Administrative Claims for Annual Leave as a Result of Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003)

Washington, D.C. 20530

December 7, 2006

MEMORANDUM FOR BUREAU HUMAN RESOURCES OFFICERS

In an October 20, 2004, memorandum issued by this office, we provided to you a memorandum from the Director of the Office of Personnel Management (OPM) concerning processing employees' administrative claims for annual leave as a result of the decision in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003). As you know, the court held in Butterbaugh that agencies should not have charged military leave for nonworkdays that occurred within a period of military duty prior to a change in military leave law that became effective on December 21, 2000. The OPM advised in its October 2004 memorandum that agencies should settle administrative claims based on the Butterbaugh ruling but only for leave periods that preceded such claims by 6 years or less. It based this 6-year limitation on the time period for such claims on the Barring Act of 1940, codified at 31 U.S.C. § 3702. The purpose of this memorandum is to advise you in writing, as we have previously done in our regular discussions with you on these issues, that the OPM's guidance on this question has been superseded and is no longer binding.

Since October 2004, the Merit Systems Protection Board (MSPB) has evolved new legal standards regarding the time periods for adjudicating these leave claims. Recent decisions of the MSPB have clearly established that there is no time limitation on the adjudication of claims filed as a result of Butterbaugh. See Garcia v. Department of State, 101 MSPR 172 (2006); Lee v. Department of Justice, 99 MSPR 256 (2005). In recent guidance issued by the OPM to Federal agencies in October 2006, it acknowledged the MSPB's case law on this issue as well as the position of the Department of Labor and the Office of Special Counsel that Federal employers are bound by it. Therefore, Department components may adjudicate administrative claims for restoration of leave based on the Butterbaugh decision that date back to when the individual was first employed by the component, without regard to the 6-year time limitation that the OPM initially suggested in October 2004.

As in all leave claims, however, the burden of proof is still on the employee. Recent MSPB decisions have required employees to cite the specific dates they were charged military leave for non-workdays and the specific dates they were forced to use annual leave or LWOP, and to provide records in support of the claim. See Dombrowski v. Department of Veterans Affairs, 102 MSPR 160 (2006). An employee making a claim therefore must supply a copy to his or her employing agency of the employee's orders, certification of attendance, or other documentation indicating that he or she engaged in one or more periods of active military duty that included nonworkdays during the applicable claims period. Department components are encouraged to request documentation from employees to support their claims, as well as to examine the time and attendance records kept by the components themselves.

Any annual leave credited as a result of an employee's claim must be placed in a restored leave account in accordance with 5 U.S.C. § 6304(d)(1)(a) and OPM's regulations at 5 C.F.R. § 630.306, and the restored leave must be used by the employee by the end of the leave year in progress two years after the date of restoration. Employees who have retired or separated may file a claim with their former agency and must receive a lump-sum payment for any annual leave recredited as a result of that claim, paid at the rate of pay the employee was earning at the time of his or her separation or retirement.

If you have any questions, please contact Rachel Villare on (202) 616-3707 or via e-mail at Rachel.Villare@usdoj.gov or Denise Corbitt on (202) 353-7786 or via e-mail at Denise.V.Corbitt@usdoj.gov.

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