of-extended-leave-without-pay-lwop-or-other-nonpay-status-on-federalbenefits-and-programs/. Though Whittacre did not explicitly address this putative

discrepancy, it did consider section 4316(b)(4) in holding a deposit is required. 120

M.S.P.R. at 120. 1 thus conclude that Whittacre’s holding forecloses me from reaching

a contrary conclusion. While I need not address the aptness of the appellant’s

comparison between nonmilitary and military LWOP in light of Whittacre’s controlling

precedent, 1 note that an employee absent because of military service is not necessarily

App. 6

are unavailing in light of the Board’s holding in Whittacre.4 I conclude, under

Whittacre, that the appellant is required to make a deposit to obtain civilian

service credit for periods of absence for military duty.

The appellant has not

established that the agency denied him a benefit of employment by requiring he

make such a deposit.

The appellant’s request for corrective action as to this

claim is DENIED.

The agency did not violate USERRA bv denying service credit for inactive

National Guard training duty.

The appellant claims that the agency violated USERRA by denying him the

opportunity to make a service deposit or otherwise awarding service credit under

FERS for military service from April 3 to 7, 2017.

IAF, Tab 27 at 20.

The

appellant performed inactive duty training with the National Guard during this

period. IAF, Tab 17 at 10-15; see IAF, Tab 10 at 10. The appellant correctly

notes that 5 U.S.C. § 8411 allows FERS credit for only certain types of military

service. Specifically, military service creditable under FERS is limited to “active

service” and

does not include service in the National Guard except when ordered

to active duty in the service of the United States or full-time

National Guard duty (as such term is defined in section 101(d) of

title 10) if such service interrupts creditable civilian service under

this subchapter and is followed by reemployment in accordance with

chapter 43 of title 38 that occurs on or after August 1, 1990.

5 U.S.C. § 8401(31); see 5 U.S.C. § 8411. 10 U.S.C. § 101(d)(5) in turn defines

“full-time National Guard duty” as

entitled to the most favorable treatment the agency provides to employees on leave; he

is only entitled to treatment commensurate with that provided to employees on

comparable leave. Tully v. Department of Justice, 481 F.3d 1367, 1369-1370 (Fed. Cir.

2007).

4 To the extent that the appellant contends that Whittacre was wrongly decided, I cannot

consider that argument here as I am bound by precedential decisions of the Board. The

appellant may raise such an argument on appeal.

App. 7

training or other duty, other than inactive duty, performed by a

member of the Army National Guard of the United States or the Air

National Guard of the United States in the member's status as a

member of the National Guard of a State or territory, the

Commonwealth of Puerto Rico, or the District of Columbia under

section 316, 502, 503, 504, or 505 of title 32 for which the member

is entitled to pay from the United States or for which the member has

waived pay from the United States.

10 U.S.C. § 101(d)(5). It is undisputed that the appellant’s period of inactive

National Guard duty is not creditable under the terms of 5 U.S.C. §§ 8401 and

8411.

The appellant contends that the agency violated USERRA by applying this

statutory scheme to his inactive duty service, disallowing him from making a

FERS deposit, and thereby barring him from receiving FERS credit for that fiveday period.

IAF, Tab 10 at 10; Tab 27 at 20-21.

The appellant argues that

38 U.S.C § 4318(a)(1)(A), which governs the pension rights of civilian

employees reemployed following military service, requires that his inactive duty

be creditable under FERS based on the broader definition of “service in the

uniformed services” in 38 U.S.C. § 4303(13).

See 38 U.S.C. § 4312(a).

Specifically, the definition in section 4303(13), unlike that in 5 U.S.C.

§ 8401(31), includes inactive duty training.

While it is true that the broader definition of “service in the uniformed

services” in section 4303(13) encompasses the appellant’s inactive duty service

between April 3 and 7, 2017, it does not follow that the appellant’s service is

creditable under FERS. The appellant offers no authority for the proposition that

the broader definition in section 4303(13) properly defines the type of service

that is creditable under FERS. Further, the legislative history does not support

the appellant’s position. When Congress enacted USERRA in 1994, it amended

the definition of military service creditable under FERS in 5 U.S.C § 8401(31) to

include full time national guard active duty. Uniformed Services Employment

and Reemployment Rights Act of 1994, PL 103-353 § 5(c), October 13, 1994.

App. 8

Congress did not include inactive duty National Guard training or any form of

inactive duty. Id. I conclude that Congress’ action evinces an intent that such

service not be creditable under FERS even in light of USERRA. See Russello

v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular

language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and purposely in the

disparate

inclusion

or exclusion.”);

Cleaton

Department of Justice,

122 M.S.P.R. 296, 300 (“[W]hen Congress has enumerated specific things to

which a statute applies, it should not be assumed that other things that could have

been listed were meant to be included; rather, the specific mention of certain

things implies the exclusion of others.”).

The appellant has not established entitlement to credit under FERS for his

period of inactive duty training. The appellant has thus not shown he was denied

a benefit of employment and his request for corrective action under this claim is

DENIED.

USERRA does not confer a right to a rest period following a return from military

duty.

The appellant alleges that after completing military service from April 16

to approximately May 31, 2018, the agency deterred him from delaying his return

to duty in violation of 38 U.S.C. § 4312(e)(1)(C). IAF, Tab 10 at 10-11; Tab 27

at 21-22; see Tab 1 at 38-39. According to the appellant, the agency initially

informed him that he could not delay his return to duty at all and subsequently

told him that he could use regular LWOP if it was approved by his supervisor, but

would not receive USERRA protection during any period of leave. IAF, Tab 10

at 10; Tab 27 at 21. It is undisputed that the appellant did not delay his return to

duty and returned to his civilian position on May 31, 2018. IAF, Tab 1 at 39; Tab

27 at 21.

In relevant part, 38 U.S.C. § 4312(e)(1) provides that an individual absent

from a civilian position to perform military service

App. 9

shall, upon the completion of a period of service in the uniformed

services, notify the employer referred to in such subsection of the

person's intent to return to a position of employment with such

employer as follows:

services was for more than 30 days but less than 181 days, by

submitting an application for reemployment with the employer not

later than 14 days after the completion of the period of service or if

submitting such application within such period is impossible or

unreasonable through no fault of the person, the next first full

calendar day when submission of such application becomes possible.

38 U.S.C. § 4312(e)(1).

Neither the Board nor the Federal Circuit has addressed the appellant’s

contention that 4312(e)(1) confers a right to a rest period prior to returning to

civilian duty.

However, the Third Circuit confronted the question in Gordon

v. Wawa, Inc., 388 F.3d 78 (3d Cir. 2004). In Gordon, the plaintiff, Gordon’s

estate, alleged that Gordon stopped by his civilian employer on his way home

from Army Reserve duties to pick up his paycheck and obtain his work schedule

for the upcoming week. Id. at 80.

Gordon’s employer allegedly ordered the

plaintiff to work the night shift and threatened to fire him if he refused. Id.

Gordon complied.

While driving home the next morning, Gordon lost

consciousness, crashed his vehicle, and died. Id. The plaintiff brought a claim in

district court alleging, inter alia, that the defendant denied Gordon the eight-hour

rest period guaranteed by USERRA between his military duties and returning to

work. Id. The district court dismissed the complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6).

App. 10

Noting that USERRA is to be construed liberally in favor of the service

member, the Third Circuit considered the language of section 4312(e)(1).5 The

court explained:

By its plain terms, § 4312(e) sets forth the requirements of an

employee to notify the employer of the employee's intention to return

to work. The eight-hour period referred to in § 4312(e)(l)(A)(i)

marks the outer limit of the time by which the employee must report

to the employer upon returning home from military service. As the

District Court concluded, § 4312(e) is written entirely in terms of an

employee's duties, as opposed to an employer's obligations. There is

no way to construe this statutory language as conferring a

substantive right to eight hours of rest for the returning employee.

Gordon, 388 F.3d at 81-82. Further, the court noted that the context of section

4312(e) buttresses this conclusion:

the remainder of the section sets forth the other requirements for an

employee to secure USERRA's reemployment guarantee, or the

exceptions thereto. Section 4312(a) requires the employee to give the

employer advance notice of leave, requires that the employee's

cumulative leave be no longer than five years, and requires the

employee to report to the employer in compliance with § 4312(e).

Section 4312(b) contains an exception to the advance notice

requirement. Subsection (c) contains exceptions to the five-year

5 Because Gordon’s service lasted fewer than 31 days, the court considered section

4312(e)(1)(A), which provides that an individual shall notify his employer of his intent

to return to employment

In the case of a person whose period of service in the uniformed services

was less than 31 days, by reporting to the employer—

not later than the beginning of the first full regularly scheduled work

period on the first full calendar day following the completion of the

period of service and the expiration of eight hours after a period

allowing for the safe transportation of the person from the place of

that service to the person's residence; or

(ii)

as soon as possible after the expiration of the eight-hour period

referred to in clause (i), if reporting within the period referred to in

such clause is impossible or unreasonable through no fault of the

person.

App. 11

absence limit, and subsection (d) sets forth the conditions under

which an employer need not re-engage an employee. The remaining

subsections impose other duties on the employees, and the section

concludes with the guarantee of USERRA rights to employees who

satisfy § 4312's requirements, including “the notification

requirements established in subsection (e)....” 38 U.S.C. § 4312(h)

(emphasis added).

Id. at 82. The court concluded that “in § 4312(e) Congress sets forth a returning

employee's requirement for providing notice of intent to return to work in order

to reclaim his or her former job, and contains no rights-creating language. Id. at

83-84.

Though the Third Circuit’s decision in Gordon is not binding on the Board,

I find the decision’s analysis persuasive and its conclusion fully supported by the

statutory text.

Like section 4312(e)(1)(A), considered in Gordon, section

4312(e)(1)(C) sets the “outer limit of time” by which an employee absent for 30

to 180 days of military service must “submit[] an application for reemployment

with the employer.” Gordon, 388 F.3d at 81; 5 U.S.C. § 4312(e)(1)(C).

provision confers no right to a rest period.

The

Rather, as the court explained in

Gordon, it sets out the “requirements for an employee to obtain a guarantee of

reemployment under USERRA.” Gordon, 388 F.3d at 82.

The appellant has not established entitlement to a rest period following his

return to duty on or about May 31, 2018. Thus, even accepting the appellant’s

claims regarding the agency’s actions, the appellant has not proven the agency

denied him a benefit of employment.6

The appellant’s request for corrective

action under this claim is DENIED.7

6 The agency offered no evidence regarding the actions claimed by the appellant.

Though the appellant offered no evidence beyond his own statements in his

submissions, I afford his statements evidentiary weight because he made them under

penalty of perjury. 1AF, Tab 10 at 3; Tab 27 at 3.

7 To the extent that the appellant also suggested the agency violated by USERRA

because the appellant would have suffered harm to his seniority or pension benefits had

he delayed his return to duty, the appellant has not established a USERRA violation.

App. 12

DECISION

The appellant’s request for corrective action is DENIED.

FOR THE BOARD:

/S/

Christoph Riddle

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on March 8. 2022. unless a petition

for review is filed by that date. This is an important date because it is usually the

last day on which you can file a petition for review with the Board. However, if

you prove that you received this initial decision more than 5 days after the date of

issuance, you may file a petition for review within 30 days after the date you

actually receive the initial decision.

If you are represented, the 30-day period

begins to run upon either your receipt of the initial decision or its receipt by your

representative, whichever comes first. You must establish the date on which you

or your representative received it. The date on which the initial decision becomes

final also controls when you can file a petition for review with one of the

authorities discussed in the “Notice of Appeal Rights” section, below. The

paragraphs that follow tell you how and when to file with the Board or one of

those authorities. These instructions are important because if you wish to file a

petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition

for review.

As noted above, USERRA does not confer the right claimed by the appellant and,

regardless, the Board cannot redress a hypothetical harm that might have occurred had

the appellant elected a different course of action.

App. 13

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and

may

only

accomplished

the

Board's

e-Appeal

website

(https://e-appeal.mspb. gov).

NOTICE OF LACK OF QUORUM

The Merit Systems Protection Board ordinarily is composed of three

members, 5 U.S.C. § 1201, but currently there are no members in place. Because a

majority vote of the Board is required to decide a case, see 5 C.F.R. § 1200.3(a),

(e), the Board is unable to issue decisions on petitions for review filed with it at

this time. See 5 U.S.C. § 1203. Thus, while parties may continue to file petitions

for review during this period, no decisions will be issued until at least two

members are appointed by the President and confirmed by the Senate. The lack of

a quorum does not serve to extend the time limit for filing a petition or cross

petition. Any party who files such a petition must comply with the time limits

specified herein.

For alternative review options, please consult the section below titled

“Notice of Appeal Rights,” which sets forth other review options.

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in

App. 14

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing.

(b) The initial decision is based on an erroneous interpretation of statute or

regulation or the erroneous application of the law to the facts of the case. The

petitioner must explain how the error affected the outcome of the case.

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case.

(d) New and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. To

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

App. 15

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.

If you file a petition or cross petition for review, the Board will obtain the

record in your case from the administrative judge and you should not submit

anything to the Board that is already part of the record. A petition for review

must be filed with the Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is received by you or your

representative more than 5 days after the date of issuance, 30 days after the date

you or your representative actually received the initial decision, whichever was

first. If you claim that you and your representative both received this decision

more than 5 days after its issuance, you have the burden to prove to the Board the

earlier date of receipt. You must also show that any delay in receiving the initial

decision was not due to the deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or under penalty of perjury (see 5

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail

is determined by the postmark date. The date of filing by fax or by electronic

filing is the date of submission. The date of filing by personal delivery is the

date on which the Board receives the document. The date of filing by commercial

delivery is the date the document was delivered to the commercial delivery

service. Your petition may be rejected and returned to you if you fail to provide

a statement of how you served your petition on the other party. See 5 C.F.R.

§ 1201.4(j). If the petition is filed electronically, the online process itself will

serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)( 1).

App. 16

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations.

NOTICE OF APPEAL RIGHTS

You may obtain review of this initial decision only after it becomes final,

as explained in the “Notice to Appellant” section above. 5 U.S.C. § 7703(a)(1).

By statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file.

5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this decision when it becomes final,

you should immediately review the law applicable to your claims and carefully

follow all filing time limits and requirements,

Failure to file within the

applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

App. 17

5 U.S.C.

within 60 calendar days of the date this decision becomes final.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal

Circuit,

you

must

submit

your

petition

the

court

the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit.

The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial

discrimination.

EEOC

review

cases

involving

claim

This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after this

decision becomes final under the rules set out in the Notice to Appellant section,

above.

582 U.S.

5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,

, 137 S. Ct. 1975 (2017). If the action involves a claim of

App. 18

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after this decision

becomes final as explained above. 5 U.S.C. § 7702(b)(1).

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial

review

pursuant

the

Whistleblower

Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board's

disposition of allegations of a prohibited personnel practice described in section

App. 19

2302(b) other than practices described in section 2302(b)(8) or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review with the U.S.

Court of Appeals for the Federal Circuit or any court of appeals of competent

jurisdiction. The court of appeals must receive your petition for review within

60 days of the date this decision becomes Final under the rules set out in the

Notice to Appellant section, above. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5,6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court Locator/CourtWebsites.aspx

App. 20

Case: 22-1561

Document: 26

Page: 1

Filed: 09/22/2022

NOTE: This disposition is nonprecedential.

®niteb States Court of Appeals:

for tljc Jfeberal Circuit

MICHAEL FARIS,

Petitioner

DEPARTMENT OF THE AIR FORCE,

Respondent

2022-1561

Petition for review of the Merit Systems Protection

Board in No. SF-4324-21-0370-I-1.

Decided: September 22, 2022

MICHAEL FARIS, Prattville, AL, pro se.

DANIEL F. Roland, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Wash

ington, DC, for respondent. Also represented by BRIAN M.

Boynton, Tara K. Hogan, Patricia M. McCarthy.

Before MOORE, Chief Judge, HUGHES and STARK, Circuit

Judges.

App. 21

Case: 22-1561

Document: 26

Page: 2

Filed: 09/22/2022

STARK, Circuit Judge.

Michael Faris appeals from an order of the Merit Sys

tems Protection Board (“MSPB”) denying his request for

corrective action. Because we agree with the MSPB’s de

termination, we affirm.

Mr. Faris was hired as a civilian employee by the

United States Air Force (“USAF”) in 2012 and continued in

that position until his resignation in 2013. SAppx. 7-9.1 In

2014, Mr. Faris returned to his position and later that year

he was promoted. SAppx. 10-12.

During his civilian service, Mr. Faris was intermit

tently put on leave without pay (“LWOP”) status while he

served in the military. See, e.g., SAppx. 13-48. This hap

pened several times between April 2016 and March 2020.

Id. In addition, between April 3 and April 7, 2017, Mr.

Faris participated in inactive duty training with the Na

tional Guard. SAppx. 118-23; Appx. 7.2

As the MSPB explained, “[o]rdinarily, an employee’s

retirement contributions are funded through deductions

from his pay. 5 U.S.C. § 8422. No deductions are made

when an employee is in a nonpay status, such as military

LWOP.” Appx. 4. Mr. Faris wanted to continue to receive

retirement credit when he was on LWOP status. The Fed

eral Employees’ Retirement System (“FERS”) requires that

“to receive credit for this period of military service toward

civilian retirement,” an employee on LWOP status must

pay a military deposit. SAppx. 51; see also Appx. 2.

“SAppx.” citations refer to the appendix filed con

currently with Respondent’s brief.

2 “Appx.” citations refer to the appendix filed concur

rently with Petitioner’s brief.

App. 22

Case: 22-1561

Document: 26

Page: 3

Filed: 09/22/2022

Therefore, Mr. Faris initially paid a military service de

posit for each period he was on LWOP from his civil-service

job. See SAppx. 55-62.

In 2020, after having paid the deposit several times

over the course of years, Mr. Faris changed tack and filed

a Form 1010 with the Department of Labor, alleging that

the deposit requirement violated the Uniformed Services

Employment and Reemployment Rights Act (“USERRA”),

38 U.S.C. §§ 4301-4335. See, e.g., SAppx. 63-66. USERRA

provides employment protections for military service mem

bers. See 38 U.S.C. § 4311(a) (“A person who . . . performs,

[or] has performed, . . . service in a uniformed service shall

not be denied initial employment, reemployment, retention

in employment, promotion, or any benefit of employment

by an employer on the basis of that. . . performance of ser

vice . . . .”).

After reviewing Mr. Faris’ submissions, the Depart

ment of Labor concluded that the evidence did not support

a USERRA violation. SAppx. 67-68. Mr. Faris appealed

that determination to the MSPB, SAppx. 1-6, which denied

his request for corrective action, Appx. 1-20.

Mr. Faris, appearing pro se, timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.

§ 7703(b)(1)(A).

We review the MSPB’s interpretation of a statute or

regulation de novo. Bannister v. Dep’t of Veterans Affs., 26

F.4th 1340, 1342 (Fed. Cir. 2022). We set aside its “action,

findings, or conclusions” only if we find they are “(1) arbi

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures re

quired by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.”

5 U.S.C.

§ 7703(c).

App. 23

Case: 22-1561

Document: 26

Page: 4

Filed: 09/22/2022

To make out a USERRA claim under 38 U.S.C. § 4311,

an employee must show that “(1) they were denied a benefit

of employment, and (2) the employee’s military service was

‘a substantial or motivating factor’ in the denial of such a

benefit.” Adams v. Dep’t of Homeland Sec., 3 F.4th 1375,

1377 (Fed. Cir. 2021). “However, when the benefit in ques

tion is only available to members of the military, claimants

do not need to show that their military service was a sub

stantial or motivating factor.” Id. at 1377-78. Therefore,

because Mr. Faris’ claims “concern benefits only available

to military servicemembers,” he need only show that he

was denied a benefit of employment. Appx. 4. Also, in con

sidering the applicable statutory provisions, where there is

doubt as to the meaning of Congress’ chosen text, we “give

each [statutory provision] as liberal a construction for the

benefit of the veteran as a harmonious interplay of the sep

arate provisions permits.” Fishgold v. Sullivan Drydock &

Repair Corp., 328 U.S. 275, 285 (1946).

Ill

Mr. Faris argues that he was denied a benefit of em

ployment because he was required to make deposits to ob

tain FERS credit during the times he was on LWOP status

for military service. See, e.g., Pet. Br. 4. Mr. Faris also

argues that he was denied a benefit of employment when

the agency did not allow him to make a deposit and receive

FERS service credit during his week of inactive duty Na

tional Guard training in April 2017. Id. We consider each

claim of error in turn.3

3 In coming to our conclusion, we have considered, in

conjunction with our review of the entire record, Mr. Faris’

informal brief (ECF No. 8), his informal reply brief (ECF

No. 18), and the memorandum he filed in lieu of oral argu

ment (ECF No. 24).

App. 24

Case: 22-1561

Document: 26

Page: 5

Filed: 09/22/2022

Mr. Faris argues that the FERS statutory scheme, by

requiring him to pay a deposit to receive FERS credit for

periods of military service while he was on LWOP from his

civilian job, denies him the USERRA-protected benefit of

receiving FERS credit without paying a deposit. See Pet.

Br. 4-25. Mr. Faris’ contentions are defeated by the clear

language of the applicable statutory provisions.

The FERS statute provides that “an employee or Mem

ber shall be allowed credit for . . . each period of military

service performed after December 31, 1956 . . .if a deposit

(including interest, if any) is made with respect to such pe

riod in accordance with section 8422(e).”4 5 U.S.C.

§ 8411(c)(1)(B) (emphasis added). Plainly, § 8411(c)(1)(B)

requires that an employee seeking credit for a period of mil

itary service must make a deposit in order to have such a

credit allowed. This unambiguous statutory language com

pels us to conclude that Mr. Faris is not entitled to credit

without paying the deposit. See Consumer Prods. Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)

(“[T]he starting point for interpreting a statute is the lan

guage of the statute itself. Absent a clearly expressed leg

islative intention to the contrary, that language must

ordinarily be regarded as conclusive.”).

In attempting to evade this straightforward analysis,

Mr. Faris points to § 8411(d), which provides that “[cjredit

under this chapter shall be allowed for leaves of absence

without pay granted an employee while performing mili

tary service . . . .” Mr. Faris argues he should be able to

“claim rights to benefits” under this provision. Pet. Br. 89. However, reading the statute as a whole, as we must,

see, e.g., Corley v. United States, 556 U.S. 303, 314 (2009)

4 Section 8422(e)(1) describes how to calculate the

deposit amount and references the “deposit payable.”

App. 25

Case: 22-1561

Document: 26

Page: 6

Filed: 09/22/2022

(“A statute should be construed so that effect is given to all

its provisions . . .

§ 8411(d) merely clarifies that an em

ployee on LWOP status to perform military service is eligi

ble to receive FERS credit for his service. It does not

absolve him of the obligation to comply with the conditions

for obtaining such a credit, including making the deposit

required by § 8411(c)(1)(B).

USERRA does not support a different conclusion. To

the contrary, the statute explicitly contemplates that “a

person who is absent from a position of employment by rea

son of service in the uniformed services . . . may be required

to pay the employee cost, if any, of any funded benefit con

tinued . . . .” 38 U.S.C. § 4316(b)(1) & (4) (emphasis added).

Another provision of USERRA, § 4316(b)(6), further pro

vides that “[t]he entitlement of a person to a right or benefit

under an employee pension benefit plan is provided for un

der section 4318;” and § 4318 explains that “[a] person

reemployed under this chapter shall be entitled to accrued

benefits . . . that are contingent on the making of. . . em

ployee contributions . . . only to the extent the person makes

payment to the plan with respect to such contribu

tions . . . .” 38 U.S.C. § 4318(b)(2) (emphasis added).

Hence, USERRA is entirely consistent with the militarydeposit requirement.

As Mr. Faris points out, and the USAF does not dis

pute, a civilian employee in LWOP status who is not serv

ing in the military can receive FERS credit for up to six

months in any calendar year without making a deposit.

See Bain u. Off. of Pers. Mgmt., 978 F.2d 1227, 1230 (Fed.

Cir. 1992) (“Taken as a whole, the statutory scheme [] of

FERS . . . allow[s] federal employees up to six months per

year of retirement credit for leaves of absence . . . .”). This

does not make for a USERRA violation, however. As the

USAF correctly responds, USERRA expressly provides

that a person serving in the military while on LWOP status

from their civil-service job may “be required to pay the em

ployee cost, if any, of any funded benefit continued

App. 26

Case: 22-1561

Document: 26

Page: 7

Filed: 09/22/2022

pursuant to paragraph (1) to the extent other employees on

furlough or leave of absence are so required.” 38 U.S.C.

§ 4316(b)(1) & (4) (emphasis added); see also Resp. Br. 1214. For his USERRA claim, the pertinent comparison is

between Mr. Faris’ LWOP and employees “having similar

seniority, status, and pay” who are on similar “furlough or

leave of absence . . . .” 38 U.S.C. § 4316(b)(1)(B); see also

Tullyv. Dep’t of Just., 481 F.3d 1367, 1369 (Fed. Cir. 2007)

(holding that “leave of absence” that “triggers a right to

equivalent treatment” is one that is “comparable to the

leave provided to the service member for military service,”

and rejecting petitioner’s argument that he was entitled to

“the best benefits available to any employee for any leave

of absence”). Mr. Faris has not shown how such a compar

ison disfavors him. Moreover, as the USAF states, “em

ployees on LWOP for reasons besides military service

cannot receive more than six months of service credit in a

calendar year, whereas employees on LWOP for military

service do not face this limitation — a distinction favoring

members of the military.” Resp. Br. 14.

Our conclusions are consistent with Whittacre v. Office

of Personnel Management, 120 M.S.P.R. 114 (2013), on

which the MSPB relied in declining to adopt Mr. Faris’ in

terpretation of the relevant statutes. Appx. 5-7. In Whit

tacre, the MSPB considered the same statutes we have

discussed here and held that when “military service inter

rupts civilian service, a [FERS] deposit not exceeding the

amount that would have been deducted and withheld from

his basic pay had he remained in civilian service during the

period in question is required.” 120 M.S.P.R. at 120.

Because the statutes required Mr. Faris to pay a de

posit if he wished to receive FERS credit for his military

service time, he was not entitled to receive FERS credit

without making a deposit, and therefore Mr. Faris was not

denied an employment benefit to which he was entitled.

Accordingly, his USERRA claim fails, and the MSPB did

not err in denying his request for corrective action.

App. 27

Case: 22-1561

Document: 26

Page: 8

Filed: 09/22/2022

Mr. Faris also argues that he should have been able to

pay a deposit so he could receive FERS credit for his service

while he was on LWOP to participate in inactive duty Na

tional Guard training from April 3 to 7, 2017. Pet. Br. 2529. We disagree.

Title 5, § 8411(c)(1) allows for the accrual of FERS

credit for military service. “Military service” is expressly

defined as “active service.” 5 U.S.C. § 8401(31) (“[T]he

term ‘military service’ means honorable active ser

vice . . . .”). Therefore, Mr. Faris’ inactive duty training is

not eligible for FERS credit.

Mr. Faris asserts that the USERRA definition of “ser

vice in the uniformed services,” which includes “inactive

duty training,” 38 U.S.C. § 4303(13), governs which “mili

tary service” can count for FERS credit. Pet. Br. 25-26. We

are not persuaded. “In construing a statute we are obliged

to give effect, if possible, to every word Congress used.”

Reiter u. Sonotone Corp., 442 U.S. 330, 339 (1979). Adopt

ing Mr. Faris’ view of the statutory scheme would effec

tively read the definition of “military service” Congress

provided in § 8401(31) out of the statute. Therefore, we

conclude that Mr. Faris’ interpretation of the statutory

scheme is incorrect.

Our conclusion is strengthened by the amendment

Congress made to § 8401(31) in connection with the enact

ment of USERRA. At that time, in 1994, Congress

amended FERS’ § 8401(31) definition of “military service”

to add “full-time National Guard duty (as such term is de

fined in section 101(d) of title 10),” but it did not also add

“inactive duty training.” USERRA, Pub. L. No. 103-353

§ 5(c), 108 Stat. 3149, 3174. This omission was clearly in

tended, as the provision cited to, 10 U.S.C. § 101(d)(5), pro

vides that ‘“full-time National Guard duty’ means training

or other duty, other than inactive duty . . . .” (emphasis

added).

App. 28

Case: 22-1561

Document: 26

Page: 9

Filed: 09/22/2022

This set of statutory provisions did not entitle Mr.

Faris to be offered the opportunity to pay a deposit and re

ceive service credit for his inactive-duty service. Hence,

Mr. Faris was not denied an employment benefit under

USERRA. The MSPB did not err in denying his request for

corrective action.

For the foregoing reasons, we conclude that the

MSPB’s decision denying Mr. Faris’ request for corrective

action is supported by substantial evidence and is not arbi

trary, capricious, an abuse of discretion, or otherwise con

trary to law. We have considered Mr. Faris’ additional

arguments and find them unpersuasive. Accordingly, we

affirm.

AFFIRMED

Costs

No costs.

App. 29

Case: 22-1561

Document: 30

Page: 1

Filed: 11/09/2022

NOTE: This order is nonprecedential.

fHniteb ibtateg Court of Appeals

for tfjc Jfeberal Circuit

MICHAEL FARIS,

Petitioner

DEPARTMENT OF THE AIR FORCE,

Respondent

2022-1561

Petition for review of the Merit Systems Protection

Board in No. SF-4324-21-0370-I-1.

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

Before MOORE, Chief Judge, Newman, LOURIE, Dyk,

Prost, Reyna, Taranto, Chen, Hughes, Stoll,

Cunningham, and Stark, Circuit Judges.

Per Curiam.

ORDER

Michael Faris filed a combined petition for panel re

hearing and rehearing en banc. The petition was referred

to the panel that heard the appeal, and thereafter the

App. 30

Case: 22-1561

Document: 30

Page: 2

Filed: 11/09/2022

petition for rehearing en banc was referred to the circuit

judges who are in regular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue November 16, 2022.

For the Court

November 9. 2022

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Chief Deputy Clerk

App. 31

Statutes and Regulations

1 U.S. Code § 8 ■ “Person”, “human being”, “child”, and “individual” as including

born-alive infant.

(a) In determining the meaning of any Act of Congress, or of any ruling,

regulation, or interpretation of the various administrative bureaus and

agencies of the United States, the words “person”, “human being”, “child”,

and “individual”, shall include every infant member of the species homo

sapiens who is born alive at any stage of development.

(b) As used in this section, the term “born alive”, with respect to a member of

the species homo sapiens, means the complete expulsion or extraction from

his or her mother of that member, at any stage of development, who after

such expulsion or extraction breathes or has a beating heart, pulsation of the

umbilical cord, or definite movement of voluntary muscles, regardless of

whether the umbilical cord has been cut, and regardless of whether the

expulsion or extraction occurs as a result of natural or induced labor,

cesarean section, or induced abortion.

contract any legal status or legal right applicable to any member of the

species homo sapiens at any point prior to being “born alive” as defined in

this section.

5 U.S. Code § 8411 * Creditable service

(c)

(l) Except as provided in paragraphs (2), (3), and (5), an employee or Member

shall be allowed credit for—

(A) each period of military service performed before January 1, 1957; and

(B) each period of military service performed after December 31, 1956, and

before the separation on which title to annuity is based, if a deposit

(including interest, if any) is made with respect to such period in accordance

with section 8422(e).

5 U.S. Code § 8411 - Creditable service

(d) Credit under this chapter shall be allowed for leaves of absence without

pay granted an employee while performing military service, or while

receiving benefits under subchapter I of chapter 81. An employee or former

employee who returns to duty after a period of separation is deemed, for the

purpose of this subsection, to have been on leave of absence without pay for

that part of the period in which that individual was receiving benefits under

subchapter I of chapter 81. Credit may not be allowed for so much of other

leaves of absence without pay as exceeds 6 months in the aggregate in a

calendar year.

5 U.S. Code § 8422 - Deductions from pay! contributions for other service; deposits

App. 32

(e)

(1)

(A) Except as provided in subparagraph (B), and subject to paragraph (6),

each employee or Member who has performed military service before the date

of the separation on which the entitlement to any annuity under this

subchapter, or subchapter V of this chapter, is based may pay, in accordance

with such regulations as the Office shall issue, to the agency by which the

employee is employed, or, in the case of a Member or a Congressional

employee, to the Secretary of the Senate or the Chief Administrative Officer

of the House of Representatives, as appropriate, an amount equal to 3

percent of the amount of the basic pay paid under section 204 of title 37 to

the employee or Member for each period of military service after December

1956. The amount of such payments shall be based on such evidence of basic

pay for military service as the employee or Member may provide, or if the

Office determines sufficient evidence has not been so provided to adequately

determine basic pay for military service, such payment shall be based on

estimates of such basic pay provided to the Office under paragraph (4).

(B) In any case where military service interrupts creditable civilian service

under this subchapter and reemployment pursuant to chapter 43 of title 38

occurs on or after August 1, 1990, the deposit payable under this paragraph

may not exceed the amount that would have been deducted and withheld

under subsection (a)(l) from basic pay during civilian service if the employee

had not performed the period of military service.

18 U.S. Code § 2510 - Definitions

(6) “person” means any employee, or agent of the United States or any State

or political subdivision thereof, and any individual, partnership, association,

joint stock company, trust, or corporation!

28 U.S. Code § 1254 • Courts of appeals! certiorari! certified questions

Cases in the courts of appeals may be reviewed by the Supreme Court by the

following methods^

(l) By writ of certiorari granted upon the petition of any party to any civil or

criminal case, before or after rendition of judgment or decree!

38 U.S. Code § 4301 ■ Purposes! sense of Congress

(a) The purposes of this chapter are—

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

uniformed services.

38 U.S. Code § 4301 ■ Purposes! sense of Congress

(b) It is the sense of Congress that the Federal Government should be a

model employer in carrying out the provisions of this chapter.

App. 33

38 U.S. Code § 4302 ■ Relation to other law and plans or agreements

(a) Nothing in this chapter shall supersede, nullify or diminish any Federal or

State law (including any local law or ordinance), contract, agreement, policy,

plan, practice, or other matter that establishes a right or benefit that is more

beneficial to, or is in addition to, a right or benefit provided for such person in

this chapter.

(b) This chapter supersedes any State law (including any local law or

ordinance), contract, agreement, policy, plan, practice, or other matter that

reduces, limits, or eliminates in any manner any right or benefit provided by

this chapter, including the establishment of additional prerequisites to the

exercise of any such right or the receipt of any such benefit.

38 U.S. Code § 4303 - Definitions

(2) The term “benefit”, “benefit of employment”, or “rights and benefits” means

the terms, conditions, or privileges of employment, including any advantage,

profit, privilege, gain, status, account, or interest (including wages or salary for

work performed) that accrues by reason of an employment contract or

agreement or an employer policy, plan, or practice and includes rights and

benefits under a pension plan, a health plan, an employee stock ownership plan,

insurance coverage and awards, bonuses, severance pay, supplemental

unemployment benefits, vacations, and the opportunity to select work hours or

location of employment.

(13) The term “service in the uniformed services” means the performance of duty

on a voluntary or involuntary basis in a uniformed service under competent

authority and includes active duty, active duty for training, initial active duty

for training, inactive duty training, full-time National Guard duty, State active

duty for a period of 14 days or more, State active duty in response to a national

emergency declared by the President under the National Emergencies Act (50

U.S.C. 1601 et seq.), State active duty in response to a major disaster declared

by the President under section 401 of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act (42 U.S.C. 5170), a period for which a person is

absent from a position of employment for the purpose of an examination to

determine the fitness of the person to perform any such duty, a period for which

a System member of the National Urban Search and Rescue Response System is

absent from a position of employment due to an appointment into Federal

service under section 327 of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act, a period for which a person is absent from a position

of employment due to an appointment into service in the Federal Emergency

Management Agency as intermittent personnel under section 306(b)(1) of the

Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C.

5149(b)(1)), and a period for which a person is absent from employment for the

purpose of performing funeral honors duty as authorized by section 12503 of

title 10 or section 115 of title 32.

App. 34

38 U.S. Code § 4311 - Discrimination against persons who serve in the uniformed

services and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has

performed, applies to perform, or has an obligation to perform service in a

uniformed service shall not be denied initial employment, reemployment,

retention in employment, promotion, or any benefit of employment by an

employer on the basis of that membership, application for membership,

performance of service, application for service, or obligation.

(b) An employer may not discriminate in employment against or take any

adverse employment action against any person because such person (l) has

taken an action to enforce a protection afforded any person under this

chapter, (2) has testified or otherwise made a statement in or in connection

with any proceeding under this chapter, (3) has assisted or otherwise

participated in an investigation under this chapter, or (4) has exercised a

right provided for in this chapter. The prohibition in this subsection shall

apply with respect to a person regardless of whether that person has

performed service in the uniformed services.

(1) under subsection (a), if the person’s membership, application for

membership, service, application for service, or obligation for service in the

uniformed services is a motivating factor in the employer’s action, unless the

employer can prove that the action would have been taken in the absence of

such membership, application for membership, service, application for

service, or obligation for service; or

(2) under subsection (b), if the person’s (A) action to enforce a protection

afforded any person under this chapter, (B) testimony or making of a

statement in or in connection with any proceeding under this chapter, (C)

assistance or other participation in an investigation under this chapter, or

(D) exercise of a right provided for in this chapter, is a motivating factor in

the employer’s action, unless the employer can prove that the action would

have been taken in the absence of such person’s enforcement action,

testimony, statement, assistance, participation, or exercise of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to any position of

employment, including a position that is described in section 4312(d)(1)(C) of

this title.

38 U.S. Code § 4312 - Reemployment rights of persons who serve in the uniformed

services

(a) Subject to subsections (b), (c), and (d) and to section 4304, any 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—

App. 35

(1) the person (or an appropriate officer of the uniformed service in which

such service is performed) has given advance written or verbal notice of such

service to such person’s employer!

(2) the cumulative length of the absence and of all previous absences from a

position of employment with that employer by reason of service in the

uniformed services does not exceed five years! and

(3) except as provided in subsection (f), the person reports to, or submits an

application for reemployment to, such employer in accordance with the

provisions of subsection (e).

38 U.S. Code § 4316 • Rights, benefits, and obligations of persons absent from

employment for service in a uniformed service

(b)

(l) Subject to paragraphs (2) through (6), a person who is absent from a

position of employment by reason of service in the uniformed services shall

be—

(A) deemed to be on furlough or leave of absence while performing such

service! and

(B) entitled to such other rights and benefits not determined by seniority as

are generally provided by the employer of the person to employees having

similar seniority, status, and pay who are on furlough or leave of absence

under a contract, agreement, policy, practice, or plan in effect at the

commencement of such service or established while such person performs

such service.

(2)

(A) Subject to subparagraph (B), a person who—

(i) is absent from a position of employment by reason of service in the

uniformed services, and

(ii) knowingly provides written notice of intent not to return to a position of

employment after service in the uniformed service,

is not entitled to rights and benefits under paragraph (l)(B).

(B) For the purposes of subparagraph (A), the employer shall have the burden

of proving that a person knowingly provided clear written notice of intent not

to return to a position of employment after service in the uniformed service

and, in doing so, was aware of the specific rights and benefits to be lost under

subparagraph (A).

(3) A person deemed to be on furlough or leave of absence under this

subsection while serving in the uniformed services shall not be entitled under

this subsection to any benefits to which the person would not otherwise be

entitled if the person had remained continuously employed.

(4) Such person may be required to pay the employee cost, if any, of any

funded benefit continued pursuant to paragraph (l) to the extent other

employees on furlough or leave of absence are so required.

App. 36

(5) The entitlement of a person to coverage under a health plan is provided

for under section 4317.

(6) The entitlement of a person to a right or benefit under an employee

pension benefit plan is provided for under section 4318.

38 U.S. Code § 4318 ■ Employee pension benefit plans

(a)

(1)

(A) Except as provided in subparagraph (B), in the case of a right provided

pursuant to an employee pension benefit plan (including those described in

sections 3(2) and 3(33) of the Employee Retirement Income Security Act of

1974) or a right provided under any Federal or State law governing pension

benefits for governmental employees, the right to pension benefits of a person

reemployed under this chapter shall be determined under this section.

(B) In the case of benefits under the Thrift Savings Plan, the rights of a

person reemployed under this chapter shall be those rights provided in

section 8432b of title 5. The first sentence of this subparagraph shall not be

construed to affect any other right or benefit under this chapter.

(2)

(A) A person reemployed under this chapter shall be treated as not having

incurred a break in service with the employer or employers maintaining the

plan by reason of such person’s period or periods of service in the uniformed

services.

(B) Each period served by a person in the uniformed services shall, upon

reemployment under this chapter, be deemed to constitute service with the

employer or employers maintaining the plan for the purpose of determining

the nonforfeitability of the person’s accrued benefits and for the purpose of

determining the accrual of benefits under the plan.

(b)

(l) An employer reemploying a person under this chapter shall, with respect

to a period of service described in subsection (a)(2)(B), be liable to an

employee pension benefit plan for funding any obligation of the plan to

provide the benefits described in subsection (a)(2) and shall allocate the

amount of any employer contribution for the person in the same manner and

to the same extent the allocation occurs for other employees during the period

of service. For purposes of determining the amount of such liability and any

obligation of the plan, earnings and forfeitures shall not be included. For

purposes of determining the amount of such liability and for purposes of

section 515 of the Employee Retirement Income Security Act of 1974 or any

similar Federal or State law governing pension benefits for governmental

employees, service in the uniformed services that is deemed under subsection

(a) to be service with the employer shall be deemed to be service with the

employer under the terms of the plan or any applicable collective bargaining

agreement. In the case of a multiemployer plan, as defined in section 3(37) of

App. 37

the Employee Retirement Income Security Act of 1974, any liability of the

plan described in this paragraph shall be allocated—

(A) by the plan in such manner as the sponsor maintaining the plan shall

provide! or

(B) if the sponsor does not provide—

(1) to the last employer employing the person before the period served by the

person in the uniformed services, or

(ii) If such last employer is no longer functional, to the plan.

(2) A person reemployed under this chapter shall be entitled to accrued

benefits pursuant to subsection (a) that are contingent on the making of, or

derived from, employee contributions or elective deferrals (as defined in

section 402(g)(3) of the Internal Revenue Code of 1986) only to the extent the

person makes payment to the plan with respect to such contributions or

deferrals. No such payment may exceed the amount the person would have

been permitted or required to contribute had the person remained

continuously employed by the employer throughout the period of service

described in subsection (a)(2)(B). Any payment to the plan described in this

paragraph shall be made during the period beginning with the date of

reemployment and whose duration is three times the period of the person’s

service in the uniformed services, such payment period not to exceed five

years.

(3) For purposes of computing an employer’s liability under paragraph (l) or

the employee’s contributions under paragraph (2), the employee’s

compensation during the period of service described in subsection (a)(2)(B)

shall be computed—

(A) at the rate the employee would have received but for the period of service

described in subsection (a)(2)(B), or

(B) in the case that the determination of such rate is not reasonably certain,

on the basis of the employee’s average rate of compensation during the 12month period immediately preceding such period (or, if shorter, the period of

employment immediately preceding such period).

employer contributing to a multiemployer plan, as defined in section 3(37) of

the Employee Retirement Income Security Act of 1974, under which benefits

are or may be payable to such person by reason of the obligations set forth in

this chapter, shall, within 30 days after the date of such reemployment,

provide information, in writing, of such reemployment to the administrator of

such plan.

38 U.S. Code § 4324 - Enforcement of rights with respect to Federal executive

agencies

(d)

(l) A person adversely affected or aggrieved by a final order or decision of the

Merit Systems Protection Board under subsection (c) may petition the United

App. 38

States Court of Appeals for the Federal Circuit to review the final order or

decision. Such petition and review shall be in accordance with the procedures

set forth in section 7703 of title 5.

38 U.S. Code § 4331 - Regulations

(b)

(l) The Director of the Office of Personnel Management (in consultation with

the Secretary and the Secretary of Defense) may prescribe regulations

implementing the provisions of this chapter with regard to the application of

this chapter to Federal executive agencies (other than the agencies referred

to in paragraph (2)) as employers. Such regulations shall be consistent with

the regulations pertaining to the States as employers and private employers,

except that employees of the Federal Government may be given greater or

additional rights.

5 C.F.R. § 353.107 - Service credit upon reemployment.

Upon reemployment, an employee absent because of uniformed service or

compensable injury is generally entitled to be treated as though he or she had never

left. This means that a person who is reemployed following uniformed service or full

recovery from compensable injury receives credit for the entire period of the absence

for purposes of rights and benefits based upon seniority and length of service,

including within-grade increases, career tenure, completion of probation, leave rate

accrual, and severance pay.

20 C.F.R.§ 1002.149 ■ What is the employee's status with his or her civilian

employer while performing service in the uniformed services?

During a period of service in the uniformed services, the employee is deemed

to be on furlough or leave of absence from the civilian employer. In this

status, the employee is entitled to the non-seniority rights and benefits

generally provided by the employer to other employees with similar seniority,

status, and pay that are on furlough or leave of absence. Entitlement to these

non-seniority rights and benefits is not dependent on how the employer

characterizes the employee's status during a period of service. For example, if

the employer characterizes the employee as “terminated” during the period of

uniformed service, this characterization cannot be used to avoid USERRA's

requirement that the employee be deemed on furlough or leave of absence,

and therefore entitled to the non-seniority rights and benefits generally

provided to employees on furlough or leave of absence.

20 C.F.R.§ § 1002.150 - Which non-seniority rights and benefits is the employee

entitled to during a period of service?

(a) The non-seniority rights and benefits to which an employee is entitled

during a period of service are those that the employer provides to similarly

situated employees by an employment contract, agreement, policy, practice,

App. 39

or plan in effect at the employee's workplace. These rights and benefits

include those in effect at the beginning of the employee's employment and

those established after employment began. They also include those rights and

benefits that become effective dming the employee's period of service and

that are provided to similarly situated employees on furlough or leave of

absence.

(b) If the non-seniority benefits to which employees on furlough or leave of

absence are entitled vary according to the type of leave, the employee must be

given the most favorable treatment accorded to any comparable form of leave

when he or she performs service in the uniformed services. In order to

determine whether any two types of leave are comparable, the duration of the

leave may be the most significant factor to compare. For instance, a two-day

funeral leave will not be “comparable” to an extended leave for service in the

uniformed service. In addition to comparing the duration of the absences,

other factors such as the purpose of the leave and the ability of the employee

to choose when to take the leave should also be considered.

seniority benefit that must be provided by an employer to an employee on a

military leave of absence only if the employer provides that benefit to

similarly situated employees on comparable leaves of absence.

20 C.F.R.§ § 1002.151 - If the employer provides full or partial pay to the employee

while he or she is on military leave, is the employer required to also provide the

non-seniority rights and benefits ordinarily granted to similarly situated employees

on furlough or leave of absence?

Yes. If the employer provides additional benefits such as full or partial pay

when the employee performs service, the employer is not excused from

providing other rights and benefits to which the employee is entitled under

the Act.

20 C.F.R.§ § 1002.152 - If employment is interrupted by a period of service in the

uniformed services, are there any circumstances under which the employee is not

entitled to the non-seniority rights and benefits ordinarily granted to similarly

situated employees on furlough or leave of absence?

If employment is interrupted by a period of service in the uniformed services

and the employee knowingly provides written notice of intent not to return to

the position of employment after service in the uniformed services, he or she

is not entitled to those non-seniority rights and benefits. The employee's

written notice does not waive entitlement to any other rights to which he or

she is entitled under the Act, including the right to reemployment after

service.

App. 40

Additional material

i-.»

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.