Back Pay for Some Reservists Going Back to 1980?

Any current or retired federal employee who took military leave for reserve activity will want to read this case summary as it could mean a big payment for some people. An appeals court has sent a case back to the MSPB granting discovery for a reservist to prove his claim for pay going back to 1980.

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.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.