FAQ

Q: What is a Butterbaugh claim?

A: The Federal Appeals Court in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), ruled that the Justice Department (which was following OPM rules), improperly charged employees for military leave prior to 2000.

Under 5 U.S.C. §6323(a)(1), federal employees who are reservists are allowed "15 days" of annual paid leave for reserve or National Guard training. (The Court used the terms reservist and reserve training to include National Guard members and their obligations.) The petitioners in this case were full-time employees of the Justice Department, Bureau of Prisons at the Federal Correctional Institution in Loretto, PA.

Prior to 2000, the Justice Department, as had most other federal agencies, included days employees were not scheduled to work but would be at reserve training when calculating how much leave an employee used. For example, the Court noted that "an employee (with a Monday-Friday work week) 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." The Court also noted that this policy was applied unevenly, in that non workdays at the beginning or the end of military leave were not counted, but non workdays that fell during the military leave were counted.

Under the example above, an employee whose workweek ran Thursday to Monday had more leave counted against him than an employee whose workweek ran Monday to Friday.

In 2000, Congress amended subsection 6323(a)(3) which sets forth the minimum charge for leave. Subsequently, the Office of Personnel Management "determined that, in light of the new subsection … §6323(a)(1) could no longer be interpreted to charge non-workdays against federal employees’ military leave."

Petitioners filed claims with the Merit System Protection Board claiming that, because of the calculations of military leave, they were forced to use vacation or unpaid leave in order to meet their reserve training obligations. They argued that the Justice Department's policy violated the 1994 Uniformed Services Employment and Reemployment Act "by denying them a benefit of employment based on their military service."

Based on its interpretation of the statute, MSPB ruled that the Justice Department had properly calculated the four employees’ military leave and that petitioners were not denied a benefit of their employment. In its ruling, MSPB concluded that Congress had intended to count calendar days against the 15 day allowance, not just workdays.

AFGE appealed that decision to the United States Federal Circuit Court of Appeals.  The Federal Circuit Court held that the MSPB was wrong:  Congress had not intended for the Justice Department to include non-workdays when calculating military leave. 

As a result, the four employees had been “denied a benefit of employment based on their military service.”  This meant that they were entitled to correction of their military leave balance.  In addition, if they had needed to use annual leave or leave without pay to fulfill their military obligations because of the government’s actions, then they were entitled to compensation.  Recovery of that compensation is a Butterbaugh claim.

Q: How will I get compensated?

A: The claim is processed on an individual basis, and as such, compensation may differ. We cannot estimate compensation until after the merits of your claim has been assessed. If you are still a federal employee, you will be compensated in either military leave (if you are still in the military) or annual leave. In very rare circumstances, current federal employees may be compensated in the form of cash or check. If you are no longer a federal employee, you normally will be compensated in the form of a check.

Q: How far back will you try and get compensation for?

A: Claims can go back to 1980. However, for early years, records may be necessary to support your claim.

Q.  What do I need to do now?

A: The first step is to complete and submit the intake form. Even if you have previously started a claim with AFGE, you will need to submit the intake form again. Without the information, Tully, Rinckey will not be able to process your claim. To get started, download an intake form from this website or request one be mailed to you.

Q: What is the intake form?

A: The intake form is a form that Tully, Rinckey attorneys and their support staff will use to draft other legal documents for you and to open their case file with basic information about your claim. The intake form is the first step that Tully, Rinckey needs you to take so that they can quickly process your claim.  It is important that you fill out this form, even if you previously submitted information to AFGE.

Please fill out the forms as complete as possible to avoid delays in evaluating and processing your claim. Tully, Rinckey will not share any of this information with anyone outside the firm. To get started, simply download an intake form from this website or contact Tully, Rinckey to request that they mail you the form. If you are unsure if you qualify for this claim, send an intake form and they will assess whether or not you qualify.

Q: Will it cost me anything to file my claim now that AFGE has partnered with Tully, Rinckey to process Military Leave claims? 

A: No.  It will not cost you a penny.  AFGE has entered into an arrangement with Tully, Rinckey such that no Reservist or former Reservist will be charged anything, no matter what.  The Agency involved instead will pay attorneys fees upon the successful completion of your case.  This will not take any money out of your pocket. 

Tully, Rinckey will need to provide you with a document that explains the fees they normally charge and which also states that they (as well as AFGE) will be your attorneys.  This is called a retainer agreement.  You will need to sign this document and return it to Tully, Rinckey.  While this document discusses fees, you will absolutely not be charged any fees.  The reason that you need to sign this document is because, without it, Tully, Rinckey cannot get any compensation from your Agency for the work they perform for you.  Again, any amount that your Agency pays for attorney’s fees will not be money coming out of your pocket.  

Q: What if I am subjected to retaliation at work because of this?

A: Unlike when you file an administrative claim as OPM suggests you should do, if you allow AFGE and Tully, Rinckey to file a USERRA appeal on your behalf, you are protected by USERRA’s anti-retaliation provisions. Under USERRA you may not be denied employment, promotion, or any other benefits because you exercised your rights under USERRA. In addition, under most circumstances your civilian chain of command is not notified by the lawyers defending the Agency in order to prevent you from being subjected to retaliation (and the Agency being subjected to another USERRA appeal which would cost a lot more than a few days of leave.)

Q: What happens after I send in the retainer agreement and appeal form to Tully, Rinckey?

A: Once Tully, Rinckey receives your signed retainer agreement and USERRA appeal form, they will file the appeal form with the appropriate regional office of the United States Merit Systems Protection Board. Within three days of filing the appeal form, the regional office will assign an Administrative Law Judge to handle the appeal. The Administrative Law Judge will then issue an acknowledgment order setting some basic ground rules for the processing of your appeal. The acknowledgment order will be sent to you, the Agency and to Tully, Rinckey. If you need to do anything in response to the acknowledgment order, Tully, Rinckey will take care of it for you.

After the acknowledgment order is issued, the Agency will serve upon you, the Board and Tully, Rinckey a designation of representative form. This will tell Tully, Rinckey who the Agency point of contact is for all matters to your appeal. This will normally arrive in the mail 15-20 days after the acknowledgment order.

Shortly after you receive the designation of representative form, Tully, Rinckey should receive the Agency tab file. The tab file will normally be received about twenty to twenty-five days after the acknowledgment order. The tab file is the Agency's response to your allegations. It is normally very lengthy.

Once the tab file is received, Tully, Rinckey will enter into settlement negotiations with the Agency representative. If settlement talks are not successful, Tully, Rinckey will normally engage in discovery. Discovery is a way for the Agency and Tully, Rinckey to obtain additional information about the appeal. If they need to answer discovery demands, this will be the first time that they will need your assistance. They will contact you and tell you exactly what information you need to provide to them so that they can provide it to the Agency.

Sometimes, the Judge may issue an “order to show cause” asking that Tully, Rinckey explain certain issues. These types of orders usually require them to respond within a very short period of time. Normally, they will need to contact you to obtain information. Because of the short time period, if you are planning to be unavailable for any period of time, please let them know in advance.  That way, if an order comes in they can request an extension to respond. After discovery is complete, the Administrative Law Judge will issue a pre-hearing submission date and schedule a hearing. Tully, Rinckey will file all necessary paperwork associated with this order.

Assuming no settlement is reached, there will be a hearing. After the hearing, the Administrative Law Judge will issue an initial decision. If either the Agency or Tully, Rinckey believes errors were made with the initial decision, the decision can be appealed to the full three-person Merit Systems Protection Board in Washington, DC. Normally, the three-person board will issue a decision within twelve months from the date of the initial decision. If the Agency or Tully, Rinckey believes that errors were made with the final decision, the Agency or Tully, Rinckey may decide to appeal to the United States Federal Court of Appeals for the Federal Circuit. The Federal Circuit normally takes twelve to twenty-four months to decide on the matter.

If during any stage of the litigation or even after the litigation is over you feel that you are being subjected to retaliation because you filed the USERRA claim, please report this to AFGE and Tully, Rinckey immediately. It is unlawful for anyone to retaliate against you for exercising your rights under USERRA.

Q: What type of evidence do I need to prove that I qualify?

A: Tully, Rinckey will definitely need at least a sworn statement (which they will draft) and your reserve/national guard annual retirement points statement. In addition, if you have any military orders or civilian payroll records pre 2000 that establishes when you were charged leave on non work days, please provide those to Tully, Rinckey as well. Generally, Tully, Rinckey will not need these documents until they get the Agency tab file and see what the Agency is missing. Do not send Tully, Rinckey original records. Please photocopy any of your correspondence and send the copy to Tully, Rinckey. 

Q: What are settlement conferences?

A: This is when the Judge from the Merit Systems Protection Board orders the Agency and Tully, Rinckey to talk about settlement. Normally, the Judge will try and negotiate an agreement to avoid the necessity of a hearing. Normally these conferences are via the telephone and result in solid settlement offers from the Agency to you.

Q: Will my case settle?

A: In the past, 99% of 'Butterbaugh' cases have settled. In rare circumstances the Agency may want to have a hearing (normally it is when the claim is pre-1994 and both the Agency and you can't produce evidence to show clearly that you were charged leave on non work days).

Your case cannot settle without your explicit consent and normally the settlement will be in writing and require your signature.

Q: What is a DWOP?

A: A dismissal without prejudice. This happens in some cases if the Agency is unable to produce your time and attendance records quickly. (Normally, this is limited to cases involving DFAS which, for some reason, can't find employee records very easily). In addition, it happens when the Agency has no evidence of a violation and you can't produce any evidence to show a violation. A DWOP allows Tully, Rinckey to withdraw the claim now and re-file it at a later date without any problems.

Q: I received all these documents from my Agency, what should I do?

A: You don’t need to do anything! We will do everything for you. These documents are either the Agency tab file or responses to Tully, Rinckey’s discovery demands on your behalf.   Under applicable regulations, the Agency has to send these documents to you at the same time that it sends them to Tully, Rinckey for you.

Q: If I already filed a claim, can I now go back further under new guidance?

A: This will depend on the circumstances of the prior claim. If you previously filed an administrative claim for 1999 and 2000, you should be able to file another claim.  Please indicate any prior military leave claims and any compensation received on the USERRA Intake Claim form that you send to Tully, Rinckey. If you previously filed a USERRA claim and received compensation, re-filing terms will be dictated by the signed settlement agreement with the Agency. Resubmit a USERRA Intake Claim form so our attorneys can determine if another claim is permitted.

Q: If I am retired from military or civilian service, can I file a claim?

A: Yes. Claims are for both current and former employees that have served in the Reserves and/or the National Guard. If you are retired, please indicate so on the USERRA intake form. This is important for purposes of settlement negotiations and compensation. Also, if you worked at several agencies, please indicate that on the USERRA intake form.

Q: Is this case a class action lawsuit? 

A: No. This is not a class action lawsuit. That means that everybody has to file an individual claim.  That also means that you will get your case processed faster if you help by returning necessary paperwork and responding to questions promptly.

Do you see a mistake or inaccuracy in this page? Please report it.