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Butterbaugh v. DOJ

United States Court of Appeals for the Federal Circuit

July 24, 2003, Decided



 [*1333]  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). [**2]  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 Guard 1 training.

 [**3]  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

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336 F.3d 1332 *; 2003 U.S. App. LEXIS 14742 **


Subsequent History: On remand at, Remanded by Butterbaugh v. DOJ, 2004 MSPB LEXIS 827 (M.S.P.B., June 24, 2004)

Prior History:  [**1]  Appealed from: Merit Systems Protection Board.

Butterbaugh v. DOJ, 2002 MSPB LEXIS 594 (2002)

Disposition: Reversed and remanded.


military leave, workdays, training, non-workdays, calendar days, employees, federal employee, calculating, fiscal year, deference, annual, computation, charging, active duty, reservists, funeral, calendar year, sick leave, intervening, attend, military training, training period, long-standing, measured, counted, statutory interpretation, national guard, Personnel, agencies, rulemaking

Governments, Federal Government, Employees & Officials, Administrative Law, Judicial Review, Standards of Review, General Overview, Pensions & Benefits Law, Governmental Employees, US Civil Service Retirement System, Judicial Review, De Novo Standard of Review, Civil Procedure, Appeals, De Novo Review, Labor & Employment Law, Employment Relationships, At Will Employment, Definition of Employees, Legislation, Interpretation, Military & Veterans Law, Civilian Employees, Agency Rulemaking, Formal Rulemaking, Rule Application & Interpretation, Separation of Powers, Legislative Controls, Informal Rulemaking, Justiciability, Standing, Deference to Agency Statutory Interpretation, Business & Corporate Compliance, Labor & Employment Law, Leaves of Absence, Military Leaves