     United States Court of Appeals for the Federal Circuit




                                       06-3138


                             GINTARAS A. DAMBRAVA,

                                                            Petitioner,


                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.




      Gintaras A. Dambrava, of Redmond, Washington, pro se.

       Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, of Washington, DC, for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Franklin E.
White, Jr., Assistant Director. Of counsel on the brief was Paul St. Hillaire, Attorney,
Office of Personnel Management, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit


                                      06-3138


                            GINTARAS A. DAMBRAVA,

                                              Petitioner,

                                         v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                              Respondent.

                         ____________________________

                           DECIDED: October 20, 2006
                         ____________________________


Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

LOURIE, Circuit Judge.

       Gintaras Dambrava (“Dambrava”) appeals from the final decision of the Merit

Systems Protection Board (“the Board”) affirming the Office of Personnel Management’s

(“OPM”) reconsideration decision denying his application for immediate retirement

under the Civil Service Retirement Act (“CSRA”) after concluding that he was not

entitled to service credit for time spent on the temporary disability retirement list

(“TDRL”). Dambrava v. Office of Pers. Mgmt., DC-0831-04-0817-I-1 (M.S.P.B. Nov. 18,

2005). Because the Board correctly determined that he was not entitled to service

credit, we affirm.
                                     BACKGROUND

        On July 5, 1967, Dambrava began active service in the United States Army. On

September 18, 1968, he was injured in combat after suffering a gun-shot wound to the

right side of his neck. On February 13, 1969, Dambrava was placed on the TDRL,

which lists members of the armed forces who would qualify for disability retirement but

for the fact that the “disability is not determined to be of a permanent nature and stable.”

10 U.S.C. § 1202 (2000).       Dambrava remained on the TDRL until he permanently

retired on February 1, 1973, when it was determined that he was permanently unfit for

duty.

        In 1979, Dambrava had entered career employment in the federal government.

While employed with his last employer, the United States Marshals Service, Dambrava

requested that his employer amend his record of service so as to include time spent on

the TDRL.     The Marshals Service granted the request, and on May 4, 2003, a

Notification of Personnel Action was issued reflecting the change. On November 18,

2003, Dambrava applied for immediate retirement. Dambrava chose January 4, 2004

as his effective retirement date.

        By letter dated March 29, 2004, the OPM advised Dambrava that his request for

immediate retirement was denied because he did not have thirty years of creditable

service by January 3, 2004. Dambrava sought reconsideration of the OPM’s initial

decision, and reconsideration was denied on August 26, 2004.

        Dambrava appealed to the Board. In an initial decision dated December 3, 2004,

the Administrative Judge (“AJ”) affirmed the OPM’s conclusion that Dambrava’s time on

the TDRL did not qualify as active service and thus could not be included for service




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credit under the CSRA.     Dambrava v. Office of Pers. Mgmt., DC-0831-04-0817-I-1

(M.S.P.B. Dec. 3, 2004) at 3 (citing 5 U.S.C. § 8336(a)). Dambrava appealed the AJ’s

decision to the full Board, which denied his petition for review, thereby rendering the

AJ’s decision final. See 5 C.F.R. § 1201.115(d) (2006). Dambrava timely appealed to

this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

       The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

       On appeal, Dambrava argues that he is entitled to civil service retirement credit

and annual leave credit for the time spent on the TDRL, i.e., from February 13, 1969 to

January 31, 1973. Dambrava’s main contention is that the Board erred by failing to

consider the correct statutory provisions, namely, 5 U.S.C. § 8332(c)(2)(A) and 5 U.S.C.

§ 6303(a). Dambrava contends that under those provisions, TDRL assignment qualifies

as creditable service.

       The government responds that the Board correctly determined that time spent on

the TDRL did not qualify as “active service.” The government argues that the Board

properly deferred to the Secretary of the Army in determining Dambrava’s status in the

Army, and that documents in the record support this conclusion.        Additionally, the

government asserts that the plain language of the governing statutes indicates that




06-3138                                 -3-
placement on the TDRL fails to qualify as “active service” in the Armed Forces. Lastly,

the government contends that other courts have analyzed the status of members while

on the TDRL and concluded that it is not “active duty.”

        We agree with the government that the Board’s decision was in accordance with

law. In resolving this appeal, we must determine whether the Board erred in concluding

that time spent on the TDRL is not “creditable service” under the CSRA. Because this

issue is one of statutory interpretation, the Board’s decision is reviewed de novo.

        To begin our analysis, we must first look to the relevant statutory language. Title

5 of the United States Code § 8332 provides that creditable service “shall be credited

from the date of original employment to the date of separation on which title to annuity is

based [on] the civilian service of the Government.” 5 U.S.C. § 8332(b) (2000). The

statute further provides that, with certain exceptions not relevant here, service of

employees who began employment prior to October 1, 1982 “shall include credit for

each period of military service performed before the date of the separation” of

employment.     Id. § 8332(c)(1)(A).   Notably, the statute defines “military service” as

“honorable active service in the armed forces.” 5 U.S.C. § 8331(13)(A). Based on those

provisions, the statute clearly provides that Dambrava would be entitled to credit for the

duration of his TDRL assignment if such time qualifies as “honorable active service.”

Upon our review of the statutory language and pertinent case law, we conclude that it

does not.

        Placement on the TDRL is governed by 10 U.S.C. § 1202. That section provides

that:

              Upon a determination by the Secretary concerned that a
              member described in section 1201(c) of this title would be



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              qualified for retirement under section 1201 of this title but for
              the fact that his disability is not determined to be of a
              permanent nature and stable, the Secretary shall, . . . place
              the member’s name on the temporary disability retired list,
              with retired pay computed under section 1401 of this title.

10 U.S.C. § 1202 (emphases added). That statute requires a member to undergo a

physical examination at least once every eighteen months in order to determine

“whether there has been a change in the disability for which he was temporarily retired.”

10 U.S.C. § 1210. A member may remain on the TDRL for up to five years. 10 U.S.C.

§ 1210(b). If the member is found to be physically unfit, he then enters permanent

retirement status. Notably, however, if he is determined to be physically fit, upon his

consent, the statute provides that he shall “be recalled to active duty,” on which date his

disability retired pay is discontinued.    10 U.S.C.    § 1211(a), (d) (emphasis added).

Thus, a plain reading of the statutory language indicates that the status of a member on

the TDRL is akin to inactive duty or retirement, as opposed to “active service.” See

Transco Prods. Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994)

(“When statutory interpretation is at issue, the plain and unambiguous meaning of a

statute prevails in the absence of clearly expressed legislative intent to the contrary.”).

       Our conclusion that TDRL is not active service is consistent with other circuit

court decisions that have dealt with this issue in the context of the Federal Tort Claims

Act. In Cortez v. United States, 854 F.2d 723 (5th Cir. 1988), a widow of a serviceman

who died while on the TDRL brought suit against an army medical center alleging

negligence. The Fifth Circuit reversed the lower court’s dismissal of the case based on

the holding of Feres v. United States, 340 U.S. 135 (1950). In Feres, the Supreme

Court had held that “the Government is not liable under the Federal Tort Claims Act for




06-3138                                   -5-
injuries to servicemen where the injuries arise out of or are in the course of activity

incident to service.” Id. at 146. The Fifth Circuit concluded that a listing on the TDRL is

not “activity incident to service,” nor is it equivalent to active duty. Cortez, 854 F.2d at

726. The court noted that a “member who is physically unqualified for further active

duty has no inherent or vested right to be continued on active duty.” Id. Thus, the court

determined that a “service member on the TDRL is separated from the service,” and the

claim against the hospital was not barred. Id.

       The Fourth Circuit, in Bradley v. United States, 161 F.3d 777 (4th Cir. 1998),

likewise permitted a negligence claim to be brought against the government when the

decedent, a servicewoman in the Navy, died while listed on the TDRL. After noting that

a member on the TDRL is, among other things, not on active duty, not subject to being

recalled to active duty, and has the option to reenlist if found to be physically fit for duty,

the court concluded that status on the TDRL is “not a full discharge.” Instead, it is

“comparable to permanent retirement status.” Bradley, 161 F.3d at 782. While we are

not bound by those decisions of sister courts, which pertain to negligence claims rather

than entitlement to military retirement, they do characterize TDRL status in a manner

that we find persuasive and relevant to our inquiry. TDRL is not active service.

       In Craft v. United States, 544 F.2d 468 (Ct. Cl. 1976), the Court of Claims, one of

our predecessor courts whose precedents do bind us on similar facts, evaluated the

status of a member on the TDRL. The court noted that a member on the TDRL “is

actually separated from the military.” Id. at 476. After finding sufficient record evidence

to uphold the evaluation board’s determination that the plaintiff was fit for duty after

having spent some time on the TDRL, the court concluded that it was necessary to




06-3138                                   -6-
“restore plaintiff to active duty.” Id. at 477 (emphasis added). That court’s indication

that TDRL service is not active duty supports us in our decision in this retirement case.

       Dambrava cites United States v. Stevenson, 53 M.J. 257 (C.A.A.F. 2000), in

support of his assertion that time spent on the TDRL is “not a separation from active

duty.” Dambrava Supp. Reply at 1. That case, however, provides further support for

the opposite conclusion. In describing the nature of TDRL, the Court of Appeals for the

Armed Forces explained that once a member is found to be physically fit after having

been listed on the TDRL, a number of options become available. The court noted that

one option is to return to “active duty.” Id. at 258. The court further noted that in times

of national need, persons on the TDRL have been “recall[ed] . . . to active duty.” Id. at

259. Thus, the Stevenson court likewise characterized the status of a member on the

TDRL as “inactive duty,” not “active duty.”

       Dambrava’s assertion that the Board erred by failing to consider 5 U.S.C.

§ 8332(c)(2) and 5 U.S.C. § 6303 is without merit. Section 8332(c)(2)(A)(i) and (ii)

provide, in relevant part that:

              (2) If an employee or Member is awarded retired pay based
              on any period of military service, the service of the employee
              or Member may not include credit for such period of military
              service unless the retired pay is awarded—
              (A) based on a service-connected disability—
              (i) incurred in combat with an enemy of the United States; or
              (ii) caused by an instrumentality of war and incurred in line of
              duty during a period of war . . . .

5 U.S.C. § 8332(c)(2)(A)(i)-(ii) (emphases added).        Section 6303 provides similar

language with respect to annual leave.1 Dambrava argues that under those provisions,



       1
         This provision provides, in part, that “an employee is entitled to credit for all
service of a type that would be creditable under section 8332 . . . .” 5 U.S.C. § 6303(a).


06-3138                                  -7-
he should receive credit for TDRL time since his disability resulted from a combat-

related injury. Dambrava contends that the legislative history supports his position.

       That argument is unsound. Based on a plain reading of the statutory language,

those provisions provide that, while an employee may not receive service credit/annual

leave based upon any period of military service for which he or she has received retired

pay, that prohibition does not apply in the case of a period of military service for which

retired pay has been awarded based upon enumerated service-connected disabilities.

These statutes (5 U.S.C. §§ 8332(c)(2)(A)(i)-(ii) and 6303(a)) do not speak to whether

time on TDRL is active service, the issue in this case. As discussed above, Dambrava

fails to establish that the period in question, i.e., his time on the TDRL, is military

service. Thus, these statutes do not aid Dambrava. Moreover, the Court finds nothing

in the legislative history evincing congressional intent to import a broader definition of

“military service,” i.e., one that encompasses TDRL time, for purposes of those

provisions. Thus, in light of the statutory language, that argument fails.

                                      CONCLUSION

       We have considered Dambrava’s alternative arguments and find them

unpersuasive. Accordingly, we affirm the Board’s determination that the OPM did not

err in concluding that Dambrava’s time spent on the TDRL did not qualify as “creditable

service,” and thus he failed to meet the requirements for immediate retirement under the

CSRA.

                                       AFFIRMED

No costs.




06-3138                                  -8-
