                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


    United States Court of Appeals for the Federal Circuit


                                        06-3246


                                       KER LEE,

                                                       Petitioner,

                                           and

                                      TOU THOR,

                                                       Petitioner,


                                            v.


                         DEPARTMENT OF AGRICULTURE,

                                                       Respondent.


                           __________________________

                           DECIDED: October 11, 2006
                           __________________________


Before LOURIE, SCHALL, and DYK, Circuit Judges.

PER CURIAM.

                                         DECISION

      Ker Lee and Tou Thor (“petitioners”) petition for review of the final decision of the

Merit Systems Protection Board (“Board”) that affirmed the decision of the United States
Department of Agriculture (“agency”) to withdraw federal service credit from both Mr.

Lee and Mr. Thor, which action resulted in a loss of pay and grade for Mr. Thor. Lee

and Thor v. Dep’t of Agriculture, Nos. SF0752040658-I-4, SF0752040661-I-4 (M.S.P.B.

Feb. 10, 2006). We affirm.

                                       DISCUSSION

                                               I.

      On February 15, 1998, petitioners received Excepted Service Appointments with

the Forest Service, a component of the agency. The appointments were pursuant to the

provisions of 5 C.F.R. § 213.3202(b).    It was a condition of the appointments that

petitioners be students in an accredited degree-producing educational institution.    5

C.F.R. § 213.3202(b)(1)(i). Petitioners qualified as students because they were enrolled

in the Forest Service’s Apprentice Academy.

      On February 1, 1999, petitioners were dismissed from the Apprentice Academy

because they had failed a certain test twice. As a result of those dismissals, both Mr.

Lee’s and Mr. Thor’s appointments should have been terminated because petitioners no

longer met the regulatory requirement of being enrolled in an accredited degree-

producing educational institution. Nevertheless, in April of 2000, the management of

the Mendocino National Forest agreed to retain petitioners on agency rolls and to put

together its own course of training.    Management believed that the course would

duplicate the academic requirements of the Apprentice Academy. Management also

agreed to convert petitioners from Student Trainee Forestry Technicians to GS-04

Forestry Technicians, a career-conditional position. This action was taken on April 23,

2000. In due course, however, it was determined that these appointments were illegal




06-3246                                    2
because petitioners had not met the requirements of 5 C.F.R. § 213.3202(b)(11)(A).

That provision requires that, in order to be converted to career-conditional status, a

person must have completed the course requirements at an accredited school

conferring a degree, certificate, or diploma within the previous 120 days. To address

the situation, the agency appointed Mr. Thor and Mr. Lee to GS-05 competitive

appointments, effective May 6, 2001, and June 3, 2001 respectively. This meant that

the agency was not required to terminate petitioners from their positions.

       Eventually, however, the Office of Personnel Management (“OPM”) directed the

agency to revoke all of petitioners’ service credit between the dates of their termination

from the Apprentice Academy and the dates of their valid competitive appointments. It

did so after determining that petitioners were not entitled to a waiver of the requirements

of section 213.3202(b)(11)(A).       Accordingly, after OPM declined to modify its

determination, by letter dated June 10, 2004, the agency advised petitioners that it

would withdraw service credit for the pertinent periods. As a result, petitioners’ Service

Computation Dates for Leave, Fire Fighter and Regular Retirement, Thrift Savings Plan

and Reduction in Force purposes were changed to more recent dates. This change had

the effect of reducing Mr. Thor’s rate of pay from that of GS-07, step 2 to GS-07, step 1.

       Petitioners timely appealed to the Board, where their appeals were consolidated.

In an initial decision dated February 10, 2006, the administrative judge to whom the

appeals were assigned sustained the agency’s action. The administrative judge’s initial

decision became the final decision of the Board pursuant to 5 C.F.R. § 1201.113 when

petitioners chose not to petition the Board for review. This appeal followed. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).




06-3246                                     3
                                                 II.

          Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Keley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

          On appeal, petitioners argue that the Board failed to “take into account [the]

Agency’s admission of culpability.” What we understand Mr. Lee and Mr. Thor to be

contending is that because the agency made the initial errors of dismissing them from

the Apprentice Academy and then illegally circumventing the requirements of 5 C.F.R.

§ 213.3202(b), it was improper for the agency to then reduce their service credit. The

contention is without merit. First, petitioners did not at the time challenge their dismissal

from the Academy and have not established in this proceeding that the dismissal was

erroneous.       Second, the undeniable fact is that, in their present circumstances,

petitioners are no worse off than they would have been had the agency not acted

illegally in circumventing the regulation. Put another way, OPM’s determination and the

subsequent agency action have not deprived petitioners of anything to which they were

entitled.

          Moreover, we see no error in the decision of the Board not to disturb OPM’s

failure     to   grant   petitioners   waivers         from   the   requirements   of   5   C.F.R.

§ 213.3202(b)(11)(A). We “typically afford deference to OPM’s interpretation of its own

regulation, unless plainly erroneous or inconsistent with the regulation.” Folio v. Dep’t of




06-3246                                           4
Homeland Security, 402 F.3d 1350, 1355 (Fed. Cir. 2005).          OPM determined that

allowing service credit for a period of service obtained in violation of section

213.3202(b)(11)(A) would not be “in the spirit” of the regulation. In view of the clear

illegality of petitioners’ appointments to their GS-04 Forestry Technician positions, we

are not prepared to say that OPM’s decision was “plainly erroneous.”

      For the foregoing reasons, the final decision of the Board is affirmed.




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