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 (“petiti oners”) petition for review of the final decision of the Merit Systems Protection Board (“Board”) that affirmed the decision of the United StatesDepartment of Agriculture (“agency”) to wit hdraw federal service credit from both Mr.

Lee and M r . Thor, which action r e sulted 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, petitioner s rece ived Exc epted Service Appointments with the Forest Service, a component of the agen cy. The appointment s were pur suant 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 educ ational institution. 5 C.F.R. § 213.3202(b)(1)(i). Petitioners qualif ied 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 twic e. As a result of thos e dismiss a ls, both Mr. Lee’s and Mr. Thor’s appointm ents should have been termi nated because petitioners no longer met the regulatory requirement of being enr olled in an accredited degreeproducing educational institution. Neverthele ss, in April of 2000, the management of

the Mendocino National Forest agreed to retain petitioner s on agency rolls and to put together its own course of training. Management believed t hat the course woul d duplicate the academic requirements of the Apprentic e Academy. Management also agreed to convert petitioners from Student Tr ainee Forestry Technic i ans to GS-04 Forestry Technic i ans, a career-conditional pos ition. T h is action was taken on April 23, 2000. In due course, however, it was deter mined that these appoin tments were illegal

06-3246 2because petitioners had not met the requirem ents 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 cour se requirements at an accredited school conferring a degree, certificate, or diploma within the pr evious 120 days. To addres s the situation, the agency appointed Mr. Thor and Mr. Lee to GS-05 competitiv e appointments, effective May 6, 2001, and June 3, 2001 respectively. This meant that the agency was not required to terminat e petitioners from their positions. Eventually, however, the Office of Personnel Management (“OPM”) directed the agency to r e voke all of petitioner s’ service c r edit between the dates of their termination from the Apprentice Ac ademy and the dat es of their valid c o mpetitive appointments. It did so after determining that petitioners were not entitled to a waiv er of the requirements of section 213.3202(b)(11)(A). Accordingl y, 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, F i re Fighter a nd Regular Retirement, Thrift Savings Plan

and Reduction in Forc e purposes were changed to more recent dates. This change had the effect of reducing Mr. Thor’s rate of pay fr om that of GS-07, step 2 to GS-07, step 1. Petitioners timely appealed to the Board, where their appeals we re consolidated.

In an initial dec ision dated Febr uary 10, 2006, the admi nistrative judge to whom the appeals were assigned sustaine d the agency’s action. The administrative judge’s initial

decision became the final dec ision of the Board pursuant to 5 C.F.R. § 1201. 113 when petitioners chose not to petition the Board fo r review. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

06-3246 3I I

. Our scope of review in an appeal from a decision of the Board is limited. Specifically , we must affirm the Board’s deci sion unless we find it to be arbitrary, capricious, an abuse of discreti on, or otherwise not in ac cordanc e with law; obtained without procedures required by law, rule , or regulation havin g been followed; or unsupported by substantial ev id ence. 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 Boar d failed to “take into account [the] Agency’s admission of culpability

. ” What we understand Mr. Lee and Mr. T hor to be contending is that bec ause the agency made the initial errors of dismissing t hem 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. Fi rst, petitioners did not at the time challenge their dismiss a l from the Academy and have not es tablished in this proceedi ng 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 t he agenc y not acted illegally in circumventing t he regulation. Put another way, OPM’s determination and the subsequent agency action hav e not deprived petit ioners of anything to whic h they were

entitled. Moreover, we see no error in the decis ion of the Board not to disturb OPM’s failure to grant petitioners waivers fr om the requir e ments of 5 C.F.R. § 213.3202(b)(11)(A). We “typically afford de ference to OPM’s interpretation of its own regulation, unless plainly erroneous or inconsistent with the regulat ion.” Folio v. Dep’t of

06-3246 4Homelan d Security , 402 F.3d 1350, 1355 (Fed. Cir. 2005). OPM determined that allowing service credit for a period of se rvice obtained in violation of section 213.3202(b)(11)(A) w ould not be “i n the s p irit” of the regulatio n. In view of the clear illegality of petitioner s ’ appointments to their GS-04 Fo restry Technician positions, we are not prepared to say that OPM’ s decision was “plainly erroneous.” For the foregoing reasons, the fi nal decis ion of the Board is affirmed.

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