CPM 2004-19 - October 13, 2004
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
FROM:
|
KAY COLES JAMES
Director
|
SUBJECT:
|
Administrative Claims for Annual Leave as a Result of Decision in
Butterbaugh v. Department of Justice
|
This memorandum provides guidance to assist agencies in 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)). In a July 24, 2003,
decision, the U.S. Court of Appeals for the Federal Circuit ruled that, pursuant
to 5 U.S.C. 6323, employees were required to take military leave only on days
on which they were required to work and that agencies should have allowed 15
workdays of military leave for reserve training (instead of 15 calendar days,
as the language in this section was previously interpreted and applied prior
to the court's ruling). Therefore, the court ruled that agencies should not
have charged military leave for nonworkdays that occurred within the period
of military duty prior to the change in the military leave law that became effective
on December 21, 2000. On this date, 5 U.S.C. 6323(a) was amended to include
a new paragraph (3), which for the first time allowed employees to take military
leave on an hourly basis. Following enactment of this amendment, employees were
no longer required to take leave for nonworkdays.
The plaintiffs in Butterbaugh maintained that, because they were charged military
leave for nonworkdays within their period of military duty, they exceeded their
allowance of 15 days of military leave each fiscal year and were forced to take
leave without pay and/or annual leave to complete their annual reserve training.
In response to the Butterbaugh decision and in anticipation of the additional
claims that will result, we are issuing this guidance on the procedures for
processing employees' administrative claims for crediting annual leave as a
replacement for military leave that was charged on nonworkdays. Agencies should
inform employees of the holding under the Butterbaugh decision in order to give
notice to potential claimants. You may use this memorandum to notify employees
of this decision.
Under the Barring Act of 1940 (codified at 31 U.S.C. 3702), a leave claim against
the Government must be received by the agency that conducts the activity from
which the claim arises within 6 years after the claim accrues. Therefore, agencies
may accept claims filed after July 24, 2003 (the date the Butterbaugh decision
was issued), for crediting additional leave for military leave charged on nonworkdays
between the date 6 years prior to the claim filing date (the beginning of the
6-year claims period) and December 21, 2000 (the date of the change in the military
leave law). For example, if an employee filed a claim on August 1, 2004 (after
the court's decision and prior to the issuance of this guidance), the agency
must consider any period of military service between August 1, 1998, and December
21, 2000. If an employee files a claim on January 15, 2005, the agency will
consider any period of military service between January 15, 1999, and December
21, 2000, in crediting annual leave.
As in all leave claims, the burden of proof is on the employee. An employee
making a claim 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 described in the preceding paragraph.
Employees will be credited for 1 day of annual leave for each nonworkday occurring
within a period of active duty for which he or she was charged military leave.
A maximum of 4 days of annual leave may be credited for each fiscal year.
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 CFR 630.306, and the restored leave must be used by the employee
by the end of the leave year in progress 2 years after the date of restoration.
(For employees who receive annual leave credit in leave year 2004, the time
limit for using the recredited leave will be the end of leave year 2006, which
is January 6, 2007.) 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.
Employees should contact their agency human resources offices for information
on procedures for filing a claim. For additional information on crediting annual
leave to members of the Reserves or National Guard, agency Chief Human Capital
Officers and/or Human Resources Directors may contact their assigned OPM Human
Capital Officer.
cc: Chief Human Capital Officers
Human Resources Directors