The Butterbaugh fallacy.

• Author: Donohoe, Philip D.

1. INTRODUCTION II. BACKGROUND III. THE USERRA ISSUE A. A Butterbaugh Appellant's Prima Facie USERRA Burden 1. The First Essential USERRA Question: Were Employee Denied a Benefit of Employment? 2. Dicta and the Second Essential USERRA Question: Was the Denial of the Benefit of Employment "Because of" or "Due to" the Employee's Military Service? B. The Board's Remand Decision C. The Actual Cause for the Incorrect Charging of Military Leave IV. OPM's MISTAKE OF LAW PRECLUDES SHOWING A USERRA VIOLATION V. THE LOGICAL FLAW: POST HOC; ERGO, PROPTER HOC VI. NO DISPARATE TREATMENT: EMPLOYEE-RESERVISTS RECEIVE THE SAME LEAVE BENEFITS AS NON-RESERVIST EMPLOYEES PLUS MILITARY LEAVE VII. MILITARY LEAVE IS UNIQUE; NO COMPARABLE LEAVE IS AVAILABLE TO NON-RESERVIST EMPLOYEES VIII. CONCLUSION I. INTRODUCTION

   "Butterbaugh appeals" to the U.S. Merit Systems Protection Board (MSPB), filed by federal employees based on the Uniformed Services Employment and Reemployment Rights Act (1) (USERRA), seek compensation for "military leave" erroneously charged by federal agencies for many years. (2) Litigating those many appeals has imposed substantial costs upon all federal agencies in administrative litigation manpower, "leave credits" awarded by the MSPB to current employees, and money payments awarded to former and retired employee-reservists who prevail before the MSPB. Most recently, an August 2007 Butterbaugh decision by the U.S. Court of Appeals for the Federal Circuit permits MSPB appellants to reach back as far as 1980. (3) This result yielded an estimate from appellant's counsel that Butterbaugh appellants could number "300,000 federal employees" and "the average compensation per employee could be more than $3000." (4) Putting aside federal costs already incurred from Butterbaugh MSPB appeals, even a fraction of that $900 million estimate (not including attorney fee awards to MSPB appellants' counsel) (5) shows Butterbaugh appeals are having and will continue to have an enormous impact on all federal agencies' resources and funds.

   At the heart of every Butterbaugh appeal is fatally-flawed logic, a textbook mistake in reasoning, (6) termed here "The Butterbaugh Fallacy." This article demonstrates the MSPB's flawed reasoning--the errors of law and logic underlying every Butterbaugh appeal. Further, it shows why no employee was, in fact, erroneously charged military leave "due to" or "because of' the employee's military status or military service, the sine qua non of every USERRA-based Butterbaugh appeal, (7) and thus any Butterbaugh appeal filed with the MSPB must be dismissed as a matter of fact and of law.

2. BACKGROUND (8)

   The federal statute at issue, 5 U.S.C. § 6323(a)(1) ("§ 6323"), grants to federal employees who also happen to be U.S. military reservists ("employee-reservists") the benefit of being absent from their civilian jobs for fifteen days annually to perform military service. (9) Their absences from federal, civilian employment to perform military duty are chargeable as paid "military leave." However, prior to § 6323's amendment in 2000, (10) the U.S. Office of Personnel Management (OPM) interpreted the statute to require that all federal agencies charge employee-reservists military leave even when the day on which the employee was absent from the civilian workplace performing military duty wasn't a civilian workday for that employee. (11) These "non-workdays" were typically weekend days or federal holidays, but were all days on which the employee had no obligation to be present at the federal, civilian employment workplace. The end result prior to § 6323's amendment in the year 2000 was that, for example, employee-reservists with a consecutive five-day, civilian employee workweek (Monday through Friday) who were absent performing military duty on seven, consecutive days were charged seven days of military leave, rather than five days (to cover their five-day civilian workweek), thus debiting their military leave balance for absence performing military duty on two non-workdays. In short, they were charged military leave for two days on which they had no obligation at all to be present at their federal, civilian workplace. (12)

   Department of Justice (DO J) employees who had been charged military leave for non-workdays under OPM's pre-2000 policy, applying § 6323, appealed to the Merit Systems Protection Board ("Board"), asserting a USERRA violation and seeking compensation for the previously mis-charged military leave. Following an adverse decision by the Board in 2002, (13) they appealed further and in 2003, in Butterbaugh v. Department of Justice, the U.S. Court of Appeals for the Federal Circuit held OPM's pre-2000 interpretation of § 6323's military leave charging requirements was error. (14) The court of appeals held that contrary to OPM's statutory interpretation of § 6323, the statute hadn't required or allowed agencies to charge military leave for an employee-reservist's absence from work on non-workdays (OPM's pre-2000 military leave charging practice and that of all federal agencies ceased when § 6323 was amended by Congress in 2000). (15) Butterbaugh has spawned hundreds, perhaps thousands, of MSPB appeals based upon USERRA, alleging discriminatory treatment "due to," "because of," or "motivated by" the appellants' performance of military duty, filed by employee-reservists who worked in any federal agency during the decades prior to the 2000 amendment of § 6323, to recover under USERRA for "mis-charged" military leave. (16)

3. THE USERRA ISSUE

   Central to the Butterbaugh case was whether the pre-2000, OPM-mandated policy charging employee-reservists military leave for non-workdays violated USERRA; (17) specifically, USERRA's § 4311 (18) barring discrimination "because of" or "due to" military status or the performance of military service. The two essential USERRA questions in Butterbaugh were: (1) Did the agency practice charging military leave for non-workdays deny employees a benefit of employment?; and (2) If so, was the employee's military status or military service obligation "a motivating factor" for that denial (or, was the denial of the benefit of employment "because of" or "due to" the employee's military status or performance of military service)? Answering affirmatively to both essential USERRA questions demonstrates a violation of USERRA's § 4311(a) & (c). (19)

   This article demonstrates the following: (1) While the answer to the first USERRA question above is certainly "yes," neither the Board nor the U.S. Court of Appeals for the Federal Circuit has ever ruled the answer is "yes" to the second essential USERRA question; (2) The answer to the second essential USERRA question must be "no", as a matter of fact and of law; and, it necessarily follows that no federal employee-reservist can meet the prima facie USERRA burden in reliance on Butterbaugh; and, (3) Any assertion that the answer to the second essential USERRA question is "yes" succumbs to the post hoc; ergo, propter hoc error in reasoning, which is at the core of "The Butterbaugh Fallacy."

   Because no employee-reservist (MSPB appellant) can successfully shoulder the USERRA prima facie burden as a matter of fact and law, any MSPB appeal based upon the Butterbaugh case must be dismissed for that reason.

   1. A Butterbaugh Appellant's Prima Facie USERRA Burden

      An employee's USERRA burden in an MSPB Butterbaugh appeal was stated by the Board as follows: "To prevail in their appeal, the appellants must prove by preponderant evidence that their military status or obligations were a motivating factor for the denial of a benefit of employment ...." (20) For convenience, the Board's description of the USERRA prima facie burden levied upon a Butterbaugh appellant is simply reversed in order here.

      1. The First Essential USERRA Question: Were Employees Denied a Benefit of Employment?

         The Board's 2002 Butterbaugh decision (later reversed by the U.S. Court of Appeals for the Federal Circuit, discussed and cited below) hinged on the Board's view of the correct interpretation of § 6323, based on the Board's reading of congressional intent:

         The ordinary meaning of "day" is a calendar day. Thus, because the statute granted reservists and National Guardsman [sic] up to 15 days of military leave, absent some other applicable definition of "day," of which we are unaware, it can be assumed that Congress meant 15 calendar days. Accordingly, the agency's military leave granting policy provided the appellants exactly the benefit they were entitled to under the law in effect at the time of the leave at issue in this appeal. ... ... If Congress had intended military leave to be charged differently, it could have amended the statute, as it did [later] in 2000. Its failure to do so prior to that time indicates approval with the way military leave was being charged. ... ... [W]e find that the appellants have failed to identify how the agency's actions denied them a benefit f employment.... [T]he fact that the agency charged military leave for intervening non-workdays ... is not sufficient to establish that the agency's practice denied the appellants a benefit of employment due to their performance of duty in the uniformed service. Accordingly, the appellants' request for relief is denied. (21) The Board's rationale in its 2002 Butterbaugh decision makes clear it answered "no" to the first essential USERRA question, thus finding the employee was not denied a benefit of employment by the agency. The appellants' prima facie case failed for that reason and the Board's 2002 Butterbaugh holding went no further. Board comments unnecessary to its 2002 holding, addressing the second essential USERRA question (22) are dicta because the appellants failed to survive Board scrutiny regarding the first essential USERRA question.

         The Board's 2002 Butterbaugh decision and its rationale, quoted above, were rejected by the U.S. Court of Appeals for the Federal Circuit. (23)...