Case: 22-1561 Document: 26 Page: 1 Filed: 09/22/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`MICHAEL FARIS,
`Petitioner
`
`v.
`
`DEPARTMENT OF THE AIR FORCE,
`Respondent
`______________________
`
`2022-1561
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. SF-4324-21-0370-I-1.
`______________________
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`Decided: September 22, 2022
`______________________
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`MICHAEL FARIS, Prattville, AL, pro se.
`
` DANIEL F. ROLAND, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by BRIAN M.
`BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
`______________________
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`Before MOORE, Chief Judge, HUGHES and STARK, Circuit
`Judges.
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`

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`Case: 22-1561 Document: 26 Page: 2 Filed: 09/22/2022
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`2
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`FARIS v. AIR FORCE
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`STARK, Circuit Judge.
` Michael Faris appeals from an order of the Merit Sys-
`tems Protection Board (“MSPB”) denying his request for
`corrective action. Because we agree with the MSPB’s de-
`termination, we affirm.
`
`I
`Mr. Faris was hired as a civilian employee by the
`United States Air Force (“USAF”) in 2012 and continued in
`that position until his resignation in 2013. SAppx. 7-9.1 In
`2014, Mr. Faris returned to his position and later that year
`he was promoted. SAppx. 10-12.
`During his civilian service, Mr. Faris was intermit-
`tently put on leave without pay (“LWOP”) status while he
`served in the military. See, e.g., SAppx. 13-48. This hap-
`pened several times between April 2016 and March 2020.
`Id. In addition, between April 3 and April 7, 2017, Mr.
`Faris participated in inactive duty training with the Na-
`tional Guard. SAppx. 118-23; Appx. 7.2
`As the MSPB explained, “[o]rdinarily, an employee’s
`retirement contributions are funded through deductions
`from his pay. 5 U.S.C. § 8422. No deductions are made
`when an employee is in a nonpay status, such as military
`LWOP.” Appx. 4. Mr. Faris wanted to continue to receive
`retirement credit when he was on LWOP status. The Fed-
`eral Employees’ Retirement System (“FERS”) requires that
`“to receive credit for this period of military service toward
`civilian retirement,” an employee on LWOP status must
`pay a military deposit. SAppx. 51; see also Appx. 2.
`
`
`“SAppx.” citations refer to the appendix filed con-
`1
`currently with Respondent’s brief.
`2
`“Appx.” citations refer to the appendix filed concur-
`rently with Petitioner’s brief.
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`

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`Case: 22-1561 Document: 26 Page: 3 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`3
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`Therefore, Mr. Faris initially paid a military service de-
`posit for each period he was on LWOP from his civil-service
`job. See SAppx. 55-62.
`In 2020, after having paid the deposit several times
`over the course of years, Mr. Faris changed tack and filed
`a Form 1010 with the Department of Labor, alleging that
`the deposit requirement violated the Uniformed Services
`Employment and Reemployment Rights Act (“USERRA”),
`38 U.S.C. §§ 4301-4335. See, e.g., SAppx. 63-66. USERRA
`provides employment protections for military service mem-
`bers. See 38 U.S.C. § 4311(a) (“A person who . . . performs,
`[or] has performed, . . . service in a uniformed service shall
`not be denied initial employment, reemployment, retention
`in employment, promotion, or any benefit of employment
`by an employer on the basis of that . . . performance of ser-
`vice . . . .”).
`After reviewing Mr. Faris’ submissions, the Depart-
`ment of Labor concluded that the evidence did not support
`a USERRA violation. SAppx. 67-68. Mr. Faris appealed
`that determination to the MSPB, SAppx. 1-6, which denied
`his request for corrective action, Appx. 1-20.
`Mr. Faris, appearing pro se, timely appealed. We have
`jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
`§ 7703(b)(1)(A).
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`II
`We review the MSPB’s interpretation of a statute or
`regulation de novo. Bannister v. Dep’t of Veterans Affs., 26
`F.4th 1340, 1342 (Fed. Cir. 2022). We set aside its “action,
`findings, or conclusions” only if we find they are “(1) arbi-
`trary, capricious, an abuse of discretion, or otherwise not
`in accordance with law; (2) obtained without procedures re-
`quired by law, rule, or regulation having been followed; or
`(3) unsupported by substantial evidence.” 5 U.S.C.
`§ 7703(c).
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`Case: 22-1561 Document: 26 Page: 4 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`To make out a USERRA claim under 38 U.S.C. § 4311,
`an employee must show that “(1) they were denied a benefit
`of employment, and (2) the employee’s military service was
`‘a substantial or motivating factor’ in the denial of such a
`benefit.” Adams v. Dep’t of Homeland Sec., 3 F.4th 1375,
`1377 (Fed. Cir. 2021). “However, when the benefit in ques-
`tion is only available to members of the military, claimants
`do not need to show that their military service was a sub-
`stantial or motivating factor.” Id. at 1377-78. Therefore,
`because Mr. Faris’ claims “concern benefits only available
`to military servicemembers,” he need only show that he
`was denied a benefit of employment. Appx. 4. Also, in con-
`sidering the applicable statutory provisions, where there is
`doubt as to the meaning of Congress’ chosen text, we “give
`each [statutory provision] as liberal a construction for the
`benefit of the veteran as a harmonious interplay of the sep-
`arate provisions permits.” Fishgold v. Sullivan Drydock &
`Repair Corp., 328 U.S. 275, 285 (1946).
`III
` Mr. Faris argues that he was denied a benefit of em-
`ployment because he was required to make deposits to ob-
`tain FERS credit during the times he was on LWOP status
`for military service. See, e.g., Pet. Br. 4. Mr. Faris also
`argues that he was denied a benefit of employment when
`the agency did not allow him to make a deposit and receive
`FERS service credit during his week of inactive duty Na-
`tional Guard training in April 2017. Id. We consider each
`claim of error in turn.3
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`In coming to our conclusion, we have considered, in
`3
`conjunction with our review of the entire record, Mr. Faris’
`informal brief (ECF No. 8), his informal reply brief (ECF
`No. 18), and the memorandum he filed in lieu of oral argu-
`ment (ECF No. 24).
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`Case: 22-1561 Document: 26 Page: 5 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`A
`Mr. Faris argues that the FERS statutory scheme, by
`requiring him to pay a deposit to receive FERS credit for
`periods of military service while he was on LWOP from his
`civilian job, denies him the USERRA-protected benefit of
`receiving FERS credit without paying a deposit. See Pet.
`Br. 4-25. Mr. Faris’ contentions are defeated by the clear
`language of the applicable statutory provisions.
`The FERS statute provides that “an employee or Mem-
`ber shall be allowed credit for . . . each period of military
`service performed after December 31, 1956 . . . if a deposit
`(including interest, if any) is made with respect to such pe-
`riod in accordance with section 8422(e).”4 5 U.S.C.
`§ 8411(c)(1)(B) (emphasis added). Plainly, § 8411(c)(1)(B)
`requires that an employee seeking credit for a period of mil-
`itary service must make a deposit in order to have such a
`credit allowed. This unambiguous statutory language com-
`pels us to conclude that Mr. Faris is not entitled to credit
`without paying the deposit. See Consumer Prods. Safety
`Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)
`(“[T]he starting point for interpreting a statute is the lan-
`guage of the statute itself. Absent a clearly expressed leg-
`islative intention to the contrary, that language must
`ordinarily be regarded as conclusive.”).
`In attempting to evade this straightforward analysis,
`Mr. Faris points to § 8411(d), which provides that “[c]redit
`under this chapter shall be allowed for leaves of absence
`without pay granted an employee while performing mili-
`tary service . . . .” Mr. Faris argues he should be able to
`“claim rights to benefits” under this provision. Pet. Br. 8-
`9. However, reading the statute as a whole, as we must,
`see, e.g., Corley v. United States, 556 U.S. 303, 314 (2009)
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`4 Section 8422(e)(1) describes how to calculate the
`deposit amount and references the “deposit payable.”
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`Case: 22-1561 Document: 26 Page: 6 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`(“A statute should be construed so that effect is given to all
`its provisions . . . .”), § 8411(d) merely clarifies that an em-
`ployee on LWOP status to perform military service is eligi-
`ble to receive FERS credit for his service. It does not
`absolve him of the obligation to comply with the conditions
`for obtaining such a credit, including making the deposit
`required by § 8411(c)(1)(B).
`USERRA does not support a different conclusion. To
`the contrary, the statute explicitly contemplates that “a
`person who is absent from a position of employment by rea-
`son of service in the uniformed services . . . may be required
`to pay the employee cost, if any, of any funded benefit con-
`tinued . . . .” 38 U.S.C. § 4316(b)(1) & (4) (emphasis added).
`Another provision of USERRA, § 4316(b)(6), further pro-
`vides that “[t]he entitlement of a person to a right or benefit
`under an employee pension benefit plan is provided for un-
`der section 4318;” and § 4318 explains that “[a] person
`reemployed under this chapter shall be entitled to accrued
`benefits . . . that are contingent on the making of . . . em-
`ployee contributions . . . only to the extent the person makes
`payment to the plan with respect to such contribu-
`tions . . . .” 38 U.S.C. § 4318(b)(2) (emphasis added).
`Hence, USERRA is entirely consistent with the military-
`deposit requirement.
`As Mr. Faris points out, and the USAF does not dis-
`pute, a civilian employee in LWOP status who is not serv-
`ing in the military can receive FERS credit for up to six
`months in any calendar year without making a deposit.
`See Bain v. Off. of Pers. Mgmt., 978 F.2d 1227, 1230 (Fed.
`Cir. 1992) (“Taken as a whole, the statutory scheme[] of
`FERS . . . allow[s] federal employees up to six months per
`year of retirement credit for leaves of absence . . . .”). This
`does not make for a USERRA violation, however. As the
`USAF correctly responds, USERRA expressly provides
`that a person serving in the military while on LWOP status
`from their civil-service job may “be required to pay the em-
`ployee cost, if any, of any funded benefit continued
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`Case: 22-1561 Document: 26 Page: 7 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`pursuant to paragraph (1) to the extent other employees on
`furlough or leave of absence are so required.” 38 U.S.C.
`§ 4316(b)(1) & (4) (emphasis added); see also Resp. Br. 12-
`14. For his USERRA claim, the pertinent comparison is
`between Mr. Faris’ LWOP and employees “having similar
`seniority, status, and pay” who are on similar “furlough or
`leave of absence . . . .” 38 U.S.C. § 4316(b)(1)(B); see also
`Tully v. Dep’t of Just., 481 F.3d 1367, 1369 (Fed. Cir. 2007)
`(holding that “leave of absence” that “triggers a right to
`equivalent treatment” is one that is “comparable to the
`leave provided to the service member for military service,”
`and rejecting petitioner’s argument that he was entitled to
`“the best benefits available to any employee for any leave
`of absence”). Mr. Faris has not shown how such a compar-
`ison disfavors him. Moreover, as the USAF states, “em-
`ployees on LWOP for reasons besides military service
`cannot receive more than six months of service credit in a
`calendar year, whereas employees on LWOP for military
`service do not face this limitation – a distinction favoring
`members of the military.” Resp. Br. 14.
`Our conclusions are consistent with Whittacre v. Office
`of Personnel Management, 120 M.S.P.R. 114 (2013), on
`which the MSPB relied in declining to adopt Mr. Faris’ in-
`terpretation of the relevant statutes. Appx. 5-7. In Whit-
`tacre, the MSPB considered the same statutes we have
`discussed here and held that when “military service inter-
`rupts civilian service, a [FERS] deposit not exceeding the
`amount that would have been deducted and withheld from
`his basic pay had he remained in civilian service during the
`period in question is required.” 120 M.S.P.R. at 120.
`Because the statutes required Mr. Faris to pay a de-
`posit if he wished to receive FERS credit for his military
`service time, he was not entitled to receive FERS credit
`without making a deposit, and therefore Mr. Faris was not
`denied an employment benefit to which he was entitled.
`Accordingly, his USERRA claim fails, and the MSPB did
`not err in denying his request for corrective action.
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`Case: 22-1561 Document: 26 Page: 8 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`B
`Mr. Faris also argues that he should have been able to
`pay a deposit so he could receive FERS credit for his service
`while he was on LWOP to participate in inactive duty Na-
`tional Guard training from April 3 to 7, 2017. Pet. Br. 25-
`29. We disagree.
`Title 5, § 8411(c)(1) allows for the accrual of FERS
`credit for military service. “Military service” is expressly
`defined as “active service.” 5 U.S.C. § 8401(31) (“[T]he
`term
`‘military service’ means honorable active ser-
`vice . . . .”). Therefore, Mr. Faris’ inactive duty training is
`not eligible for FERS credit.
`Mr. Faris asserts that the USERRA definition of “ser-
`vice in the uniformed services,” which includes “inactive
`duty training,” 38 U.S.C. § 4303(13), governs which “mili-
`tary service” can count for FERS credit. Pet. Br. 25-26. We
`are not persuaded. “In construing a statute we are obliged
`to give effect, if possible, to every word Congress used.”
`Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Adopt-
`ing Mr. Faris’ view of the statutory scheme would effec-
`tively read the definition of “military service” Congress
`provided in § 8401(31) out of the statute. Therefore, we
`conclude that Mr. Faris’ interpretation of the statutory
`scheme is incorrect.
`Our conclusion is strengthened by the amendment
`Congress made to § 8401(31) in connection with the enact-
`ment of USERRA. At that time, in 1994, Congress
`amended FERS’ § 8401(31) definition of “military service”
`to add “full-time National Guard duty (as such term is de-
`fined in section 101(d) of title 10),” but it did not also add
`“inactive duty training.” USERRA, Pub. L. No. 103-353
`§ 5(c), 108 Stat. 3149, 3174. This omission was clearly in-
`tended, as the provision cited to, 10 U.S.C. § 101(d)(5), pro-
`vides that “‘full-time National Guard duty’ means training
`or other duty, other than inactive duty . . . .” (emphasis
`added).
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`Case: 22-1561 Document: 26 Page: 9 Filed: 09/22/2022
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`FARIS v. AIR FORCE
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`This set of statutory provisions did not entitle Mr.
`Faris to be offered the opportunity to pay a deposit and re-
`ceive service credit for his inactive-duty service. Hence,
`Mr. Faris was not denied an employment benefit under
`USERRA. The MSPB did not err in denying his request for
`corrective action.
`
`IV
`For the foregoing reasons, we conclude that the
`MSPB’s decision denying Mr. Faris’ request for corrective
`action is supported by substantial evidence and is not arbi-
`trary, capricious, an abuse of discretion, or otherwise con-
`trary to law. We have considered Mr. Faris’ additional
`arguments and find them unpersuasive. Accordingly, we
`affirm.
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`AFFIRMED
`COSTS
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`No costs.
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`