Back Pay for Some Reservists Going Back to 1980?
By Susan Smith
8/27/2007
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The
Federal Circuit Court of Appeals has just issued a decision that should
be looked at carefully by any current or retired federal employee who
took military leave for reserve activities. (Hernandez v. Department of the Air Force, C.A.F.C. No. 2006-3375, 8/27/07)
The court holds that the Merit Systems Protection Board has authority
to order relief for violations of the Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA" 38 U.S.C. §§4301-4333) that
occurred prior to the date of its enactment.
Under federal law, federal employees who are in the reserves get 15
days of military leave per year with the ability to carry over up to 15
days of unused military leave into the following year. (5 U.S.C.
§6323(a)(1)) For many years it was the government's practice to charge
every day that a reservist was on active duty to the 15-day military
leave account, even if part of it occurred, say, on a weekend when the
federal employee was not usually scheduled to work. For example, 1
week of reserve activity that included Saturday and Sunday when the
employee was not scheduled to work his/her civilian job anyway, was
charged 7 days of military leave. (Opinion, pp. 1-2)
But, in 2003 the Federal Circuit upended this practice in Butterbaugh v. Department of Justice, 336 F.3d 1332, 1343 (Fed. Cir. 2003), ruling that it was contrary to section 6323 and therefore violated USERRA.
Along comes Jose Hernandez, a retired civilian aircraft mechanic for the Air Force and a former reservist. He filed a Butterbaugh
claim with the MSPB seeking credit to his annual, sick and leave
without pay accounts. However, he could not identify the specifics of
his claim until he got records from the government through a discovery
request for documents. The Board's Administrative Judge, under the
impression that the 1994 amendments to USERRA set the cut off for such
claims, denied discovery to Hernandez for any leave records prior to
1994. (p. 3)
The full Board found that the AJ was wrong in limiting Hernandez's discovery to 1994 and later years (citing Garcia v. Department of State,
101 M.S.P.R. 172 (2006)), but nevertheless concluded that Hernandez had
not been prejudiced by the limited discovery order since he had plenty
of "opportunity to prove his alleged pre-enactment [pre-1994] claims."
(p. 4)
The appeals court disagrees and has now sent the case back to the MSPB,
directing that Hernandez be granted discovery to prove his claims
dating back to 1980. The court opined, "…[W]here a governmental action
violated a veterans' protection statute in effect at the time the
conduct occurred, the board has jurisdiction under USERRA to adjudicate
claims arising from that past violation, regardless of whether it
occurred before, on, or after October 13, 1994." (p. 5; citations
omitted)
The court refers to "Congress' broad remedial intent in enacting
USERRA, and the canon that veterans' benefits statutes are liberally
construed in favor of the veteran." (p. 7)
As to the government's argument that the AJ's error in denying
discovery for the pre-1994 period back to 1980 was "harmless," the
court finds it "disingenuous at best," pointing out that the AJ
"mistakenly thought pre-USERRA relief fell outside the scope of the
board's authority." (p. 8)
The court has reversed and remanded this part of Hernandez's case back
to the Board so that he can get a discovery order for covering his
1980-1994 employment records.
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