Colicelli v. DVA

Case: 20-2048 Document: 50 Page: 1 Filed: 12/27/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCUS COLICELLI,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-2048
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-19-0769-I-1.
______________________
Decided: December 27, 2021
______________________
BRIAN J. LAWLER, Pilot Law, P.C., San Diego, CA, ar-
gued for petitioner.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY,
JR., GEOFFREY MARTIN LONG.
______________________
Before LOURIE, MAYER, and CUNNINGHAM, Circuit Judges.
Case: 20-2048 Document: 50 Page: 2 Filed: 12/27/2021
2 COLICELLI v. DVA
PER CURIAM.
Marcus Colicelli seeks review of a decision of the Merit
Systems Protection Board (“board”) denying his claim seek-
ing an award of additional paid military leave for calendar
years 2016, 2017, and 2018. See Colicelli v. Dep’t of Veter-
ans Affs., No. DC-4324-19-0769-I-1, 2020 WL 1915737(M.S.P.B. Apr. 14, 2020). For the reasons discussed below,
we vacate in part and remand.
BACKGROUND
Colicelli works as an attorney advisor with the Board
of Veterans’ Appeals. J.A. 2. He also serves in the United
States Army Reserve. J.A. 2. In August 2019, he filed an
appeal with the board seeking an award of military differ-
ential pay and additional paid military leave for calendar
years 2016, 2017, and 2018. J.A. 30–43; see 5 U.S.C.
§§ 5538(a), 6323(b). An administrative judge of the board
granted Colicelli’s claim for military differential pay but
denied his claim for additional paid military leave. Al-
though the administrative judge determined that Colicelli
would have been otherwise eligible for a combined award
of sixty-six workdays of paid military leave for his reservist
service in calendar years 2016, 2017, and 2018, the judge
concluded that Colicelli’s claim for such an award was un-
timely because he had failed to submit requests for addi-
tional paid military leave during his periods of active duty.
J.A. 4, 14.
Neither party sought review of the administrative
judge’s initial decision and it became the final decision of
the board on May 19, 2020. See J.A. 18. On July 27, 2020,
Colicelli filed an appeal with this court. The following day,
however, he filed a petition with the board seeking to reo-
pen his case pursuant to 5 C.F.R. § 1201.117. See J.A. 208–
09. In his petition to reopen, Colicelli asserted that he had
recently located emails which the Department of Veterans
Affairs (“DVA”) had failed to produce when his case was
before the administrative judge. See J.A. 209. Colicelli
Case: 20-2048 Document: 50 Page: 3 Filed: 12/27/2021
COLICELLI v. DVA 3
contended, moreover, that these emails demonstrated that
he had requested an additional twenty-two days of paid
military leave during his periods of active duty in 2016 and
2017, see J.A. 212–15, and that he had “communicate[d]”
with the DVA about obtaining additional paid leave during
2018, see J.A. 209. In Colicelli’s view, since the DVA “did
not produce the emails sent to va.gov email addresses that
clearly show [his] timely requests” for additional paid mil-
itary leave, his case should be reopened and remanded to
the administrative judge “for final disposition, taking into
account the emails in question.” J.A. 209.
On July 29, 2020, the administrative judge denied Col-
icelli’s motion to reopen. He explained that “[w]hen an ad-
ministrative judge’s initial decision becomes the final
decision for the [b]oard . . . a request to reopen can be made
only to the full [b]oard pursuant to 5 C.F.R. § 1201.118.”
J.A. 218. The administrative judge then forwarded Col-
icelli’s motion to reopen to the board’s clerk. J.A. 219. On
July 31, 2020, the clerk sent Colicelli a letter stating that
the board would take no further action on his motion to re-
open because he had previously “exercised his review
rights by filing a pending court appeal.” J.A. 202.
DISCUSSION
This court has jurisdiction over an appeal from a final
decision of the board pursuant to 28 U.S.C. § 1295(a)(9).
We must set aside a board decision if it is: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance 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); see Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380,
1382 (Fed. Cir. 2008).
Pursuant to 5 C.F.R. § 1201.25(c), an agency’s response
to an appeal filed with the board must include “[a]ll docu-
ments contained in the agency record of the action.” Col-
icelli asserts that the DVA violated this provision by failing
Case: 20-2048 Document: 50 Page: 4 Filed: 12/27/2021
4 COLICELLI v. DVA
to produce emails indicating that he requested twenty-two
days of paid military leave in 2016, 2017, and 2018. * He
contends, moreover, that if the DVA had produced these
emails when his case was before the administrative judge,
the judge would have concluded that his claim for addi-
tional paid military leave was timely and granted his re-
quest for corrective action. Colicelli thus asks this court to
set aside the portion of the board’s decision denying his
claim for additional paid military leave, remand his case to
the administrative judge, and order the DVA to produce all
communications in its possession related to his requests for
additional paid military leave. See Br. of Pet’r 6–7.
The government does not dispute that the emails in
question could potentially establish that Colicelli submit-
ted timely requests for additional paid military leave. Nor
does it dispute that the DVA had an obligation to include
such emails in the agency response it filed with the board.
See, e.g., Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290,
1296 (Fed. Cir. 2021) (explaining that “issues not ad-
dressed in the argument section of a party’s opening brief
are considered waived”).
Because “[w]e are a court of review, not of first view,”
Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), we de-
cline to determine, in the first instance, whether the email
communications cited by Colicelli are sufficient to establish
that he filed timely requests for additional paid military
leave. See, e.g., Hessami v. Merit Sys. Prot. Bd., 979 F.3d
1362, 1371 (Fed. Cir. 2020); Holderfield v. Merit Sys. Prot.
Bd., 326 F.3d 1207, 1209–10 (Fed. Cir. 2003). We therefore
* Colicelli asserts that these “emails clearly show
that in 2016 and 2017, [he] specifically requested [twenty-
two] days of leave, and in 2018 received a response from
the [DVA] about something, which [he] believes [was] an-
other request for [twenty-two] days of leave.” Br. of Pet’r 5
(citing J.A. 212–16).
Case: 20-2048 Document: 50 Page: 5 Filed: 12/27/2021
COLICELLI v. DVA 5
vacate the portion of the board’s decision denying Colicelli’s
claim for additional paid military leave and remand with
instructions that an administrative judge: (1) order the
DVA to produce all records in its possession related to Col-
icelli’s requests for additional paid military leave; and (2)
determine, based on a properly constituted record, whether
Colicelli is entitled to the relief he seeks. ** We have con-
sidered the parties’ remaining arguments but do not find
them persuasive.
CONCLUSION
Accordingly, the decision of the Merit Systems Protec-
tion Board is vacated in part and the case is remanded for
further proceedings consistent with this opinion.
VACATED IN PART AND REMANDED
COSTS
No costs.
** As discussed previously, the board determined that
Colicelli was entitled to an award of military differential
pay pursuant to 5 U.S.C. § 5538(a). See J.A. 3–12. Because
the government did not appeal that determination, Col-
icelli’s eligibility for such differential pay is not at issue
here.