Butterbaugh v. Department of Justice, 02-3331.

Decision Date24 July 2003
Docket NumberNo. 02-3331.,02-3331.
Citation336 F.3d 1332
PartiesKelly BUTTERBAUGH, Roseanne T. Faltin, John C. Marderness, Robert J. Bono, Petitioners, v. DEPARTMENT OF JUSTICE, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Joe Goldberg, American Federation of Government Employees, of Washington, DC, argued for petitioners.

Lauren S. Moore, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. On the brief were Robert D. McCallum, Jr., Associate Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; and Kevin W. McArdle, Attorney. Of counsel was James M. Kinsella, Assistant Director.

Before MAYER, Chief Judge, CLEVENGER and BRYSON, Circuit Judges.

Opinion of the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge BRYSON.

CLEVENGER, Circuit Judge.

Kelly Butterbaugh, Roseanne T. Faltin, John C. Marderness, and Robert J. Bono ("Petitioners") appeal the decision of the Merit Systems Protection Board ("Board"), which held that Petitioners' employer, the Department of Justice ("Department" or "agency"), acted permissibly in charging Petitioners' military leave allowance for days on which they were not scheduled to work, but they spent training with the military reserves. Butterbaugh v. Dep't of Justice, 91 M.S.P.R. 490 (2002). The Board concluded that the "15 days" of paid reserve training leave granted by 5 U.S.C. § 6323(a)(1) refers to 15 calendar days of military training, not to 15 workdays. We conclude, based on the text of the statute, that federal employees need take military leave only for those days on which they are required to work, and that section 6323(a)(1) thereby grants up to 15 workdays of military leave. We therefore reverse the decision of the Board and remand for further proceedings.


Petitioners are full-time employees of the Department of Justice, Bureau of Prisons, at the Federal Correctional Institution in Loretto, Pennsylvania. Petitioners are also members of the military reserves. Like other reservists, Petitioners are required to attend military training sessions each year. By statute, 5 U.S.C. § 6323(a)(1) (2000), federal employees are granted up to "15 days" of paid leave to attend reserve or National Guard1 training.

Prior to 2000, the Department, as other federal agencies had done for decades, had included days on which employees were not scheduled to work (e.g., weekends and holidays) when calculating how much military leave employees took. For example, an employee (with a Monday-Friday workweek) attending reserve training from one Friday through the next would be charged for eight days of military leave, even though the employee was absent for only six workdays. Thus, the agency measured the grant of military leave by the number of calendar days employees spent in reserve training, rather than by the number of workdays on which they were absent from work.

At least in part due to this accounting practice, Petitioners complain that they were forced to supplement their statutory military leave with other leave time to meet their reserve training obligations. Petitioners assert that they took annual leave or leave without pay in order to serve the full period of their reserve training.2

In 2000, Congress amended section 6323 to add subsection (a)(3), which states: "The minimum charge for leave under this subsection is one hour, and additional charges are in multiples thereof." 5 U.S.C. § 6323(a)(3) (2000). Although neither the amendment nor any legislative history accompanying the amendment addressed or altered the grant of "15 days" of leave in section 6323(a)(1), the Office of Personnel Management ("OPM") determined that, in light of the new subsection, section 6323(a)(1) could no longer be interpreted to charge non-workdays against federal employees' military leave:

Based on new section 6323(a)(3), it is clear that Congress recognizes an 8-hour civilian workday as the basis for accruing 1 day of military leave and that there is no intent to charge an employee military leave for the hours that he or she would not otherwise work.... Members of the Reserves and/or National Guard will no longer be charged military leave for non-duty days (typically weekends and holidays) that occur within the period of military service.

Memorandum for Human Resources Directors, Office of Personnel Management (Jan. 25, 2001). The Department, like other federal agencies, changed its military leave policy to conform to OPM's new interpretation. Thus, Petitioners' grievances relate to past and not current agency policies.


Petitioners filed complaints with the Board, alleging that the agency's pre-2000 practice of charging their military leave for non-workdays, and thereby forcing them to use other leave to complete reserve training, violated the Uniformed Services Employment and Reemployment Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333 (2000), by denying them a benefit of employment based on their military service. In an Initial Decision, the Board's administrative judge ruled that (1) the Board lacked jurisdiction over Petitioners' claim, because the agency had actually granted them their military leave and therefore their appeal did not allege the denial of a benefit of employment under USERRA; and (2) if the Board had jurisdiction, the agency had a legitimate, nondiscriminatory reason for its leave policy, because the agency was merely following OPM's guidance in charging non-workdays against military leave. Faltin v. Dep't of Justice, Nos. PH3443010135-I-1, -0134-I-1, -0136-I-1, -0137-I-1 (Merit Sys. Prot. Bd. Apr. 24, 2001).

Petitioners sought review of the administrative judge's initial decision by the full Board. Contrary to the administrative judge, the full Board determined that it had jurisdiction over the appeal, because Petitioners had made a nonfrivolous allegation under USERRA that they had been denied a benefit of employment due to their reserve service. Butterbaugh, 91 M.S.P.R. at 494-95. However, the Board ruled that the Department's practice of charging non-workdays against military leave did not deprive Petitioners of a benefit of employment because, as a matter of statutory interpretation, the Board held that the grant of "15 days" of leave in 5 U.S.C. § 6323(a) meant 15 calendar days of leave, not 15 workdays. Hence, agencies were properly charging Petitioners for all days they spent in military training, whether or not those days were workdays. The Board reached this conclusion beginning with the observation that the ordinary and accustomed meaning of "day" is a calendar day, indicating that section 6323(a)(1) grants calendar days of leave. Further, for purposes of subchapter I of title 5, chapter 63, Congress specifically defined "day" to be a workday, 5 U.S.C. § 6302(a), but did not do so for subchapter II. This suggested to the Board that Congress did not intend for "day" to mean workday in subchapter II, where section 6323(a) is found. Moreover, Congress specifically used "workdays" in the sections of the statute granting extended active duty leave for reservists (sections (b)(1) and (d)(1) of section 6323), showing that Congress knew how to specify workdays when it chose to.

Finally, the Board extensively reviewed the history of the leave statutes:

Before 1899, full-time civilian federal employees were generally charged annual and sick leave for intervening non-workdays that occurred during a period of leave. The rationale for that policy was apparently twofold: first, that days generally refers to calendar days, including weekends and holidays; and, second, that Congress intended that employees, who were then paid for every day, including weekends and holidays, receive one month's vacation with the time expressed in days because of the varying lengths of the calendar months.

An 1899 act provided, for the first time, that annual leave shall be charged exclusive of non-workdays. That statute did not apply to sick leave and sick leave continued to be charged for intervening non-workdays.

The first statute specifically granting civilian federal employees military leave of up to 15 days a year for training was enacted in 1917. Act of May 12, 1917, ch. 12, 40 Stat. 40 (1917). That statute did not state whether intervening non-workdays during a period of military leave were to be charged as leave, and in the absence of such language, military leave was administered consistent with the pre-1899 policy of charging annual leave and the then-existing policy for charging sick leave.

In 1951, Congress completed a significant overhaul of the federal leave system and defined "days" for purposes of annual and sick leave as being exclusive of non-workdays. Act of Oct. 30, 1951, Title II, 65 Stat. 679 (1951). As discussed above, however, that definition was only applied to what would become codified as subchapter I of title 63. Thus, for military leave purposes, "days" retained its ordinary meaning that the term had for all types of leave prior to the 1899 statutory change.

The Civil Service Commission incorporated the long-standing practice for charging military leave into the Federal Personnel Manual and the record contains a copy of the relevant provision from 1963. When the Civil Service Commission was abolished and the Office of Personnel Management was created pursuant to the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, the Office of Personnel Management retained the provision, which the Bureau of Prisons incorporated into its leave policy.

Despite making various changes to the military leave system in the last 40 years, Congress did not address the way military leave was charged until 2000. See, e.g., Pub.L. No. 104-106, 110 Stat. 186 (1996) (authorizing military reserve technicians up to 44 workdays a year to participate in noncombat operations outside of the United States); Pub.L. No. 102-190, 105 Stat. 1290 (1991) (...

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