Court Guidance for Agencies on Use of Military Leave by Agencies
By Susan Smith
Thursday, August 30, 2007
On 8/27/07 we reported on the Federal Circuit Court of Appeals' Hernandez decision. (See Back Pay for Some Reservists Going Back to 1980? and The Billion Dollar Case for Federal Employees) This case involving Butterbaugh petitions seeking to remedy how military leave was applied by federal agencies has generated a lot of buzz among current and retired federal employees who took military leave during their careers.
Now, the Federal Circuit has issued another decision involving credit for improperly charged military leave. The new case is Pucilowski v. Department of Justice, C.A.F.C. No. 2006-3388 (8/29/07). In this new case, the court has directed the Merit Systems Protection Board to order the government to correct an employee's personnel leave records for the days he was improperly charged military leave. (Opinion, p. 1) The court also issued some "guidance" for agencies dealing with these Butterbaugh petitions. Read on.
Pucilowski worked for the Bureau of Prisons and later the Transportation Security Administration. He filed a Butterbaugh petition with the MSPB. After considering the facts spanning some 15 years of Pucilowski's work records, the Board found that he was improperly charged 22 days of military leave. However, it ruled that he was only entitled to 5 days of back pay since this was the sum total of the actual out-of-pocket harm to him for the improper charging of the military leave. (pp. 2-3)
Pucilowski unsuccessfully argued to the court that he should be reimbursed for all 22 days of improperly charged military leave. As the court stated, "Indeed, a veteran is legally entitled to monetary compensation or its equivalent only where he demonstrates actual harm." (p. 5, citing Butterbaugh) In this case, Pucilowski could only point to 5 days in one leave year that he was forced to take on leave without pay because of the misapplication of the rules on available military leave.
In short, the court affirmed the Board's 5-day back pay remedy in Pucilowski's case.
Interestingly though, the court pointed to the lack of consistency among federal agencies in compensating veterans for Butterbaugh, and offered this "guidance" to agencies (perhaps hoping to reduce the number of appeals heading the court's way in this arena):
"We make clear that, while not legally obligated to do so, agencies may resolve claims by providing more compensation than an individual has been able to prove. This practice…. is appropriate as a matter of administrative convenience, especially if the records before them are deficient or incomplete. But it also helps to ensure that veterans are appropriately given the benefit of the doubt in the face of such records and fully enjoy the presumption that veterans' benefits statutes are to be resolved in their favor." (p. 6, citations omitted)
What agencies will do with this appeals court "guidance" is a big question mark.
Also as part of his petition, Pucilowski had asked the MSPB to order correction of his civilian and military leave records. But the Board concluded that it did not have authority to do this.
The court disagrees with the Board's position and remands this part of the case, stating: "The board plainly has the authority under 38 U.S.C. §4324 to remedy denial of military leave benefits. …Accordingly, the board erred by failing to order the Department of Justice, the Transportation Security Administration, the United States Department of Defense Finance & Accounting Service…to correct their records to reflect a proper accounting of Pucilowski's military leave." (p. 5)
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