The Butterbaugh fallacy

Air Force Law Review, Spring, 2008 by Philip D. Donohoe

The court of appeals' review of the pertinent legislative history explained why employee-reservists had been incorrectly charged military leave for many years pre-2000. The cause was a legal error of statutory interpretation or statutory construction committed by OPM, a mistake of law. OPM (and the Civil Service Commission before it) had incorrectly interpreted congressional intent as it pertained to the charging of military leave under [section] 6323. The court's review of [section] 6323's history led the court to one inescapable conclusion: OPM's legal interpretation of congressional intent concerning what [section] 6323 required was wrong. All federal employee-reservists had been incorrectly charged military leave for many years pre-2000 (and all employees had been denied that benefit of employment) only because OPM made a legal error of statutory construction. However, being denied a benefit of employment "because of" or "due to" a bona fide error is manifestly not the equivalent of being denied a benefit of employment "because of" or "due to" military status or the performance of military service.

The correct and dispositive USERRA question (the second essential USERRA question) in all Butterbaugh appeals is, Was an employee's military status or military service "a motivating factor" for OPM to commit its legal error of statutory construction and, based on that error, incorrectly require that military leave be charged for non-workdays? Stated differently, did OPM commit its legal error misinterpreting [section] 6323 (and, as a result, incorrectly require that military leave be charged for non-workdays) "because of" or "due to" any employee's performance of military service? In light of the court of appeals' Butterbaugh decision, the answer to both questions is obviously, "no." No employee's military status or military service caused OPM's mistake of law. Employees were mis-charged military leave before 2000 only because of and only due to the fact that OPM made a mistake of law when it incorrectly interpreted [section] 6323.

Perhaps the clearest illustration of this point is found in the Board case Crawford v. Department of Transportation. (41) In a sense, Crawford presents the "reverse" of the Butterbaugh facts and for that reason warrants close review. Crawford also shows the validity of the three points: (1) an agency's action misinterpreting this federal statute ([section] 6323) is a "mistake of law" (concerning the mandate of the federal statute); (2) such a misinterpretation of law is not "due to" or "because of" an employee-reservist's military status or performance of military service; and, (3) therefore, the resulting agency action cannot be held to violate USERRA.

In Crawford, the Department of Transportation (DOT) had initially granted "Service Computation Date" (SCD) credit for leave accrual purposes to an employee based on the employee's prior attendance at the Coast Guard Academy. Eight months later, however, OPM held that the granted SCD credit was actually barred by the applicable statute, 10 U.S.C. [section] 971(b). (42) OPM then instructed the DOT to re-calculate the employee's SCD without any credit for military academy attendance, effectively "denying the benefit of employment." (43) The employee appealed to the Board, asserting a USERRA violation. (44) The MSPB Administrative Judge (AJ) noted in the Initial Decision "the pivotal issue was whether the appellant's military service was a substantial or motivating factor in [OPM's]" denial of SCD credit for his military academy attendance. (45) Most importantly, "the AJ [also] found that the appellant did not prove a discriminatory motive [violative of USERRA] because the agency was simply following OPM's letter providing guidance on this issue, and the agency believes that OPM's guidance is correct." (46)