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Board Rules Federal Employees
With Reserve Service Due Back Pay

(Excerpts from an Aug. 3, 2005 Federal Times article by Vince Crawley)

A Merit Systems Protection Board decision could mean thousands of dollars for about 100,000 National Guard and reserve members who were also government employees during much of the 1990s.

A 2003 court ruling said nearly everyone who took military leave from federal jobs before December 2000 was shortchanged on leave days and eligible for back pay.

In implementing the ruling, the Office of Personnel Management, which oversees federal employment polices, limited its back-pay claimant period based on a 1940 ruling that allows such claims going back only six years. Thus, someone filing a claim today under OPM’s rules would be eligible only for lost pay from August 1999 to December 2000 — and that window would gradually have narrowed until closing in December 2006.

But MSPB’s July decision lets reservists file back-pay claims for military leave as far back as Oct. 1, 1994. A reservist employed by the federal government from that date through December 2000 would be eligible for about 24 days of back pay.

Government employees who are also National Guard or reserve members are entitled to 15 days of military leave per year to attend drills and training so they don’t have to use personal vacation days for that purpose.

Traditionally, this time off included all calendar days spent performing military training, including weekends and holidays. For example, if an employee who worked his regular government job from Monday through Friday attended military training from one Friday to the next, he would be charged eight days of military leave, even though only six actual work days were missed.

On Dec. 21, 2000, Congress changed the law so only regular workdays counted against military leave. So in the example above, an employee would be charged for six military leave days, not eight.

On July 24, 2003, the U.S. Court of Appeals for the Federal Circuit ruled that the employees should have been required to take military leave only on workdays instead of every calendar day of their duties. The ruling is known as Butterbaugh v. Department of Justice.

Last October, OPM issued a memo outlining how back pay would be processed for anyone affected by the appeals court’s ruling. It said back pay would be processed for both current workers and those who have left government service. However, the memo cited a 1940 law that provides a six-year statute of limitations on leave claims against the federal government.

In effect, that meant OPM would process back-pay claims only for the six years proceeding the date a claim is filed. For example, a claim filed Aug. 15, 2005, would yield back pay only for improper leave days charged from Aug. 15, 1999, though Dec. 21, 2000, the date Congress changed the law.

But MSPB’s latest 15-page decision, issued July 15, agreed that under USERRA, no six-year statute of limitations exists on such claims.

“There is no statutory time limit for filing an appeal to the board under USERRA,” said the written decision, handed down by board chairman Neil McPhie and board member Barbara Sapin. However, McPhie and Sapin also said they did not believe they are empowered to award back pay for dates before USERRA was signed into law in 1994.

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