882 F.3d 1080
Fed. Cir.2018Background
- Michael J. O’Farrell, an Army Reserve member and DOD civilian attorney, was ordered to active duty under 10 U.S.C. § 12301(d) from April–September 2013 to replace a Navy civilian attorney deployed to Afghanistan.
- By late August 2013 O’Farrell had exhausted his 15 statutory military leave days and most annual leave and requested an additional 22 days under 5 U.S.C. § 6323(b).
- DLA denied the request because his activation orders did not state he was serving "in support of a contingency operation;" OPM/DLA concluded his service was not in support of a contingency operation.
- O’Farrell appealed to the MSPB; an administrative judge denied relief and the full MSPB left that denial as the final decision by deadlock.
- The Federal Circuit reviewed de novo whether § 6323(b) requires that the activation order identify a specific contingency operation and whether O’Farrell’s service satisfied § 6323(b).
- The court reversed, holding that § 6323(b) does not require the order to name a specific contingency and that O’Farrell was entitled to the additional 22 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 5 U.S.C. § 6323(b) requires activation orders to identify a specific contingency operation for entitlement to 22 days additional military leave | O’Farrell: No; statute’s "in support of a contingency operation" is broad and need not appear verbatim in the order — indirect support and any evidence suffice | Government: Yes; orders must identify the specific contingency (or employee must identify which operation) | Court: No. § 6323(b) does not require the order to identify a specific contingency; indirect support suffices |
| Whether O’Farrell’s service qualified as "in support of a contingency operation" during a declared national emergency | O’Farrell: Replacing a civilian attorney deployed to Afghanistan and providing legal support to NSWC constituted support for the contingency operation | Government: His service was only loosely indirect and the record lacks the necessary connection to a declared national emergency operation | Court: O’Farrell’s replacement of a deployed attorney and operational legal work constituted support for a contingency operation; he is entitled to the additional leave |
Key Cases Cited
- BedRoc Ltd. v. United States, 541 U.S. 176 (use plain statutory text first in interpretation)
- Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (interpret terms by ordinary meaning)
- Tartaglia v. Dep’t of Veterans Affairs, 858 F.3d 1405 (Fed. Cir.) (MSPB abuse-of-discretion standard)
- Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir.) (de novo review for legal questions)
- Sebelius v. Cloer, 569 U.S. 369 (textualist inference from Congress’s inclusion/omission)
- Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (mandatory statutory language conveys requirement)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (use legislative history when appropriate)
- Kirkendall v. Dep’t of the Army, 479 F.3d 830 (Fed. Cir.) (ambiguities in benefits statutes construed in beneficiary’s favor)
- Butterbaugh v. Dep’t of Justice, 336 F.3d 1332 (Fed. Cir.) (absence of implementing regulations limits reliance on regulatory guidance)