Petition for Writ of Certiorari — Nick Feliciano, Petitioner v. Department of Transportation
Supreme Court briefFeb 8, 2024
Ask Donna
What actually matters in this document.
Text
APPENDIX
TABLE OF CONTENTS
APPENDIX A:
Federal Circuit Court of Appeals
Decision (May 15, 2023) ................. 1a
APPENDIX B:
Merit Systems Protection Board
Initial Decision (July 21, 2022) ...... 7a
APPENDIX C:
Federal Circuit Court of Appeals
Order (Oct. 27, 2023) .................... 51a
APPENDIX D:
5 U.S.C. § 5538 .............................. 53a
APPENDIX E:
10 U.S.C. § 101 .............................. 56a
APPENDIX F:
18 U.S.C. § 209 .............................. 71a
APPENDIX G:
Excerpt of Travel Order
(July 8, 2012) ................................. 74a
APPENDIX H:
Excerpt of Travel Order
(June 3, 2013) ................................ 75a
APPENDIX I:
Excerpt of Travel Order
(Sept. 23, 2013).............................. 76a
APPENDIX A
NOTE: This disposition is nonprecedential.
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
___________________
NICK FELICIANO,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
___________________
2022-1219
___________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-18-0287-I-4.
___________________
Decided: May 15, 2023
___________________
BRIAN J. LAWLER, Pilot Law, PC, San Diego, CA,
argued for petitioner.
GEOFFREY MARTIN LONG, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by BRIAN M. BOYNTON, CLAUDIA BURKE,
PATRICIA M. MCCARTHY.
___________________
Before LOURIE, HUGHES, and STARK, Circuit
Judges.
HUGHES, Circuit Judge.
(1a)
2a
Nick Feliciano appeals the final decision of the Merit
Systems Protection Board denying his request for
differential pay for his military service in the United
States Coast Guard. We have previously held in Adams v.
Department of Homeland Security, 3 F.4th 1375 (Fed.
Cir. 2021) and Nordby v. Social Security Administration,
No. 21-2280 (Fed. Cir. May 11, 2023) that the entitlement
to differential pay under 5 U.S.C. § 5538(a) and 10 U.S.C.
§ 101(a)(13)(B) requires the employee to serve in a
contingency operation. Because those cases control the
outcome here, we affirm.
I
Mr. Feliciano worked as an air traffic controller for
the Federal Aviation Administration. He also served as a
reserve officer in the United States Coast Guard. From
July to September 2012, he performed active duty under
10 U.S.C. § 12302 to support a Department of Defense
contingency operation. During this period, he received
differential pay to make up the difference between his
military and civilian compensation. His active duty was
later extended to July 2013, but he did not receive
differential pay for the extended period.
Under a new series of orders in effect from July 2013
to September 2014 and issued pursuant to 10 U.S.C. §
12301(d), he was activated again to perform military duty
in the Coast Guard to support various operations—
“Operation Iraqi Freedom, Operation Enduring
Freedom, etc.” After the orders expired, Mr. Feliciano
was retained under 10 U.S.C. § 12301(h) to receive
medical treatment until February 2017. He did not
receive differential pay for his military service between
July 2013 and September 2014.
In 2018, he filed an appeal to the Board alleging that
he was subject to a hostile work environment due to his
3a
military service. He later amended his hostile work
environment appeal to include allegations related to the
FAA’s refusal to provide differential pay pursuant to 5
U.S.C. § 5538. While his appeal was pending, we held in
Adams that for an employee to be entitled to differential
pay under § 5538, the employee “must have served
pursuant to a call to active duty that meets the statutory
definition of contingency operation.” 3 F.4th at 1378.
Shortly after Adams issued, the Board, citing Adams,
denied his request for differential pay. J.A. 58–60. The
Board found that he failed to present any evidence that he
was “directly involved” in a contingency operation. J.A.
58. Accordingly, the Board held that Mr. Feliciano’s
military service did not meet the statutory definition of
contingency operation and denied his request for
differential pay under § 5538.
Mr. Feliciano now appeals.
II
We set aside the Board’s decision only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). Legal conclusions by the
Board are reviewed de novo. Wrocklage v. Dep’t of
Homeland Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014).
III
Mr. Feliciano concedes that our holding in Adams
affects the outcome of this case. Pet. Br. vii, 6–7. He
dedicates most of his argument to challenging Adams and
does not purport to show how his activation under 10
U.S.C. § 12301(d) qualifies as a contingency operation and
4a
thus warrants a different outcome from that of Adams.
See Pet. Br. 10–13, 14–26.
As we explained in Nordby, we are bound by Adams.
To receive differential pay, an employee “must have
served pursuant to a call to active duty that meets the
statutory definition of contingency operation.” Adams, 3
F.4th at 1378; Nordby, No. 21-2280. slip op. at 4. And for
voluntary activation under 10 U.S.C. § 12301(d) to qualify
as a contingency operation, “there must be a connection
between the voluntary military service and the declared
national emergency.” Nordby, No. 21-2280. slip op. at 5.
Mr. Feliciano has not alleged any connection between his
service and the ongoing national emergency, and thus
fails to demonstrate that his voluntary, active service
under 10 U.S.C. § 12301(d) met the statutory definition of
a contingency operation. For the same reasons as in
Adams and Nordby, we conclude that Mr. Feliciano’s
service does not qualify as an active duty contingency
operation, and that the Board properly denied differential
pay.
IV
Mr. Feliciano next argues that he was prejudiced by
the Board’s one-year delay in issuing its decision after the
proceedings. The hearing for the appeal was held on July
30 and 31, 2020, and the record was closed on September
14, 2020. The initial decision was not issued until
September 1, 2021, about a year later. During this oneyear interim period, we decided Adams in July 2021.
The Board’s decision largely relied on its finding that
Mr. Feliciano “failed to present any evidence that he was
called to directly serve in a contingency operation.” J.A.
58. He argues that he could not have presented the
evidence, because such evidence was not necessary preAdams. He views Adams as adding a new requirement
5a
that employees serve in a contingency operation to
receive differential pay. We disagree. As we stated in
Adams and again in Nordby, even if the term
“contingency operation” does not appear on the face of §
5538, it is incorporated by reference. Section 5538
requires a finding of active duty pursuant to “a provision
of law referred to in section 101(a)(13)(B) of title 10,” and
§ 101(a)(13), in turn, defines the term “contingency
operation.” 10 U.S.C. § 101(a)(13) (“The term
‘contingency operation’ means a military operation that . .
. . ”); Adams, 3 F.4th at 1378; Nordby, No. 21-2280, slip
op. at 4. Moreover, after Adams was decided, Mr.
Feliciano could have, but did not, file for a petition for
review by the Board. Under 5 C.F.R. § 1201.115(d), the
Board has discretion to reopen the record when a
petitioner demonstrates that “[n]ew and material
evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the
record was closed.” If Mr. Feliciano wished to present
new evidence, he needed to file a petition for review by the
full Board. But he did not avail himself of that option.
Mr. Feliciano offers no legal support for his assertion
that it was “arbitrary, abuse of discretion, and subject to
reversal” for the Board to issue the decision after “the
evidentiary standard regarding the nature of his orders
changed dramatically.” 1 Pet. Br. 28. Once we decided
Mr. Feliciano also argues that the delay violated the MSPB’s own
statutory guideline, 5 C.F.R. § 9701.706(k)(7), which states that “[a]n
initial decision must be made no later than 90 days after the date on
which the appeal is filed.” However, this regulation applies to the
appeals by the Department of Homeland Security employees, not by
Department of Transportation employees. See 5 C.F.R. §§
9701.706(a); 9701.103. And in any event, § 9701.706(l) notes that the
failure of the MSPB to meet these deadlines will not prejudice either
party or form the basis for any legal action.
1
6a
Adams, the Board was bound by our interpretation of 5
U.S.C. § 5538(a), and the Board properly applied Adams
in rendering its decision.
V
Because Mr. Feliciano’s service does not qualify as an
active duty contingency operation, as required by 5 U.S.C.
§ 5538(a), the Board properly denied differential pay. We
affirm the decision of the Board.
AFFIRMED
COSTS
No costs
APPENDIX B
[FILED: JULY 21, 2022]
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
NICK FELICIANO,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-4324-18-0287-I-4
DATE: September 1, 2021
BRIAN J. LAWLER, Esquire, and MELINDA GAHN,
Esquire, San Diego, California, for the appellant.
BRIAN A. PRICE, Esquire, Des Plaines, Illinois, and
RASHAWN RICH GEORGE, Esquire, College Park,
Georgia, for the agency.
BEFORE
SHARON J. POMERANZ
Administrative Judge
INITIAL DECISION
(7a)
8a
The appellant filed this appeal alleging that the
Federal Aviation Administration (FAA or agency)
violated his rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994
(USERRA), 38 U.S.C. §§ 4301 et seq. See Nick Feliciano
v. Department of Transportation, Docket No. AT-432318-0287-I-1 (Initial Appeal filed February 25, 2018),
Initial Appeal File (IAF-1), Tab 1. In his appeal, the
appellant alleges that the agency created a hostile work
environment based on his military service. He also alleges
that the agency denied him differential pay and 22
workdays of paid military leave for time spent on military
duty. See 5 U.S.C. §§ 5538(a); 6323(b).
The Board has jurisdiction over claims of military
status discrimination and requests for corrective action
under USERRA. See 38 U.S.C. § 4324(b) and (c); 5 C.F.R.
§ 1208.2(a); Erlendson v. Department of Justice, 121
M.S.P.R. 441, ¶ 5 (2014). The hearing the appellant
requested was conducted by videoconferencing on July 30
and 31, 2020. The record closed on September 14, 2020,
with the parties’ submission of post-hearing briefs. For
the reasons set forth below, the appellant’s request for
corrective action is DENIED.
ANALYSIS AND FINDINGS
Procedural Background
On February 25, 2018, the appellant filed this appeal.
IAF-1, Tab 1. The appeal was dismissed without prejudice
on December 21, 2018. IAF-1, Tab 25. On February 22,
2019, the appeal was refiled. See Nick Feliciano v.
Department of Transportation, Docket No. AT-4323-180287-I-2 (IAF-2), Tab 1. The appeal was dismissed a
second time on October 3, 2019. IAF-2, Tab 65. The appeal
was refiled a third time on December 2, 2019. See Nick
Feliciano v. Department of Transportation, Docket No.
9a
AT-4323-18-0287-I-3 (IAF-3), Tab 1. The appeal was
dismissed again on June 2, 2020. IAF-3, Tab 16. On June
13, 2020, the appeal was refiled a final time. See Nick
Feliciano v. Department of Transportation, Docket No.
AT-4323-18-0287-I-4 (IAF-4), Tab 1.
Factual Background
The following facts are not reasonably disputed. The
appellant began working for the FAA as a Developmental
Air Traffic Controller (ATC) in 2005, where he was
assigned to the New York Center (ZNY) facility.1 Hearing
Transcript, Day 1 (HT-1) at 15 (Feliciano).2 From 2003
through 2019, the appellant also served as a reserve
officer in the United States Coast Guard. Id. at 16. The
appellant’s reserve obligations required him to perform
military service drills one weekend every month, as well
as for two additional weeks during each calendar year.3 Id.
at 19. While at ZNY, the appellant was supervised by
Kenny Gaskin and Tony Tellarico.4 Id. at 20. Wolfgang
Lerch was the Operations Manager. Id. As ZNY was
responsible for the airspace above 11,000 feet, ATC’s were
A Developmental ATC is an ATC in training at a field facility who
has not been facility certified in terminal/en route operations of an air
traffic facility. IAF-2, Tab 30 at 38 (Human Resource Policy Manual
– Employment Policy for Air Traffic Control Specialist in Training,
EMP-1.14a). Upon completion of training, a Developmental ATC
becomes a Certified Professional Controller.
1
HT-1 refers to the hearing transcript from July 30, 2020, while HT2 refers to the hearing transcript from July 31, 2020.
2
As discussed more below, starting in 2012, the appellant was called
to active duty, where he largely remained until 2017. IAF-2, Tab 24
at 4-5, 14, 19, 25; Tab 25 at 15, 29 at 41-42, and IAF-4, Tab 4 at 10-14,
18, 27.
3
Kenny Gaskin was requested as a witness but the agency was unable
to locate him. Tony Tellarico was not requested as a witness. IAF-2,
Tab 61; HT-2 at 98-100 (Beech).
4
10a
not responsible for assisting aircraft with takeoffs or
landings. HT-1 at 103- 04 (White).
Effective December 21, 2008, the appellant
transferred from ZNY to the Myrtle Beach Tower (MYR)
in Myrtle Beach, South Carolina, where he was
supervised by Ricardo Washington. HT-1 at 15
(Feliciano). MYR is both an Air Traffic Control Tower and
a Terminal Radar Approach Control Facility
(TRACON).5 HT-1 at 99 (White). An Air Traffic Control
Tower monitors aircraft as it is taxiing, taking off and
landing at the airport. HT-2 at 33 (Williams). The
TRACON monitors the departure, descent and approach
phases of each flight. En route refers to working air traffic
that is already air borne while an ATC at a terminal
facility works arrivals and departures of aircraft, as well
as coordinating satellite airports and sometimes military
facilities.
The appellant’s training team consisted of Mr.
Washington, and two training instructors, Drew Blanton
and Randy Privett. When he arrived at MYR, the
appellant was required to certify in five positions: (1)
Flight Data; (2) Clearance Delivery; (3) Ground Control;
(4) Local Control; and (5) Cab Control. Flight Data
provides weather reporting and addresses flight plan
changes; Clearance Delivery issues clearance for an
aircraft to fly its designated route; Ground Control is
responsible for taxiing aircraft to and from the runway;
Local Control works all aircraft on the runway and in the
air within five nautical miles of the airport; Cab Controller
involves overseeing the entire Tower Cab and
coordinating the Local Controller and the Ground
In contrast, ZNY was an air route traffic control center, where ATCs
did not assist aircraft with taking off and landing. HT-1 at 18
(Feliciano Testimony).
5
11a
Controller. HT-1 at 32 (Feliciano); 99-102 (White). During
training, a Developmental ATC receives a monthly skills
check by the supervisor to see how the Developmental
ATC is progressing. HT-1 at 57 (Feliciano); 168 (White).
The appellant began his training in the Air Traffic
Control Tower training in the Tower Cab.6 On April 13,
2009, the appellant was certified on Flight Data, and he
certified on Ground Control on June 5, 2009. IAF-2, Tab
41 at 21-22, 25- 26; HT-1 at 105 (White); 213 (Washington).
The appellant’s training team felt he was struggling with
Local Control and Cab Control positions, so they
extended his training hours by 20 percent. IAF-2, Tab 37
at 47. On February 18, 2010, Mr. Washington
recommended that the appellant be given skills
enhancement training for the Local Control and Cab
Control positions. HT-1 at 216 (Washington); IAF-2, Tab
32 at 44. Skills enhancement training identifies problem
areas and focuses on them. HT-1 at 156-57 (White).
On February 17, 2010, Karl White became the
appellant’s supervisor. IAF- 2, Tab 38 at 5. The appellant
received the skills enhancement training that Mr.
Washington had recommended for him, from February
22, 2010, until February 23, 2010. IAF-2, Tab 35 at 36-41.
According to agency training documents, the appellant
continued to struggle. See IAF-2, Tab 32 at 44-45, 47-48.
As a result, Mr. White extended the appellant’s training
hours by twenty percent, giving him 46 additional hours
of training for Local Control and four extra hours of
training for Cab Control.7 IAF-2, Tab 37 at 47. If a trainee
The Tower Cab is the glass enclosed portion at the top of the Air
Traffic Control Tower.
6
A trainee’s target hours can be extended by twenty percent if
additional time is needed for him to certify. HT-1 at 116 (White).
7
12a
does not certify within the allotted target hours, his
training is suspended. HT-1 at 117 (White).
On May 31, 2010, Mr. White conducted the appellant’s
certification test for the Local and Cab Control positions.
IAF-2, Tab 41 at 17-18. The appellant was successful and
was certified in these two positions. Id. at 18. After
certifying in the Local and Cab Control positions, the
appellant began training for the Clearance Delivery
(radar) position. IAF-2, Tabs 35 at 42-48; 36 at 4-18. This
position requires the Developmental ATC to monitor
aircraft departure, descent, and approach.
According to the agency, the appellant struggled with
the radar position, so in February 2011, he was given a
skills enhancement training plan designed to assist him in
getting certified in this area. IAF-2, Tab 35 at 42-43. On
May 31, 2011, the members of the appellant’s training
team identified the following areas of concern for the
appellant in the radar position: separation, control
judgment, and methods and procedures. IAF-2, Tab 32 at
5. In addition, the training team identified various actions
the appellant needed to take to improve in this area. Id.
Although the appellant received additional skills
enhancement training in June and July of 2011, he
continued to struggle with radar control. See e.g., IAF-2,
Tabs 32 at 7, 13-16; 33 at 33-36; 36 at 19; 37 at 4; 38 at 2225, 32-37, 40-41; 39 at 11.
On November 1, 2011, Mr. White conducted the
appellant’s monthly skills check. IAF-2, Tabs 33 at 38; 34
at 4. The record reflects that the appellant had difficulties
and did not pass this skills check. HT-1 at 169-177 (White);
IAF-2, Tab 33 at 38; 34 at 4; HT-1 at 20-24. Mr. White
testified that the appellant used incorrect clearance and
phraseology and evidenced a lack of understanding of
methods and procedures. HT-1 at 172-74. At this point,
13a
Mr. White decided to suspend the appellant’s training,
which he did on November 6, 2011. HT-1 at 184; IAF-2,
Tab 38 at 18.
After the appellant’s training was suspended, a
Training Review Panel (TRP) was convened to review
whether the appellant’s training should be terminated.
IAF-2, Tab 37 at 28-30. The TRP consisted of the
following individuals: Carl Brooks, Walter Hall, and Jeff
Soule, who was a union representative. HT-2 at 76-77
(Soule). On December 2, 2011, the TRP recommended
that the appellant’s training be discontinued.8 IAF-2, Tab
37 at 28- 30; HT-1 at 224 (Washington).
On December 8, 2011, Mr. Washington notified the
appellant that he had decided to terminate his training.
IAF-2, Tab 37 at 31. The appellant was given an
opportunity to submit a response to Mr. Washington’s
decision, which he did. IAF-2, Tab 37 at 32-35. In his
response, the appellant indicated that his military
commitment and a personal tragedy created distractions
that had impacted his training. Id. The appellant also
indicated that he felt Mr. White was uninterested in
working with him and made him uncomfortable. On
February 15, 2012, Mr. Washington informed the
appellant, after reviewing the TRP recommendation
again and considering his reply, he had decided to
continue his training. IAF-2, Tab 37 at 40; HT-1 at 60
(Feliciano).
On February 23, 2012, Mr. White provided the
appellant with another skills enhancement training plan.
IAF-2, Tab 37 at 5-6. The plan stated it was designed to
address deficiencies in separation, coordination, control
The TRB’s recommendation was not unanimous. Mr. Soule believed
the appellant’s training should continue and wrote a dissenting
opinion to that effect. IAF-2, Tab 37 at 26-27.
8
14a
judgment, and methods and procedures. Id. at 5. On
March 14, 2012, the appellant wrote Mr. Washington
requesting to have Mr. White removed as his supervisor.
IAF-2, Tab 35 at 30. In his letter, the appellant stated that
he believed Mr. White would not change his opinion about
him after suspending his training.9 Id. After consulting
with the appellant and his training instructors and
reviewing his training history, Mr. Washington denied the
appellant’s request for a supervisor change. IAF-2, Tab
35 at 35. In his memorandum, Mr. White noted that, while
he had considered the appellant’s request, he did not find
sufficient cause to grant it. Id.
Starting on July 9, 2012, the appellant was called to
active duty. IAF-2, Tab 25 at 15. While the appellant was
scheduled to return on September 30, 2012, his military
duty was extended, through various military orders, until
March 24, 2014. Id., Tab 24 at 14-16, 19-21, 25. The
appellant returned to the FAA on March 21, 2014, but was
called back to military duty on April 29, 2014. Id. at 4-5.
The appellant remained on military duty until February
6, 2017, when he returned to work for the agency. IAF-4,
Tab 4 at 7-9, 11, 13-14, 18, 27; IAF- 2, Tab 29 at 16-18, 4142, 47; HT-1 at 67-69 (Feliciano).
On February 25, 2018, the appellant filed this appeal
alleging that he was subjected to a hostile work
environment due to his military service. IAF-1, Tab 1. On
November 25, 2018, the appellant amended his appeal
alleging that he was also denied differential pay pursuant
to 5 U.S.C. § 5538(a) and 22 days of military leave
Mr. Washington spoke to the appellant on March 16, 2012, about his
training. IAF-2, Tab 35 at 31. Although the appellant told Mr.
Washington that he did not think Mr. White could look at his
performance objectively, he was unable to provide any examples
where Mr. White had not done so. Id.
9
15a
pursuant to 5 U.S.C. § 6323(b), while on active duty. IAF1, Tab 21.
The Board has jurisdiction over this appeal
In order to establish Board jurisdiction over a
USERRA appeal, the appellant must: (1) show that he
performed duty in a uniformed service of the United
States or is otherwise covered by 38 U.S.C. § 4311(a); and
(2) nonfrivolously allege that he was subjected to one of
the actions listed at 38 U.S.C. § 4311(a), such as denial of
any benefit of employment, for one of the reasons listed at
section 4311(a). See 38 U.S.C. § 4311(a); Sheehan v.
Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir.
2001); Williams v. Department of the Air Force, 97
M.S.P.R. 252, ¶¶ 2, 10 (2004); Muse v. U.S. Postal Service,
82 M.S.P.R. 164, ¶ 12 (1999). A claim of discrimination
under USERRA should be broadly and liberally
construed in determining whether it is nonfrivolous.
Williams, 97 M.S.P.R. 252, ¶ 10. I previously found that
the Board has jurisdiction over this appeal because the
appellant has shown that (1) he performed a duty in a
uniformed service of the United States; and (2) has
nonfrivolously alleged that he was subjected to one of the
actions listed in USERRA. See 38 U.S.C.A. § 4311(a) and
(b); IAF-2, Tab 61.
Applicable Law
Once jurisdiction is established, the appellant must
prove by preponderant evidence that he was denied a
benefit of employment or discriminated against due to his
military service. See 38 U.S.C. §4311(a). A preponderance
of the evidence is the degree of relevant evidence that a
reasonable person, considering the record as a whole,
would accept as sufficient to find that a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
To establish discrimination based on his military service,
16a
the appellant must show that his status or military service
was a “substantial or motivating factor” in the agency’s
action. See Sheehan v. Department of the Navy, 240 F.3d
at 1013. A substantial or motivating factor is a factor that,
although not necessarily the main cause, played a part in
producing the particular result. Id. Uniformed service is
a motivating factor if the agency relied on, took into
account, considered, or conditioned its decision to act or
not to act on an appellant’s uniformed service. See
Erickson v. United States Postal Service, 571 F.3d 1364,
1368 (Fed. Cir. 2009). If the appellant meets this
requirement, the agency then has the opportunity to come
forward with evidence to show, by a preponderance of the
evidence, that it would have taken the action anyway, for
a valid reason. See Sheehan, 240 F.3d at 1013-14.
Discriminatory motivation under USERRA may be
established by direct evidence or reasonably inferred
from a variety of factors. See Sheehan, 240 F.3d at 1014;
McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 20
(2013). These factors include proximity in time between
the employee’s military activity and the adverse
employment action, inconsistencies between the
proffered reason and other actions of the employer, an
employer’s expressed hostility towards employees
protected by USERRA together with the knowledge of
the employee’s military activity, and disparate treatment
of certain employees compared to other employees with
similar work records or offenses. Sheehan, Id. An
essential element of a USERRA discrimination claim is
“that the contested agency decision was based on an
improper motivation.”
The term ‘benefit of employment’ is broadly
interpreted and includes military leave benefits (such as
differential pay). See Yates v. Merit Systems Protection
Board, 145 F.3d 1480, 1484-85 (Fed. Cir. 1998);
17a
Pucilowski v. Department of Justice, 498 F.3d 1341, 1344
(Fed. Cir. 2007). The Board also has jurisdiction over
employees who are not covered by 5 U.S.C. § 6323, where
the employee is covered by an agency rule that confers a
military benefit similar to 5 U.S.C. § 6323. See Pratt v.
Department of Transportation, 103 M.S.P.R. 111, 10
(2006). In such a case, the Board has the authority to order
compensation for any resulting lost wages and benefits.
See 38 U.S.C. § 4324(c); Dombrowski v. Department of
Veterans Affairs, 102 M.S.P.R. 160, ¶ 11-14 (2006).
An absent employee is entitled to differential pay if
(1) he is performing active duty under a provision of law
referred to in section 101(a)(13)(B) of title 10; (2) he is
entitled to reemployment rights under USERRA; and (3)
he is not otherwise receiving pay from his civilian position.
See 5 U.S.C. §5538(a), (b). Section 101(a)(13)(B), contains
the definition of “contingency operations” as the call or
order to “active duty of members of the uniformed
services under section 688, 12301(a), 12302, 12304, 12304a,
12305, or 12406 of this title . . . or any other provision of
law during a war or during a national emergency declared
by the President or Congress.” In addition, a qualified
employee performing full-time military service is entitled
to 22 workdays of leave when called to active duty to
support a contingency operation. 5 U.S.C. § 6323(b).
The appellant has failed to show that he was subject to a
hostile work environment due to his military service.
In his appeal, the appellant alleges that, from
December 2008 until February 2017, he was subjected to
a hostile work environment based on his military service
in violation of USERRA. IAF-2, Tab 61 (Order and
Summary of Prehearing Conference); HT-1 at 6. The
Board has recognized that a hostile work environment is
a cognizable denial of a benefit of employment under
18a
USERRA. Petersen v. Department of Interior, 71
M.S.P.R. 227, 235 (1996); 38 U.S.C. § 4303(2). To establish
such a claim, an employee must show (1) a pattern of
ongoing and persistent harassment severe enough to alter
the conditions of employment; (2) prove that his
workplace was both objectively and subjectively
offensive; and (3) show that any harassment took place on
account of his protected status as a military service
member. Kitlinski v. Department of Justice, 123
M.S.P.R. 41, ¶ 18 (2015), vacated in part on other grounds,
Kitlinski v. Merit Systems Protection Board, 857 F.3d
1374, 1381 (Fed. Cir. 2017) (citing 11 Title VII precedent
as a useful framework for assessing USERRA hostile
work environments).
When determining whether an objectively hostile
work environment exists, the totality of the circumstances
is to be considered, including the frequency, severity, and
offensiveness of the allegedly discriminatory conduct,
whether the conduct was physically threatening or
humiliating, and whether it unreasonably interfered with
an employee's work performance. See Patterson v.
County of Oneida, 375 F.3d 206, 227 (2d Cir. 2004)
(alterations and internal quotation marks omitted). In
general, the actions taken by the agency “must be more
than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive.” Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry
v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).
The appellant alleges that the agency engaged in a
pattern and practice of harassment based on his military
service by, among other things, demanding that he
provide military orders before performing military
service (for periods of less than 31 days); calling his
military command demanding that they verify his military
status; harassing the appellant about his military service
19a
obligations; forcing him to perform military service on his
days off resulting in him having to work 12 consecutive
work days; changing his regular days off to show him as
being absent without leave when he was performing
military service; requiring him to perform 80 additional
hours of training before getting certified; and conducting
his certification check on Memorial Day weekend in 2010
for over four hours (when the air traffic was particularly
busy due to the holiday weekend). IAF-1, Tab 1; IAF-2,
Tab 61. The appellant also alleges that this harassment
led to a delay in him getting fully certified as an ATC, and
as a result delayed promotions he would otherwise have
been entitled to. There are two specific time periods at
issue here – the appellant’s time at ZNY and his time at
MYR.10
1. ZNY
Although the appellant testified that he left ZNY due
to the work environment there, the testimony and
evidence presented did not establish that the appellant’s
treatment there was sufficiently severe or pervasive to
establish a hostile work environment or that any
treatment of him was on account of his military service.
Rather, the appellant’s testimony focused on a couple of
incidents that occurred during his three years there.
Specifically, the appellant testified about an issue with his
schedule where the Operations Manager, Mr. Lerch, put
him on the schedule when he was supposed to be on
military leave. HT-1 at 22, 24 (Feliciano). According to the
appellant, an unidentified friend told him that Mr. Lerch
had not approved his military leave for this time period.
Id. After finding this out, the appellant was able to have
I find it appropriate to consider these two time periods separately
because they involve different supervisors, and there is no evidence
that they colluded in their treatment of the appellant.
10
20a
his schedule changed to reflect his military leave status by
Walter Englehart.11 The appellant testified that when he
returned from military duty, Mr. Lerch punched his
shoulder and yelled at him for having his schedule
changed without going through him. Id. at 23, 27- 28. The
appellant also testified that he heard from another coworker, someone named Kravitz, they were trying to get
rid of him, so he talked to friends who suggested he
transfer, which he did.12 Id.
Mr. Lerch testified that he did not specifically recall
the incident regarding the appellant’s leave, but he denied
ever punching the appellant’s shoulder. HT-2 at 22-23.
Mr. Lerch also testified that, as Operations Manager, it
would not have been his decision to get rid of the
appellant, rather his training team would have made that
decision. Nevertheless, he testified that he did not try to
get rid of the appellant while he was at ZNY. Id. at 23.
I found the testimony of Mr. Lerch to be more
credible than the appellant’s testimony regarding what
occurred at ZNY for several reasons. Both the appellant
and other witnesses testified that it was the responsibility
of the supervisor on duty to approve leave and place it on
the schedule, not the Operations Manager. HT-1 at 34
(Feliciano). As a result, Mr. Lerch would not have been
the person approving the appellant’s leave, so I found the
appellant’s testimony regarding this incident contrived.
On the other hand, Mr. Lerch’s testimony that the
appellant’s retention was up to his training team was
Mr. Englehart passed away prior to the hearing, so he was not a
witness. HT-2 at 22 (Lerch).
11
The appellant also testified that he spoke to the manager of the
ZNY facility, a Mr. Lacata, who told him he was “aware of what was
going on.” HT-1 at 29 (Feliciano). Mr. Lacata was not called as a
witness at the hearing.
12
21a
consistent with the record and testimony of other
witnesses, detailed below, regarding whether a
Developmental ATC should be retained. More
importantly, the appellant’s testimony regarding his time
at ZNY (and his belief that his supervisors were trying to
get rid of him) was based upon hearsay from mostly
unidentified individuals, who did not testify at the
hearing. For all of these reasons, I find the appellant
failed to present sufficient evidence that he was subject to
a hostile work environment while at ZNY. I further find
that, even assuming the events occurred as set out by the
appellant, these random occurrences were not sufficiently
severe or pervasive to alter the conditions of his
employment and the evidence does not establish that any
of incidents occurred on account of his military service.
2. MYR
In support of his hostile work environment claim
while at MYR, the appellant alleges that he had frequent
issues with his military service, such as his supervisor
calling his military command to verify his military status,
being required to provide military orders for his military
service, being harassed about his military service, and
issues with his schedule related to his military service.
The appellant further claims a hostile work environment
related to his training and failure to get promoted.
With respect to his military service obligations, the
appellant testified that his relationship with Mr.
Washington was initially good, but changed at some point.
HT-1 at 31 (Feliciano). The appellant claimed that Mr.
Washington repeatedly called his Coast Guard Reserve
Unit about his military status. HT-1 at 37-38 (Feliciano).
His shipmates joked that “his babysitter” was calling. Id.
at 38. The appellant testified that when he had military
duty, he would tell the supervisor on duty and “they would
22a
just put in in the schedule.” HT-1 at 34. Mr. Washington
required him to show his military orders when he had drill
weekends.13 The appellant testified that, at some point,
Mr. Washington accused him of falsifying paperwork due
to the dates on the orders but told him that he would
“push it under the rug.”14 HT-1 at 37 (Feliciano).
The appellant testified about an incident in 2012
where he claims Mr. Washington called the Federal Law
Enforcement Training Center (FLETC), where he was
attending a course, and told military command that he did
not have permission to attend the training. HT-1 at 65-66.
According to the appellant, Mr. Washington yelled at him
for leaving without permission. Id. The appellant testified
that “a friend” from work called him and told him that Mr.
White was planning his termination, and that his trainers
Joel Johnson and John Williams planned to pull the plug
on him. Id. at 66.
Mr. Washington denied requiring the appellant to
submit orders for his monthly guard duty or accusing him
of falsifying written orders. HT-1 at 227- 228
(Washington). Mr. Washington testified that one time in
2011, the appellant left for military duty and management
at the facility did not know that he was leaving. According
to Mr. Washington, Mr. White had planned for the
appellant to do his required monthly skills check, so he
called the appellant’s commanding officer to see if the
agency could get notification before the appellant went on
The appellant testified that he did not have orders for drill
weekends, so he had to have some made specifically for this purpose.
HT-1 at 34 (Feliciano).
13
While the appellant also testified to regular conversations with his
Master Chief about his issues at work, he did not identify this
individual by name or call him as a witness at the hearing, so I give
little weight to these alleged conversations.
14
23a
military duty.15 According to Mr. Washington, the
appellant’s commanding officer told him that the
appellant should have notified him 30 days before he left
on military leave. HT-1 at 229-230 (Washington). Mr.
Washington testified that he contacted the appellant’s
commanding officer a second time because the agency did
not have any military orders for the appellant, and the
human resource’s office needed them for his time and
attendance, but this was not for a weekend drill. He also
called a couple of times to get military orders at the
request of the agency’s human resources office. HT-1 at
230-231 (Washington).
The record contains evidence that supports Mr.
Washington’s testimony. Specifically, a memorandum
written by Mr. White indicating that the appellant did not
receive his monthly skills check in October of 2011, due to
his military leave. See IAF-2, Tab 33 at 37. While the
appellant testified that he believed this memorandum
reflected military animus, Mr. White testified that he
wrote the memorandum to document the file so that no
one could question why a skills check was not done in
October of 2011. HT-1 at 61 (Feliciano); at 160-61, 168
(White).
I find the testimony and record fails to support the
appellant’s contention that Mr. Washington repeatedly
called the appellant’s reserve command. Rather, it
appears he called the appellant’s command when the
appellant failed to keep his training team advised of his
absences or to ensure the appellant’s time and attendance
It appears that the appellant would often leave on military duty
without informing Mr. White or his training team of his absence. Mr.
White testified that he felt the appellant should have informed him of
his military absences because he was a member of his training team.
HT-1 at 200.
15
24a
was properly documented. While the appellant argues
that the agency could not require him to submit
documentation for military leave of less than 31 days, I
have found nothing to support his assertion. The appellant
points to 20 U.S.C. § 1002.121 to support his position but
this regulation applies to reemployment under USERRA,
which is not the issue here.16 See 20 C.F.R. § 1002.121. In
any event, there are reasons an agency might require
military orders for periods of less than 31 days, such as
ensuring accurate time and attendance. I do not find the
agency’s request for any such documentation to be
unlawful or to constitute harassment.
The appellant next argues that the agency required
him to perform additional hours of training before
certifying him, conducted his certification test ride on
Memorial Day weekend in 2012, and delayed promoting
him on account of his military service. The appellant
testified that his union representative, Jim McCullum,
told him that his supervisors felt his military obligations
were interfering with his training.17 HT-1 at 33. When Mr.
White took over as his supervisor, the appellant testified
that he refused to certify him for the Local Control
position, even though his trainers recommended he be
certified. HT-1 at 40 (Feliciano Testimony). Mr. White
then assigned him 80 hours of extra training which the
appellant felt he did not need. Id. at 41-42. The appellant
testified that he believe Mr. White’s animosity towards
This regulation, promulgated by the Department of Labor, does not
technically apply to the Federal government. See 20 C.F.R. Part 1002.
Section 1002.121 states documentation is required in connection with
an application for reemployment when the period of military service
exceeds 30 days.
16
This testimony was contradicted by Mr. White, who testified that
he did not believe the appellant’s military service was interfering with
his training. HT-1 at 190.
17
25a
him was due to his military service, in part, because he
once yelled at the appellant for getting his leave approved
through a different supervisor instead of him. HT-1 at 41
(Feliciano). The appellant also testified that Mr. White
suggested that his military duty might be interfering with
his training and progression. HT-1 at 33, 42-43
(Feliciano).
Mr. White denied that he told the appellant that his
trainers were recommending him for tower certification
and the evidence in the record indicates that Mr.
Washington recommended the appellant for additional
training prior to Mr. White taking over as the appellant’s
supervisor. HT-1 at 105, 107 (White); Id at 216
(Washington); IAF-2, Tab 32 at 44. While the appellant
argues that the additional hours of training were in
retaliation for his military service, it is clear from the
ample evidence in the record and testimony of witnesses
that the appellant was struggling with certain aspects of
his training. For example, John Williams, who was
assigned to the appellant’s radar training team, testified
that the appellant had difficulties with separation and
control instructions and although he received skills
enhancement training, the issues still persisted. HT-2 at
37-38 (Williams).
At the point the appellant’s training was suspended
in November 2011, he had been having issues with
directives, scanning the area, and his speech rates. Id. at
43-44 (Williams); see also IAF-2, Tab 38 at 45-46, Tab 39
at 12-13; Tab 41 at 35-36 (training report documenting
appellant’s issues with working speed, equipment
capabilities, phraseology on April 7, 2009). Another of the
appellant’s training instructors, Joel Johnson, testified
that the appellant was unable to make quick decisions and
lacked control judgment. HT-2 at 59-60 (Johnson).
According to Mr. Johnson, the appellant’s training was
26a
suspended due to continuing problems with decision
making and separation.18 Id. at 64. Mr. Johnson testified
that Mr. White suspended the appellant’s training due to
his lack of progress, and that he agreed with it. Id. at 6970.
Another area of contention for the appellant was his
radar training which was to take place at a training facility
in Oklahoma City.19 According to the appellant, radar
training was a month-long course and he testified that he
wanted to break the course into two two-week segments,
so he would not have to recertify upon returning to MYR,
but the agency would not allow him to do that even though
other employees had been allowed to break up their
training. HT-1 at 50-51 (Feliciano). Mr. White credibly
testified that MYR did not have control over when the
appellant went to radar training because the training
dates were set by Oklahoma City. Id at 140 (White); see
also HT-1 at 220 (Washington testifying that dates of
training are set by Oklahoma City). Mr. Washington
testified that once a Developmental ATC certifies in the
Tower, and works there for a week or two, they attend the
next available radar class. HT-1 at 221 (Washington).
The appellant also alleged that the agency forced him
to perform a certification test (known as a check ride) on
Memorial Day weekend in 2010, a time period when MYR
was particularly busy. He also complained about the tasks
he was required to do during that test by Mr. White. A
check ride occurs when a supervisor believes a trainee is
Although the appellant alleged that he was being treated
differently, Mr. Johnson testified that it was not unusual for a
Developmental ATC to receive skill enhancement training. HT-2 at
67-68.
18
The appellant attended radar training in August of 2010. IAF-2,
Tab 41 at 16.
19
27a
ready to work a position on their own and watches them
perform the position for a period of time [in order to
certify them in the position]. HT-1 at 44 (Feliciano). The
appellant testified that a check ride usually lasted for 45
minutes but his check ride was conducted over two days
and was four hours long. Id. Although the appellant
passed the check ride, he testified that he thought Mr.
White was trying to fail him by making it extra hard. HT1 at 45 (Feliciano Testimony).
Mr. White testified that the appellant was given a
skill check on May 30, 2010, for one hour and 29 minutes
for the Local Control and Cab Controller positions, an
assertion that is supported by the training record. HT-1
at 127-128; IAF-2, Tab 33 at 9-10. Although the appellant
testified that his check ride was over four hours long, the
documentation shows that on May 30, 2010, the appellant
had a skill check. IAF-2, Tab 33 at 9-10. On May 31, 2010,
Mr. White conducted the appellant’s check ride, which he
passed. Id.; Tab 41 at 17-18; HT- 1 at 130-131. The training
record indicates the check ride took 2 hours and 2
minutes. HT-1 at 131; IAF-2, Tab 41 at 17, box 7.
While the appellant complained that his check ride
was conducted on Memorial Day, he passed the test and
was certified. I see no problem with conducting a check
ride on a busy air traffic day, as the appellant presumably
would have to work busy air traffic days as an ATC, and
the evidence does not lead to a conclusion that his
supervisor tested him on this date to set him up for failure;
rather, the evidence reflects that his supervisor did so to
adequately test his skills. Thus, I cannot conclude there
was anything hostile or inappropriate about conducting
the test on this day and I note the test was about two
hours, a time period that seems reasonable.
28a
The appellant also argued that the agency suspended
his training in retaliation for his military service.
According to the appellant, he returned from military
duty on November 1, 2011, and was immediately required
to take a skills check, which he failed, resulting in his
training being suspended.20 IAF-1, Tab 1. The record
reflects that Mr. White suspended the appellant’s training
on November 6, 2011. HT-1 at 184-185 (White).
After the appellant’s training was suspended, a TRP
was convened to determine the propriety of that action.
Two of the three members of the TRP testified at the
hearing.21 Jeff Soule, a union representative for National
Air Traffic Controllers Association, testified that he voted
against suspending the appellant’s training because he
felt that certain procedures were not followed before
sending the matter to the TRP.22 HT-2 at 79-80 (Soule).
Another TRP member, Carl Brooks, testified that the
TRP reviewed the appellant’s training reports, skills
enhancement trainings, and then voted to suspend his
training. HT- 2 at 86-87 (Brooks). The findings of the TRP
majority are set out in a December 2, 2011 memorandum.
IAF-2, Tab 37 at 28-30. The TRP noted the appellant was
deficient in the areas of separation, control judgment,
methods and procedures, and communication. Id. at 28.
The TRP also noted that the appellant had received
extensive skills enhancement training, and Mr. White had
“utilized available tools to make the training process
The appellant alleged that he had been gone on military duty for
over a month, but the record reflects that he was absent for
approximately two weeks. HT-1 at 171 (White).
20
21
The third member, Walter Hall, could not be located to testify.
Mr. Soule also testified, contrary to the appellant’s belief, that the
TRP only voted one time. HT-1 at 59 (Feliciano); HT-2 at 79 (Soule).
22
29a
successful,” but the appellant had failed to improve or
correct his deficiencies. Id. at 30.
I have considered some of the appellant’s other
allegations, but conclude that they fail to establish he was
subjected to a hostile work environment on account of his
military service. For example, the appellant claims that
when he returned from radar training, he was forced to
recertify on Labor Day weekend, another busy air traffic
time. HT-1 at 51 (Feliciano). This recertification appears
to have occurred shortly after the appellant returned
from radar training and he passed the certification test.
There is no evidence to suggest that the timing of the
certification was intended to harass or create a hostile
work environment for the appellant.
Similarly, the appellant complains that he did not get
his Certificate of Tower Operations (CTO) until
December of 2010, even though he was certified in May of
2010. HT-1 at 52. The appellant has not shown he was
adversely impacted by this delay, as it did not impact his
pay. Id. at 52-53. More importantly, the appellant has not
shown this delay was unusual or a result of his military
service rather than the typical time the agency took for a
license to be sent to an employee. See HT-1 at 135-136
(White)(testifying that there is no set time for an
employee’s CTO to be sent to him and it does not affect
compensation).
In conclusion, I find a preponderance of the evidence
does not support the appellant’s contention that he was
subjected to a hostile work environment on account of his
military service. The testimony of the witnesses and the
record evidence largely contradicts the appellant’s
testimony which seemed to rely on witnesses who were
not identified and did not testify.
30a
With respect to the appellant’s allegations that his
supervisors created a hostile work environment by
demanding military orders and calling his command, I
find the appellant was responsible for creating these
circumstances. Specifically, I find it reasonable for his
supervisors and training team to expect the appellant to
notify them if he was going to be absent from work due to
his military duty, even if it was not necessary for the
purposes of getting his leave approved. As previously
discussed, there was at least one instance where the
appellant failed to take his monthly skills check because
he went on military duty without informing Mr. White of
his upcoming absence. In other instances, it appears that
Mr. Washington called the appellant’s command at the
request of the agency’s human resource’s office.
Regardless, it seems apparent that some of these phone
calls could have been avoided had the appellant provided
the agency with information it needed to ensure his
civilian record properly reflected his military time. With
respect to the appellant’s allegations that he was
subjected to additional training and unreasonable skills
checks, the record supports the proposition that the
appellant was struggling with training, and the additional
training was done to assist him, not to discriminate
against him as he alleges. As far as the skills checks, I
cannot conclude that they were scheduled at a time, and
in a manner, to treat the appellant unfavorably based on
his military service. As a result, I find the appellant has
failed to establish that he is entitled to corrective action
and his request for corrective action is, therefore, denied.
The appellant is not entitled to differential pay.
In his appeal, the appellant also seeks corrective
action alleging that the agency improperly denied him
differential pay while he was on leave performing military
duty for the years 2012 through 2017. IAF-1, Tab 21. The
31a
purpose of differential pay is to ensure that a Federal
employee called to active duty does not receive a
reduction in basic pay during that time period. 5 U.S.C. §
5538(a); Adams v. Department of Homeland Security, 3
F. 4th 1375, 1377 (Fed. Cir. 2021). Differential pay is
required only if (among other things) the employee was
ordered to active duty to for a contingency operation
which is defined in section 101(a)(13)(B) of title 10. Id.
Section 101(a)(13)(B) defines the term “contingency
operation” to include a call or order to active duty “under
section 688, 12301(a), 12303, 12304, 12304a, 12305, or
12406 of this title . . . or any other provision of law during
a war or during a national emergency declared by the
President or Congress.”23 10 U.S.C. § 101(a)(13)(B). An
absent employee is entitled to differential pay if (1) he is
performing active duty under a provision of law referred
to in § 101(a)(13)(B); (2) he is entitled to reemployment
rights under USERRA; and (3) he is not otherwise
receiving pay from his civilian position. 5 U.S.C. § 5538(a),
(b). For the time periods set forth below, there is no
dispute that the appellant met prongs (2) and (3). Thus,
the appellant would be entitled to differential pay if he
served pursuant to a call to active duty that meets the
statutory definition of contingency operation. Adams, 3
F.4th at 1378.
There is no dispute that the appellant did not receive
differential pay for most of the time he was on military
leave during the time period at issue in this appeal. IAF4, Tab 17 at 22. Between 2012 and 2017, the appellant was
on military duty from July 9, 2012, through March 21,
2014; and from March 29, 2014, until February 5, 2017.
IAF-2, Tab 28 at 48. The appellant was paid differential
There is no dispute that the omitted sections § 101(a)(13)(B) do not
apply to the facts of this case. See 10 U.S.C. § 101(a)(13)(B).
23
32a
pay for his military duty from July 9, 2012, through
September 20, 2012.24 HT-1 at 88 (Feliciano).
The appellant testified at the hearing that he did not
request differential pay or submit his military leave and
earnings statement for any other time period. HT-1 at 8788 (Feliciano). The agency argued that the appellant did
not comply with agency policy because he did not submit
his military leave and earnings statements, and therefore
is not entitled to differential pay for the remainder of the
time in dispute. The agency’s policy requires an employee
to timely submit documentation required to get reservist
differential pay. See IAF-2, Tab 40 at 20 (Human
Resources Policy Manual (HRPM), Volume 3: Premium
Pay and Allowance).
The relevant issue here is whether the appellant was
performing active duty under a provision of law referred
to in § 101(a)(13)(B). In Adams v. Department of
Homeland Security, 3 F.4th 1375 (Fed. Cir. 2020), the
Federal Circuit stated that an employee is entitled to
differential pay only when he is directly called to serve in
a contingency operation. Adams, 3 F.4th 1375, 1379
(distinguishing this requirement from 5 U.S.C. § 6323(b)
which provides 22 days of military leave to employees
called to active duty in support of a contingency
operation). To determine if the appellant was directly
called to serve in a contingency operation, the starting
place is the appellant’s military orders.
The appellant’s initial military orders stated that he
was being called to active duty from July 9, 2012, until
September 30, 2012, pursuant to 10 U.S.C. § 12302, in
In support of this, the agency has submitted an Earnings and Leave
Statement for pay date October 2, 2012, that shows he received
Reservist Differential Pay of $1,928.66, though the exact timeframe
covered is not specified. IAF-2, Tab 31 at 17.
24
33a
support of a DOD contingency operation, specifically
Expeditionary SPOE. IAF-2, Tab 25 at 15. Although §
12302 is not one of the enumerated sections in 10 U.S.C. §
101(a)(13)(B), the appellant’s orders stated that he would
be supporting a contingency operations and the agency
paid him differential pay for this time period.
The appellant’s orders, referenced above, were
extended until July 8, 2013. IAF-2, Tab 24 at 25.
Thereafter, from July 9, 2013, to September 30, 2013, the
appellant’s military orders stated that he was being called
up under 10 U.S.C. § 12301(d), to support Operation Iraqi
Freedom and Operation Enduring Freedom. IAF-2, Tab
24 at 19-21. From October 1, 2013 to March 28, 2014, the
appellant’s military orders stated that he was being called
to active duty under 10 U.S.C. § 12301(d) to support a
contingency operation, specifically Operation Iraqi
Freedom. IAF-2, Tab 24 at 14-15. The appellant was
released from active duty and returned to work on March
21, 2014, but was reactivated on March 29, 2014. I was
unable to find any military orders in the record covering
the time period from March 21, 2014, until April 28, 2014.
From April 29, 2014, until September 30, 2014, the
appellant’s military orders stated that he was being called
to active duty, pursuant to 10 U.S.C. § 12301(d), to support
a contingency operation, specifically Operation Iraqi
Freedom and Operation Enduring Freedom. IAF-2, Tab
30 at 33-34.
Beginning on October 1, 2014, the appellant’s military
orders indicated that he was being placed on reserve
medical hold for medical treatment pursuant to 10 U.S.C.
§ 12301(h). IAF-4, Tab 4 at 27. Section 12301(h) permits
the Secretary of Defense to order a reserve member, with
their consent, to active duty for the purpose of receiving
medical care, among other things. These orders were
extended several times in order for the appellant to
34a
receive medical treatment. The appellant remained in
active duty for medical treatment until February 6, 2017,
when he returned to the agency.25 IAF-4, Tab 4 at 12;
IAF-2, Tab 22 at 182 (SF-50, Notification of Personnel
Action, form).
Based on the above, the appellant’s military service
can be divided into two time periods. The first time period
is from October 1, 2012, until September 30, 2014, where
the appellant’s military orders indicated he was activated
in support of contingency operations. The second time
period is from October 1, 2014, until February 3, 2017,
when the appellant was called to active duty for medical
reasons.
Turning to the first period of time, the appellant’s
military orders indicated that he was activated in support
of a contingency operation pursuant to either § 12302 or §
12301(d) of title 10 U.S.C. Neither of these sections are
specifically enumerated in 10 U.S.C. § 101(a)(13)(B). In
Adams v. Department of Homeland Security, the
Federal Circuit stated that it is not sufficient for the
See IAF-4, Tab 4 at 7-9; IAF-2, Tab 30 at 26-28 (extending military
duty from February 1, 2015 to April 15, 2015); IAF-2, Tab 30 at 19;
IAF-4, Tab 4 at 11 (amending the appellant’s orders until June 15,
2015); IAF-4, Tab 4 at 13; IAF-2, Tab 29 at 10 (extending the orders
until September 30, 2015); IAF-2, Tab 29 at 47 (placing the appellant
on medical hold from December 2, 2015 until January 15, 2016); IAF2, Tab 29 at 41-42 (extending medical hold until April 16, 2016); IAF4, Tab 4 at 10 (further extending medical hold until June 30, 2016);
IAF-4, Tab 4 at 18 (amending the appellant’s orders to end on
September 30, 2016); IAF-4, Tab at 4-6; IAF-2, Tab 29 at 16-18
(further extending medical hold until December 15, 2016); IAF-4, Tab
4 at 14; IAF-2, Tab 29 at 11-13 (extending medical hold until February
3, 2017. There are no orders in the record for the period of time from
October 1, 2015, until December 1, 2015. I assume for the purposes of
this decision that the appellant was on medical hold during this time
period as his orders before and after this time period reflect that.
25
35a
claimant’s orders to state that they are being activated in
support of a contingency operation for the purpose of
proving entitlement to differential pay. Adams, 3 F.4th at
1379. Rather, the individual must show that they were
directly called to serve in a contingency operation. Id.
While the appellant’s orders for this first period of
time did not indicate he was being activated under an
enumerated section of 10 U.S.C. § 101(a)(13)(B), they
indicated that his activation was in support of a
contingency operations. As indicated above, the court in
Adams found supporting a contingency operation
insufficient; rather direct involvement was required.
Adams, id. at 1379. The appellant has failed to present
any evidence that he was called to directly serve in a
contingency operation, as he has presented no evidence of
what he did while on active duty with the U.S. Coast
Guard during this time period.
In addition, starting on July 9, 2013, the appellant’s
orders indicated he was being called to active duty under
10 U.S.C. § 12301(d). Section 12301(d) allows the
Secretary of Defense to order a reserve member to active
duty “with the consent of that member.” In Adams, the
court found that service under § 12301(d) was voluntary
duty that did not necessarily qualify for differential pay
under 5 U.S.C. § 5538(a), in the absence of evidence the
service member was directly involved in a contingency
operation. See Adams, 3 F.4th at 1380 (quoting OPM
guidance stating that “qualifying active duty does not
include voluntary active duty under 10 U.S.C. §
12301(d)”). The appellant has presented no evidence that
he was directly involved in a contingency operation during
his service here.
Turning to the second period of time when the
appellant was called to active duty for medical reasons, his
36a
orders specifically stated that he was being called
pursuant to 10 U.S.C. § 12301(d). As indicated, above, this
service does not generally qualify as “active duty” for the
purposes of receiving differential pay, and the appellant
has presented no evidence he was directly involved in a
contingency operation at the time he was receiving
medical treatment. While the appellant has argued that
his service qualifies as a contingency operation under the
“any other provision of law during a declared national
emergency” section of 10 U.S.C. § 12301(d), the Federal
Circuit rejected this argument in Adams, finding that it
could not conclude that this section, which covers
voluntary duty, was included in the phrase “any other
provision of law during a war or national emergency.”26
Adams, 3 F.4th at 1380. OPM’s guidance explains that
“[t]he term ‘contingency operation’ means a military
operation that is designated by the Secretary of Defense
as an operation in which members of the armed forces are
or may become involved in military actions, operations, or
hostilities against an enemy of the United States or
against an opposing military force.” See Id. at 22. As
indicated, above, although the agency has its own
personnel system, I find OPM’s guidance instructive
In Adams, the Federal Circuit noted that its reading of § 5538(a)
was consistent with the Office of Personnel Management’s (OPM)
guidance which states, “qualifying active duty does not include
voluntary active duty under 10 U.S.C. § 12301(d).” Adams, at 1380,
citing, OPM Policy Guidance Regarding Reservist Differential under
5 U.S.C. §5538 at 18 (available at https://www.opm.gov/policy-dataoversight/pay-leave/payadministration/reservist-differential/policy
guidance.pdf. While the agency is not bound by OPM guidance on this
matter as it has its own policy on differential pay, I find OPM’s
guidance instructive as the agency was required to consult with OPM
in developing its procedures on this issue and the agency policy cites
OPM’S guidance as a reference. See 5 U.S.C. § 5538(e)(2); IAF-2, Tab
41 at 40 (section m).
26
37a
particularly because the agency was required by §
5538(e)(2) to consult with OPM in prescribing the
procedures to ensure that its employees received the
rights under that section.
Accordingly, I find the appellant’s period of service
reflected above does not qualify as a “contingency
operation” as required by 5 U.S.C. § 5538(a). The
appellant therefore, is not entitled to differential pay.
Based on this finding, I find it unnecessary to address the
agency’s argument that the appellant failed to comply
with the agency’s policy on differential pay by failing to
timely request it. The appellant’s request for corrective
action is denied as he failed to show by preponderant
evidence that he was directly involved in a contingency
operation during the time at issue in this appeal.
The appellant is not entitled to 22 Days of
military leave for the years 2012-2017.
In his appeal, the appellant alleges that he was denied
22 days of military leave in violation of 5 U.S.C. § 6323(b).
The parties stipulated that the appellant’s request for 22
days of military leave occurred during a time when he was
called to active duty in support of a contingency operation,
but the agency argues that the appellant is not entitled to
these days because he failed to comply with agency policy
for requesting military leave.27 HT-1 at 9 (Stipulation).
There is no dispute that the appellant did not request
Although the parties stipulated that the appellant was called to
active duty to support a contingency operation, I am not bound by this
stipulation to the extent it is not supported by the record evidence.
27
38a
military leave during the time period he was on active
duty.28 HT-1 at 87 (Feliciano).
As a preliminary matter, I note that both parties
reliance on 5 U.S.C. 6323(b) as basis for the appellant’s
entitlement to leave is misplaced. The FAA, as a
component of the Department of Transportation, is
exempt from most of the provisions of Title 5, United
States Code, including section 6323. See 49 U.S.C. §
40122(g)(2); Miller v. Department of Transportation, 86
M.S.P.R. 293, ¶¶ 4-5 (2000); Pratt v. Department of
Transportation, 103 M.S.P.R. 111, ¶¶ 8-10 (2006). As a
result, the leave provisions of 5 U.S.C. § 6323 do not apply
to the agency. Pratt, id. The Board has held, however,
that it has authority, under USERRA, to determine an
agency’s compliance with its own rules that confer a
military benefit. Pratt, 103 M.S.P.R. at ¶10.
The record contains the agency’s HRPM, referenced
above, that applies to reservist differential and was in
effect during the relevant timeframe.29 IAF-2, Tab 41 at
37-47. Subsection 8(b) of this policy covers the use of paid
time off. Id. at 42. This subsection includes a paragraph
dealing with military leave and states, “An employee may
continue to use military leave, as applicable. [See HRPM
LWS 8.4 Military Leave].” Id. It further states that
military leave for contingency operations may be available
for contingency operations. Id. Based on the above, it
appears the agency granted employees military leave in a
The appellant testified that he asked his union representative, Jim
McMillan, about getting 22 days of military leave and Mr. McMillan
told him he did not qualify for it. HT-1 at 68-69 (Feliciano). I find this
does not constitute a request for leave as there is no evidence that the
union representative was one of the appellant’s managers or in a
position to approve the appellant’s leave request.
28
The policy in the record is marked “Cancelled” so it does not appear
to be the agency’s current policy. IAF-2, Tab 41 at 37.
29
39a
similar manner as provided by 5 C.F.R. § 6323(b). The
specific military leave policy, however, was not submitted
into the record by either party so I am unable to
determine the exact requirements of the agency’s policy
for the granting of 22 days of military leave.30
The agency has argued that the appellant was
required to request the leave while he was actually
serving military duty, although it relied on § 6323(b) and
OPM’s implementing regulations to support its position.31
Without the agency’s policy, I cannot determine if the
appellant qualifies for this leave or if his request for leave
was timely. In the absence of the agency’s policy, I am left
to speculate the extent to which the agency followed §
6323(b) and/or OPM’s implementing regulations. I decline
to do so.
Accordingly, I find the appellant has failed to present
a preponderance of the evidence to show that he was
entitled to 22 days of military leave and his request for
corrective action is denied.
The agency failed to prove laches should be
applied to the appellant’s claim.
The agency has argued that laches should be applied
to the appellant’s claims. The equitable defense of laches
bars an action when an unreasonable delay in bringing the
action has prejudiced the party against whom the action
is taken. Brown v. Department of Air Force, 88 M.S.P.R.
I was unable to locate the agency’s military leave policy in the public
domain.
30
Specifically, 5 C.F.R. § 353.208 which states, “An employee
performing service with the uniformed services must be permitted,
upon request, to use any accrued annual leave under 5 U.S.C. 6304,
military leave under 5 U.S.C. 6323, earned compensatory time off for
travel under 5 U.S.C. 5550b, or sick leave under 5 U.S.C. 6307, if
appropriate, during such service.”
31
40a
22, ¶ 5 (2001). The party asserting laches must prove both
the unreasonable delay and show that it was materially
prejudiced or injured by it. Pueschel v. Department of
Transportation, 113 M.S.P.R. 422, ¶ 6 (2010), aff’d, 441
Fed. Appx. 771 (Fed. Cir. 2011), cert. denied, 133 S.Ct. 39
(2012); Nuss v. Office of Personnel Management, 974
F.2d 1316, 1318 (Fed. Cir. 1992). The Board generally
declines to apply the doctrine of laches to appeals brought
pursuant to USERRA because there is no statute of
limitations for filing such a claim. See Brown v.
Department of the Air Force, 88 M.S.P.R. 22, ¶ 6 (2001);
see, Sleevi v. Merit Systems Protection Board, --Fed.Appx.---, 2021 WL 2879045 (July 9, 2021)
(nonpresidential)(finding laches appropriate where the
appellant waited a nearly 13 years to file his USERRA
appeal with no explanation for the lengthy delay).
The agency argues that laches should be applied to
this appeal because it was unable to locate several former
employees to respond to the appellant’s allegations.
Specifically, the agency was unable to locate Walter Hall,
Kenny Gaskin, Steve Kravits, Rick Sealy, Randy Privett,
and Kenneth Blanton.32 HT-2 at 100-102. One of the
witnesses, Walter Engelhart, passed away prior to the
hearing. Given my finding above, i.e., that the appellant
failed to show he was subjected to a hostile work
environment due to his military service, I decline to apply
laches to this appeal.
DECISION
The Appellant’s request for corrective action is
DENIED.
Wendy Beech, a paralegal with the agency, testified regarding her
efforts to locate former employees for the hearing. HT-2 at 100-101
(Beech).
32
41a
FOR THE BOARD:
/s/
Sharon J. Pomeranz
Administrative Judge
NOTICE TO PARTIES CONCERNING
SETTLEMENT
The date that this initial decision becomes final, which
is set forth below, is the last day that the parties may file
a settlement agreement, but the administrative judge
may vacate the initial decision in order to accept such an
agreement into the record after that date. See 5 C.F.R. §
1201.112(a)(4).
NOTICE TO APPELLANT
This initial decision will become final on October 6,
2021, 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.
42a
BOARD REVIEW
You may request Board review of this initial decision
by filing a petition for review. 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 be accomplished at 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.
43a
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 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.
(c) The judge’s rulings during either the course of the
appeal or the initial decision were not consistent with
required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case.
44a
(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 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
45a
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).
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
46a
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 within 60 calendar days of the date this
decision becomes final. 5 U.S.C. § 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 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
47a
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 or EEOC review of cases involving a
claim of discrimination. 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. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017).
If the action involves a claim of 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.
48a
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/CourtWebsi
tes.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 to 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
49a
petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel
practice described in section 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.
50a
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/CourtWebsi
tes.aspx
U.S. MERIT SYSTEMS PROTECTION BOARD
Office of the Clerk of the Board
1615 M Street, N.W.
Washington, D.C. 20419-0002
Phone: 202-653-7200; Fax: 202-653-7130; E-Mail:
mspb@mspb.gov
2022-1219
ATTESTATION
I HEREBY ATTEST that the attached index
represents a list of the documents comprising the
administrative record of the Merit Systems Protection
Board in the appeal of Nick Feliciano v. Department of
Transportation, MSPB Docket No. AT-4324-18- 0287-I-4,
and that the administrative record is under my official
custody and control on this date
on file in this Board
December 16, 2021
Date
Tawanda Williams for
Jennifer Everling
Acting Clerk of the Board
APPENDIX C
NOTE: This order is nonprecedential.
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
___________________
NICK FELICIANO,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
___________________
2022-1219
___________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-18-0287-I-4.
___________________
ON PETITION FOR REHEARING EN BANC
___________________
Before MOORE, Chief Judge, LOURIE, DYK, PROST,
REYNA, TARANTO, CHEN, HUGHES, STOLL,
CUNNINGHAM, and STARK, Circuit Judges.1
PER CURIAM
ORDER
Nick Feliciano filed a petition for rehearing en banc.
A response to the petition was invited by the court and
filed by the Department of Transportation. The petition
was first referred as a petition to the panel that heard the
1
Circuit Judge Newman did not participate.
(51a)
52a
appeal, and thereafter the petition 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 3,
2023.
FOR THE COURT
/s/
October 27, 2023
Date
Jarrett B. Perlow
Clerk of Court
APPENDIX D
5 U.S.C. § 5538
Nonreduction in pay while serving in the uniformed
services or National Guard
(a) An employee who is absent from a position of
employment with the Federal Government in order to
perform active duty in the uniformed services pursuant to
a call or order to active duty under section 12304b of title
10 or a provision of law referred to in section 101(a)(13)(B)
of title 10 shall be entitled, while serving on active duty, to
receive, for each pay period described in subsection (b),
an amount equal to the amount by which—
(1) the amount of basic pay which would
otherwise have been payable to such employee for
such pay period if such employee’s civilian
employment with the Government had not been
interrupted by that service, exceeds (if at all)
(2) the amount of pay and allowances which (as
determined under subsection (d))—
(A) is payable to such employee for that
service; and
(B) is allocable to such pay period.
(b) Amounts under this section shall be payable with
respect to each pay period (which would otherwise apply
if the employee’s civilian employment had not been
interrupted)—
(1) during which such employee is entitled to reemployment rights under chapter 43 of title 38 with
respect to the position from which such employee is
absent (as referred to in subsection (a)); and
(53a)
54a
(2) for which such employee does not otherwise
receive basic pay (including by taking any annual,
military, or other paid leave) to which such employee
is entitled by virtue of such employee’s civilian
employment with the Government.
(c) Any amount payable under this section to an
employee shall be paid—
(1) by such employee’s employing agency;
(2) from the appropriation or fund which would
be used to pay the employee if such employee were in
a pay status; and
(3) to the extent practicable, at the same time and
in the same manner as would basic pay if such
employee’s civilian employment had not been
interrupted.
(d) The Office of Personnel Management shall, in
consultation with Secretary of Defense, prescribe any
regulations necessary to carry out the preceding
provisions of this section.
(e)(1) The head of each agency referred to in section
2302(a)(2)(C)(ii) shall, in consultation with the Office,
prescribe procedures to ensure that the rights under this
section apply to the employees of such agency.
(2) The Administrator of the Federal Aviation
Administration shall, in consultation with the Office,
prescribe procedures to ensure that the rights under
this section apply to the employees of that agency.
(f) For purposes of this section—
(1)
the
terms
‘‘employee’’,
‘‘Federal
Government’’, and ‘‘uniformed services’’ have the
same respective meanings as given those terms in
section 4303 of title 38;
55a
(2) the term ‘‘employing agency’’, as used with
respect to an employee entitled to any payments
under this section, means the agency or other entity
of the Government (including an agency referred to
in section 2302(a)(2)(C)(ii)) with respect to which such
employee has reemployment rights under chapter 43
of title 38; and
(3) the term ‘‘basic pay’’ includes any amount
payable under section 5304.
APPENDIX E
10 U.S.C. § 101
§ 101. Definitions
(a) In general.—The following definitions apply in
this title:
(1) The term “United States”, in a geographic
sense, means the States and the District of Columbia.
[(2) Repealed. Pub.L. 109-163, Div. A, Title X, §
1057(a)(1), Jan. 6, 2006, 119 Stat. 3440]
(3) The term “possessions” includes the Virgin
Islands, Guam, American Samoa, and the Guano
Islands, so long as they remain possessions, but does
not include any Commonwealth.
(4) The term “armed forces” means the Army,
Navy, Air Force, Marine Corps, Space Force, and
Coast Guard.
(5) The term “uniformed services” means—
(A) the armed forces;
(B) the commissioned corps of the National
Oceanic and Atmospheric Administration; and
(C) the commissioned corps of the Public
Health Service.
(6) The term “department”, when used with
respect to a military department, means the
executive part of the department and all field
headquarters,
forces,
reserve
components,
installations, activities, and functions under the
control or supervision of the Secretary of the
department. When used with respect to the
Department of Defense, such term means the
(56a)
57a
executive part of the department, including the
executive parts of the military departments, and all
field headquarters, forces, reserve components,
installations, activities, and functions under the
control or supervision of the Secretary of Defense,
including those of the military departments.
(7) The term “executive part of the department”
means the executive part of the Department of
Defense, Department of the Army, Department of
the Navy, or Department of the Air Force, as the case
may be, at the seat of government.
(8) The term “military departments” means the
Department of the Army, the Department of the
Navy, and the Department of the Air Force.
(9) The term “Secretary concerned” means—
(A) the Secretary of the Army, with respect
to matters concerning the Army;
(B) the Secretary of the Navy, with respect
to matters concerning the Navy, the Marine
Corps, and the Coast Guard when it is operating
as a service in the Department of the Navy;
(C) the Secretary of the Air Force, with
respect to matters concerning the Air Force and
the Space Force; and
(D) the Secretary of Homeland Security,
with respect to matters concerning the Coast
Guard when it is not operating as a service in the
Department of the Navy.
(10) The term “service acquisition executive”
means the civilian official within a military
department who is designated as the service
acquisition executive for purposes of regulations and
58a
procedures providing for a service acquisition
executive for that military department.
(11) The term “Defense Agency” means an
organizational entity of the Department of Defense—
(A) that is established by the Secretary of
Defense under section 191 of this title (or under
the second sentence of section 125(d) of this title
(as in effect before October 1, 1986)) to perform a
supply or service activity common to more than
one military department (other than such an
entity that is designated by the Secretary as a
Department of Defense Field Activity); or
(B) that is designated by the Secretary of
Defense as a Defense Agency.
(12) The term “Department of Defense Field
Activity” means an organizational entity of the
Department of Defense—
(A) that is established by the Secretary of
Defense under section 191 of this title (or under
the second sentence of section 125(d) of this title
(as in effect before October 1, 1986)) to perform a
supply or service activity common to more than
one military department; and
(B) that is designated by the Secretary of
Defense as a Department of Defense Field
Activity.
(13) The term “contingency operation” means a
military operation that—
(A) is designated by the Secretary of
Defense as an operation in which members of the
armed forces are or may become involved in
military actions, operations, or hostilities against
59a
an enemy of the United States or against an
opposing military force; or
(B) results in the call or order to, or retention
on, active duty of members of the uniformed
services under section 688, 12301(a), 12302,
12304, 12304a, 12305, or 12406 of this title,
chapter 13 of this title, section 3713 of title 14, or
any other provision of law during a war or during
a national emergency declared by the President
or Congress.
(14) The term “supplies” includes material,
equipment, and stores of all kinds.
(15) The term “pay” includes basic pay, special
pay, retainer pay, incentive pay, retired pay, and
equivalent pay, but does not include allowances.
(16) The term
committees” means—
“congressional
defense
(A) the Committee on Armed Services and
the Committee on Appropriations of the Senate;
and
(B) the Committee on Armed Services and
the Committee on Appropriations of the House of
Representatives.
(17) The term “base closure law” means the
following:
(A) Section 2687 of this title.
(B) The Defense Base Closure and
Realignment Act of 1990 (part A of title XXIX of
Public Law 101-510; 10 U.S.C. 2687 note).
60a
(C) Title II of the Defense Authorization
Amendments and Base Closure and Realignment
Act (Public Law 100-526; 10 U.S.C. 2687 note).
(18) The term “acquisition workforce” means the
persons serving in acquisition positions within the
Department of Defense, as designated pursuant to
section 1721(a) of this title.
(19) The term “climate resilience” means the
capability to avoid, prepare for, minimize the effect
of, adapt to, and recover from, extreme weather, or
from anticipated or unanticipated changes in
environmental conditions, that do (or have the
potential to) adversely affect the national security of
the United States or of allies and partners of the
United States.
(20) The term “extreme weather” means
recurrent
flooding,
drought,
desertification,
wildfires, thawing permafrost, sea level fluctuation,
changes in mean high tides, or any other weatherrelated event, or anticipated change in environmental
conditions, that present (or are projected to present)
a recurring annual threat to the climate security of
the United States or of allies and partners of the
United States.
(b) Personnel generally.—The following definitions
relating to military personnel apply in this title:
(1) The term “officer” means a commissioned or
warrant officer.
(2) The term “commissioned officer” includes a
commissioned warrant officer.
61a
(3) The term “warrant officer” means a person
who holds a commission or warrant in a warrant
officer grade.
(4) The term “general officer” means an officer of
the Army, Air Force, or Marine Corps serving in or
having the grade of general, lieutenant general,
major general, or brigadier general.
(5) The term “flag officer” means an officer of the
Navy or Coast Guard serving in or having the grade
of admiral, vice admiral, rear admiral, or rear admiral
(lower half).
(6) The term “enlisted member” means a person
in an enlisted grade.
(7) The term “grade” means a step or degree, in
a graduated scale of office or military rank, that is
established and designated as a grade by law or
regulation.
(8) The term “rank” means the order of
precedence among members of the armed forces.
(9) The term “rating” means the name (such as
“boatswain's mate”) prescribed for members of an
armed force in an occupational field. The term “rate”
means the name (such as “chief boatswain's mate”)
prescribed for members in the same rating or other
category who are in the same grade (such as chief
petty officer or seaman apprentice).
(10) The term “original”, with respect to the
appointment of a member of the armed forces in a
regular or reserve component, refers to that
member's most recent appointment in that
component that is neither a promotion nor a
demotion.
62a
(11) The term “authorized strength” means the
largest number of members authorized to be in an
armed force, a component, a branch, a grade, or any
other category of the armed forces.
(12) The term “regular”, with respect to an
enlistment, appointment, grade, or office, means
enlistment, appointment, grade, or office in a regular
component of an armed force.
(13) The term “active-duty list” means a single
list for the Army, Navy, Air Force, Marine Corps, or
Space Force (required to be maintained under section
620 of this title) which contains the names of all
officers of that armed force, other than officers
described in section 641 of this title, who are serving
on active duty.
(14) The term “medical officer” means an officer
of the Medical Corps of the Army, an officer of the
Medical Corps of the Navy, or an officer in the Air
Force designated as a medical officer.
(15) The term “dental officer” means an officer of
the Dental Corps of the Army, an officer of the Dental
Corps of the Navy, or an officer of the Air Force
designated as a dental officer.
(16) The term “Active Guard and Reserve”
means a member of a reserve component who is on
active duty pursuant to section 12301(d) of this title
or, if a member of the Army National Guard or Air
National Guard, is on full-time National Guard duty
pursuant to section 502(f) of title 32, and who is
performing Active Guard and Reserve duty.
(c) Reserve components.—The following definitions
relating to the reserve components apply in this title:
63a
(1) The term “National Guard” means the Army
National Guard and the Air National Guard.
(2) The term “Army National Guard” means that
part of the organized militia of the several States and
Territories, Puerto Rico, and the District of
Columbia, active and inactive, that—
(A) is a land force;
(B) is trained, and has its officers appointed,
under the sixteenth clause of section 8, article I,
of the Constitution;
(C) is organized, armed, and equipped wholly
or partly at Federal expense; and
(D) is federally recognized.
(3) The term “Army National Guard of the
United States” means the reserve component of the
Army all of whose members are members of the
Army National Guard.
(4) The term “Air National Guard” means that
part of the organized militia of the several States and
Territories, Puerto Rico, and the District of
Columbia, active and inactive, that—
(A) is an air force;
(B) is trained, and has its officers appointed,
under the sixteenth clause of section 8, article I,
of the Constitution;
(C) is organized, armed, and equipped wholly
or partly at Federal expense; and
(D) is federally recognized.
(5) The term “Air National Guard of the United
States” means the reserve component of the Air
64a
Force all of whose members are members of the Air
National Guard.
(6) The term “reserve”, with respect to an
enlistment, appointment, grade, or office, means
enlistment, appointment, grade, or office held as a
Reserve of one of the armed forces.
(7) The term “reserve active-status list” means a
single list for the Army, Navy, Air Force, or Marine
Corps (required to be maintained under section 14002
of this title) that contains the names of all officers of
that armed force except warrant officers (including
commissioned warrant officers) who are in an active
status in a reserve component of the Army, Navy, Air
Force, or Marine Corps and are not on an active-duty
list.
(d) Duty status.—The following definitions relating to
duty status apply in this title:
(1) The term “active duty” means full-time duty
in the active military service of the United States.
Such term includes fulltime training duty, annual
training duty, and attendance, while in the active
military service, at a school designated as a service
school by law or by the Secretary of the military
department concerned. Such term does not include
full-time National Guard duty.
(2) The term “active duty for a period of more
than 30 days” means active duty under a call or order
that does not specify a period of 30 days or less.
(3) The term “active service” means service on
active duty or full-time National Guard duty.
(4) The term “active status” means the status of
a member of a reserve component who is not in the
65a
inactive Army National Guard or inactive Air
National Guard, on an inactive status list, or in the
Retired Reserve.
(5) The term “full-time National Guard duty”
means 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.
(6)(A) The term “active Guard and Reserve duty”
means active duty performed by a member of a
reserve component of the Army, Navy, Air Force, or
Marine Corps, or full-time National Guard duty
performed by a member of the National Guard
pursuant to an order to full-time National Guard
duty, for a period of 180 consecutive days or more for
the purpose of organizing, administering, recruiting,
instructing, or training the reserve components.
(B) Such term does not include the following:
(i) Duty performed as a member of the
Reserve Forces Policy Board provided for
under section 10301 of this title.
(ii) Duty performed as a property and
fiscal officer under section 708 of title 32.
(iii) Duty performed for the purpose of
interdiction and counter-drug activities for
which funds have been provided under
section 112 of title 32.
66a
(iv) Duty performed as a general or flag
officer.
(v) Service as a State director of the
Selective Service System under section
10(b)(2) of the Military Selective Service Act
(50 U.S.C. 3809(b)(2)).
(7) The term “inactive-duty training” means—
(A) duty prescribed for Reserves by the
Secretary concerned under section 206 of title 37
or any other provision of law; and
(B) special additional duties authorized for
Reserves by an authority designated by the
Secretary concerned and performed by them on
a voluntary basis in connection with the
prescribed training or maintenance activities of
the units to which they are assigned. Such term
includes those duties when performed by
Reserves in their status as members of the
National Guard.
(e) Facilities and operations.—The following
definitions relating to facilities and operations apply in
this title:
(1) Range.—The term “range”, when used in a
geographic sense, means a designated land or water
area that is set aside, managed, and used for range
activities of the Department of Defense. Such term
includes the following:
(A) Firing lines and positions, maneuver
areas, firing lanes, test pads, detonation pads,
impact areas, electronic scoring sites, buffer
zones with restricted access, and exclusionary
areas.
67a
(B) Airspace areas designated for military
use in accordance with regulations and
procedures prescribed by the Administrator of
the Federal Aviation Administration.
(2) Range activities.—The
activities” means—
term
“range
(A) research, development, testing, and
evaluation of military munitions, other ordnance,
and weapons systems; and
(B) the training of members of the armed
forces in the use and handling of military
munitions, other ordnance, and weapons
systems.
(3) Operational range.—The term “operational
range” means a range that is under the jurisdiction,
custody, or control of the Secretary of a military
department and—
(A) that is used for range activities, or
(B) although not currently being used for
range activities, that is still considered by the
Secretary to be a range and has not been put to a
new use that is incompatible with range
activities.
(4) Military munitions.—(A) The term “military
munitions” means all ammunition products and
components produced for or used by the armed forces
for national defense and security, including
ammunition products or components under the
control of the Department of Defense, the Coast
Guard, the Department of Energy, and the National
Guard.
(B) Such term includes the following:
68a
(i) Confined gaseous, liquid, and solid
propellants.
(ii) Explosives, pyrotechnics, chemical
and riot control agents, smokes, and
incendiaries, including bulk explosives and
chemical warfare agents.
(iii) Chemical munitions, rockets, guided
and ballistic missiles, bombs, warheads,
mortar rounds, artillery ammunition, small
arms ammunition,
grenades, mines,
torpedoes, depth charges, cluster munitions
and dispensers, and demolition charges.
(iv) Devices and components of any item
specified in clauses (i) through (iii).
(C) Such term does not include the following:
(i) Wholly inert items.
(ii) Improvised explosive devices.
(iii) Nuclear weapons, nuclear devices,
and nuclear components, other than
nonnuclear components of nuclear devices
that are managed under the nuclear weapons
program of the Department of Energy after
all required sanitization operations under
the Atomic Energy Act of 1954 (42 U.S.C.
2011 et seq.) have been completed.
(5)
Unexploded
ordnance.—The
term
“unexploded ordnance” means military munitions
that—
(A) have been primed, fused, armed, or
otherwise prepared for action;
69a
(B) have been fired, dropped, launched,
projected, or placed in such a manner as to
constitute a hazard to operations, installations,
personnel, or material; and
(C) remain unexploded, whether
malfunction, design, or any other cause.
by
(6) Energy resilience.—The term “energy
resilience” means the ability to avoid, prepare for,
minimize, adapt to, and recover from anticipated and
unanticipated energy disruptions in order to ensure
energy availability and reliability sufficient to provide
for mission assurance and readiness, including
mission essential operations related to readiness, and
to execute or rapidly reestablish mission essential
requirements.
(7) Energy security.—The term “energy
security” means having assured access to reliable
supplies of energy and the ability to protect and
deliver sufficient energy to meet mission essential
requirements.
(8) Military installation resilience.—The term
“military installation resilience” means the capability
of a military installation to avoid, prepare for,
minimize the effect of, adapt to, and recover from
extreme weather events, or from anticipated or
unanticipated changes in environmental conditions,
that do, or have the potential to, adversely affect the
military installation or essential transportation,
logistical, or other necessary resources outside of the
military installation that are necessary in order to
maintain, improve, or rapidly reestablish installation
mission assurance and mission-essential functions.
(f) Rules of construction.—In this title—
70a
(1) “shall” is used in an imperative sense;
(2) “may” is used in a permissive sense;
(3) “no person may * * * ” means that no person
is required, authorized, or permitted to do the act
prescribed;
(4) “includes” means “includes but is not limited
to”; and
(5) “spouse” means husband or wife, as the case
may be.
(g) Reference to Title 1 definitions.—For other
definitions applicable to this title, see sections 1 through 5
of title 1.
APPENDIX F
18 U.S.C. § 209
Salary of Government officials and employees
payable only by United States
(a) Whoever receives any salary, or any contribution
to or supplementation of salary, as compensation for his
services as an officer or employee of the executive branch
of the United States Government, of any independent
agency of the United States, or of the District of
Columbia, from any source other than the Government of
the United States, except as may be contributed out of the
treasury of any State, county, or municipality; or
Whoever, whether an individual, partnership, association,
corporation, or other organization pays, makes any
contribution to, or in any way supplements, the salary of
any such officer or employee under circumstances which
would make its receipt a violation of this subsection—
Shall be subject to the penalties set forth in section 216 of
this title.
(b) Nothing herein prevents an officer or employee of
the executive branch of the United States Government, or
of any independent agency of the United States, or of the
District of Columbia, from continuing to participate in a
bona fide pension, retirement, group life, health or
accident insurance, profit-sharing, stock bonus, or other
employee welfare or benefit plan maintained by a former
employer.
(c) This section does not apply to a special
Government employee or to an officer or employee of the
Government serving without compensation, whether or
not he is a special Government employee, or to any person
paying, contributing to, or supplementing his salary as
such.
(71a)
72a
(d) This section does not prohibit payment or
acceptance of contributions, awards, or other expenses
under the terms of chapter 41 of title 5.
(e) This section does not prohibit the payment of
actual relocation expenses incident to participation, or the
acceptance of same by a participant in an executive
exchange or fellowship program in an executive agency:
Provided, That such program has been established by
statute or Executive order of the President, offers
appointments not to exceed three hundred and sixty-five
days, and permits no extensions in excess of ninety
additional days or, in the case of participants in overseas
assignments, in excess of three hundred and sixty-five
days.
(f) This section does not prohibit acceptance or
receipt, by any officer or employee injured during the
commission of an offense described in section 351 or 1751
of this title, of contributions or payments from an
organization which is described in section 501(c)(3) of the
Internal Revenue Code of 1986 and which is exempt from
taxation under section 501(a) of such Code.
(g)(1) This section does not prohibit an employee of a
private sector organization, while assigned to an agency
under chapter 37 of title 5, from continuing to receive pay
and benefits from such organization in accordance with
such chapter.
(2) For purposes of this subsection, the term
‘‘agency’’ means an agency (as defined by section 3701
of title 5) and the Office of the Chief Technology
Officer of the District of Columbia.
(h) This section does not prohibit a member of the
reserve components of the armed forces on active duty
pursuant to a call or order to active duty under a provision
73a
of law referred to in section 101(a)(13) of title 10 from
receiving from any person that employed such member
before the call or order to active duty any payment of any
part of the salary or wages that such person would have
paid the member if the member’s employment had not
been interrupted by such call or order to active duty.
APPENDIX G
EXCERPT OF
DEPARTMENT OF HOMELAND SECURITY
U.S. COAST GUARD DIRECT ACCESS
STANDARD TRAVEL ORDER
JULY 8, 2012
(Full Document Available at C.A. App. 579)
Remarks/Comments/Additional Instructions
Member has been called up under 10 U.S.C. 12302 per
Executive Order 13223, dated September 14, 2001. The
period of service under 10 U.S.C. 12302 is exempt from
the five-year limit as provided in 38 U.S.C. 4312(c)(4)(B).
Reservists recalled under Title 10 USC are currently
ordered to active duty for a maximum period of twelve
consecutive months, unless released sooner, IAW USCG
policy and the provisions of 10 USC 12302.
You are ordered to active duty for a period of less
than 30 days for medical/dental screening and/or care. If
you are not determined to be medically qualified for
deployment, you will be released from active duty and
returned to prior status. If you are determined to be
medically qualified for deployment, you are further
ordered to active duty for a combined period not to exceed
the stated duration of these orders, unless sooner
released by proper authority.
These orders are in support of a DOD contingency
operation. These orders are supporting operation:
Expeditionary SPOE.
This call to Active Duty is in a temporary duty status
(TDY). Members permanent unit remains STA
Shinnecock.
(74a)
APPENDIX H
EXCERPT OF
DEPARTMENT OF HOMELAND SECURITY
U.S. COAST GUARD DIRECT ACCESS
STANDARD TRAVEL ORDER
JUNE 3, 2013
(Full Document Available at C.A. App. 573-75)
Remarks/Comments/Additional Instructions
Member has been called up under 10 U.S.C. 12301(d)
per Executive Order 13223, dated September 14, 2001.
The Secretaries of the Military Departments have each
determined the period of service under 10 U.S.C. 12301(d)
as exempt from the five year limit in 38 U.S.C.
4312(c)(4)(B).
You are ordered to active duty for a period of less
than 30 days for medical/dental screening and/or care. If
you are not determined to be medically qualified for
deployment, you will be released from active duty and
returned to prior status. If you are determined to be
medically qualified for deployment, you are further
ordered to active duty for a combined period not to exceed
the stated duration of these orders, unless sooner
released by proper authority.
These orders are in support of a DOD contingency
operation. These orders are supporting operation:
Operation Iraqi Freedom, Operation Enduring Freedom,
etc.
This call to Active Duty is in a temporary duty status
(TDY). Members permanent unit remains STA
SINNECOCK.
Orders that are issued across fiscal year are subject
to availability of funds and contingency FTE allocations.
(75a)
APPENDIX I
EXCERPT OF
DEPARTMENT OF HOMELAND SECURITY
U.S. COAST GUARD DIRECT ACCESS
STANDARD TRAVEL ORDER
SEPTEMBER 23, 2013
(Full Document Available at C.A. App. 568-70)
Remarks/Comments/Additional Instructions
Member has been called up under 10 U.S.C. 12301(d)
per Executive Order 13223, dated September 14, 2001.
The Secretaries of the Military Departments have each
determined the period of service under 10 U.S.C. 12301(d)
as exempt from the five year limit in 38 U.S.C.
4312(c)(4)(B).
You are ordered to active duty for a period of less
than 30 days for medical/dental screening and/or care. If
you are not determined to be medically qualified for
deployment, you will be released from active duty and
returned to prior status. If you are determined to be
medically qualified for deployment, you are further
ordered to active duty for a combined period not to exceed
the stated duration of these orders, unless sooner
released by proper authority.
These orders are in support of a DOD contingency
operation. These orders are supporting operation:
Operation Iraqi Freedom.
(76a)
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.