       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                JOSEPH S. MURRAY,
                    Petitioner,

                           v.
      NATIONAL AERONAUTICS AND SPACE
             ADMINISTRATION,
                 Respondent.
              __________________________

                      2010-3073
              __________________________

   Petition for review of the Merit Systems Protection
Board in DC4324090240-I-1.
              ___________________________

                Decided: June 15, 2010
             ___________________________

   JOSEPH S. MURRAY, of Hampton, Virginia, pro se.

    CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
MURRAY   v. NASA                                        2


                   __________________________

Before RADER, Chief Judge, LOURIE, and BRYSON, Circuit
                       Judges.
PER CURIAM.

                           DECISION

    Joseph S. Murray appeals from a decision of the Merit
Systems Protection Board denying his request for relief
under the Uniformed Services Employment and Reem-
ployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §
4311(a). We affirm.

                         BACKGROUND

    Mr. Murray served in the U.S. Air Force from October
1961 until his retirement from active military service on
October 31, 1983. Effective November 1, 1983, Mr.
Murray became a member of the retired reserves and
remained in the retired reserves until 1991. On Septem-
ber 26, 1983, while on terminal leave from active duty,
Mr. Murray accepted a civil service position with the
National Aeronautics and Space Administration. In the
course of his employment with NASA, Mr. Murray re-
ceived annual leave with pay at the rate of four hours per
pay period (the “4-hour” rate). That rate later increased
with additional years of service, 1 and by October 1997,
Mr. Murray received paid leave at the maximum rate of
eight hours per pay period (the “8-hour” rate). See 5


   1    In addition, on August 15, 1985, NASA credited
Mr. Murray with an additional year of service to reflect
his participation in a campaign or expedition for which a
campaign badge was authorized.         See 5 U.S.C. §
6303(a)(B).
3                                            MURRAY   v. NASA


U.S.C. § 6303(a). He served at NASA until he retired
from the civil service on April 3, 2004.

     On July 19, 2005, Mr. Murray filed a claim for com-
pensation with NASA, alleging that the agency had
incorrectly calculated the rate at which he accrued paid
leave. Specifically, Mr. Murray asserted that NASA
failed to give him credit for his 22 years of active military
service and, as a result, erroneously started him at the 4-
hour rate instead of the 8-hour rate. That error, he
argued, denied him 884 hours of paid annual leave over
the course of his employment. NASA responded that (1)
the statute of limitations found in 31 U.S.C. § 3702(b) and
5 C.F.R. § 178.104(a) precluded relief for the period from
September 26, 1983, through July 19, 1999; and (2) Mr.
Murray was not entitled to relief for the portion of his
claim that was not time-barred because he did not fall
within any of the provisions of 5 U.S.C. § 6303(a) that
would allow him to receive credit for his prior military
service.

    Mr. Murray submitted his claim to the Office of Per-
sonal Management (“OPM”). OPM had previously con-
strued 5 U.S.C. §§ 6303(a) and 5534a to allow military
personnel on terminal leave to receive credit for their past
military service and to retain that credit after retiring
from active military duty. Based on that interpretation,
OPM concluded that Mr. Murray should have been given
credit for his prior military service. Nevertheless, OPM
denied relief and held that (1) the statute of limitations,
31 U.S.C. § 3702(b), barred Mr. Murray’s claim for the
period prior to July 19, 1999; and (2) Mr. Murray was not
entitled to compensation for the period after July 19,
1999, because he was already accruing annual leave at
the maximum 8-hour rate during that period.
MURRAY   v. NASA                                           4


    Mr. Murray then sought administrative review under
USERRA. After the Office of Special Counsel declined to
take action in his case, Mr. Murray filed a USERRA
appeal with the Merit Systems Protection Board.

    The administrative judge who was assigned to the
case ruled that Mr. Murray’s USERRA claim was not
subject to the statute of limitations in 31 U.S.C. § 3702(b),
but that because Congress did not enact USERRA until
1994, Mr. Murray’s rights prior to the effective date of
USERRA were governed by section 404(a) of the Vietnam
Era Veterans’ Readjustment Assistance Act of 1974, 38
U.S.C. § 2021(b)(3) (1988) (“VRAA”). The administrative
judge ruled that because that section of the VRAA gave
rights only to members “of a Reserve component of the
Armed Forces,” Mr. Murray could not prevail for the
period before he joined the retired reserves on November
1, 1983. The administrative judge also ruled that Mr.
Murray was not entitled to a higher rate of annual leave
after joining the retired reserves because 5 U.S.C.
§ 6303(a) generally precludes military retirees from
receiving credit for past service. Mr. Murray asserted
that he should have received credit under 5 U.S.C. §
6303(a)(C), which allows a military retiree to receive
credit for past military service if, “on November 30, 1964,
he was employed in a position to which this subchapter
applies,” because he was in active military service on
November 30, 1964. The administrative judge rejected
that argument and held that the statutory reference to “a
position” refers to civil service positions, not military
positions.

     The administrative judge considered, but rejected,
OPM’s earlier interpretation of the relevant statutes. The
administrative judge noted that the Department of Jus-
tice’s Office of Legal Counsel (“OLC”), in a 2007 legal
5                                             MURRAY   v. NASA


memorandum, had rejected OPM’s interpretation as
inconsistent with the plain meaning of section 6303(a).
Under OLC’s analysis, a serviceman on terminal leave is
entitled to receive credit for his prior military service only
until the time he retires from active military service. The
administrative judge found OLC’s reasoning persuasive
and held that Mr. Murray was not entitled to receive
credit for his military service after October 31, 1983.

    Mr. Murray petitioned the full Board for review of
that decision. The Board denied Mr. Murray’s petition,
reopened his appeal on its own motion, and denied his
request for relief. Agreeing with the administrative
judge, the Board held that it “cannot adjudicate claims of
practices that were not prohibited before the passage of
USERRA in 1994,” and that Mr. Murray did not qualify
for rights under the pertinent provision of the VRAA
before November 1, 1983, because he was not yet a mem-
ber of the reserves. See Fernandez v. Dep’t of the Army,
234 F.3d 553, 557 (Fed. Cir. 2000). Mr. Murray asserted
that he should have prevailed under OPM’s initial inter-
pretation of 5 U.S.C. § 6303(a). The Board disagreed and,
like the administrative judge, adopted the reasoning in
the OLC memorandum and rejected OPM’s earlier inter-
pretation and Mr. Murray’s argument.

     Mr. Murray responded by arguing that his case fell
within 5 U.S.C. § 6303(a)(C). In particular, he argued
that the legislative history of section 6303 supported his
position because an earlier version of that provision
covered those “employed in a civilian office to which this
Act applies.” He contended that the more restrictive
language of the prior version of the statute suggested that
Congress intended to apply section 6303(a)(C) to both
civilian and non-civilian positions when it later substi-
tuted “a position” for “a civilian office.” See S. Rep. No.
MURRAY   v. NASA                                            6


89-1380, at 143-44 (1966). The Board rejected that argu-
ment because, inter alia, the definition of “employee” in
that subchapter does not encompass active military
positions, see 5 U.S.C. § 6301(2)(A); 5 U.S.C. § 2105(a)(1),
and because the legislative history of the amendment on
which Mr. Murray relies states that “there are no sub-
stantive changes made by this bill,” S. Rep. No. 89-1380,
at 18, 20.

                        DISCUSSION

    On appeal, Mr. Murray argues that the Board erred
in interpreting 5 U.S.C. § 6303(a)(C), and that he should
receive credit for his prior military service under that
provision. In particular, he argues that his 1964 position
in the Air Force qualifies as “a position to which [sub-
chapter I of chapter 63 of title 5] applies” because, in
certain situations, an employee can be given credit for
years of military service under section 6303(a). Mr.
Murray also argues that by using the phrase “a position”
in 5 U.S.C. § 6303(a)(C), Congress intended to include any
position listed in 5 U.S.C. § 8332, which includes positions
in the military.

    While section 6303 provides that in general an em-
ployee “is entitled to credit for all service of a type that
would be creditable under section 8332,” it specifically
provides that an employee who is a “retired member of
the uniformed service” is entitled to credit for active
military service only in three limited circumstances,
which are set forth in section 6303(a)(A)-(C). Mr. Murray
claims that he is entitled to service credit for the period of
his military service under subparagraph (C) of subsection
6303(a), which grants benefits to any military retiree if
“on November 30, 1964, he was employed in a position to
which this subchapter applies” and continued to be so
7                                           MURRAY   v. NASA


employed without a break in service. It is clear, however,
that the term “this subchapter,” i.e., subchapter I of
chapter 63 of Title 5, does not apply to active military
positions. See 5 U.S.C. § 6301(2)(A); 5 U.S.C. § 2105(a)(1);
Clark v. Office of Pers. Mgmt., 95 F.3d 1139, 1143 (Fed.
Cir. 1996) (“The [Dual Compensation Act] restricted the
use of prior military service in determining a civilian
employee's rights and benefits.”). Section 6303(a)(C) thus
makes clear that military service is not counted in calcu-
lating the amount of paid leave accrued by a retired
service member who becomes a civil service employee
after November 30, 1964. Because Mr. Murray was not
employed in a civil service position until 1983, he does not
fall into that exception to the general statutory rule and
therefore is not entitled to have his military service
credited in calculating his accrued leave.

    Mr. Murray also contends that he is entitled to relief
because NASA failed to follow OPM’s interpretation of
section 6303 and because OPM erroneously applied 31
U.S.C. § 3702(b) when deciding his claim. We agree with
the Board and OLC, however, that OPM’s earlier inter-
pretation of section 6303 conflicts with the plain language
of the statute and therefore cannot stand. Section 6303
clearly indicates that Congress issued a general rule that
retired military personnel do not receive credit for their
prior military service, and OPM’s interpretation of the
statute was contrary to that general rule.

    Mr. Murray asserts that OLC’s interpretation of the
statute amounts to a retroactive application of a change
in the law. Specifically, he argues that Congress’s 2006
amendment to 5 U.S.C. § 5534a, which equated military
personnel on terminal leave with military retirees for
purposes of determining the accrual of paid leave, applies
only prospectively, and that OLC’s interpretation “effec-
MURRAY   v. NASA                                       8


tively made the 2006 amendment retroactive.” We per-
ceive no error in OLC’s legal reasoning or in the Board’s
adoption of OLC’s analysis. The question before the
Board was what rights Mr. Murray had under the stat-
utes applicable to him at the pertinent time. In conclud-
ing that those statutes did not afford Mr. Murray a basis
for relief, neither the Board’s opinion nor the OLC memo-
randum applied later legal rules retroactively; rather,
they applied the legal rules applicable at the time and
concluded that under those rules Mr. Murray was not
entitled to relief.

    Mr. Murray also asserts that it would be unfair to
deny his claim when others may have received benefits
under OPM’s prior policy. However, the fact that others
might have obtained benefits at a time before OPM’s
interpretation of the pertinent statutes was corrected
does not give Mr. Murray an enforceable right to rely on
that erroneous interpretation.

                      AFFIRMED
