Ruling on back pay for federally employed reservists faces challenge

The Agriculture Department has decided to appeal a court ruling that could make federal employees who served in the military reserves eligible to receive compensation for wrongly charged leave as far back as the 1980s.

Administrative Judge Philip Reed of the Merit Systems Protection Board ruled in late November that Agriculture employee John Collins qualified for compensation back to the start of his service in 1989 because the agency illegally charged him military leave for weekends and holidays when he served in the reserves.

The case is noteworthy because it would significantly push back the 1994 cutoff year established by a previous ruling.

The department, which had until Jan. 6 to appeal, has decided to bring Reed's ruling to the full MSPB, said James Kelly, Agriculture's acting general counsel. MSPB said it has not received an appeal, but that documents postmarked by the deadline are acceptable, and there are some delays in the mail process.

Collins, like other federal employees, has said he was improperly forced to use annual leave, sick leave and leave without pay to complete his military obligation while employed at the Food Safety and Inspection Service in Alameda, Calif. For example, he said he was charged military leave when performing military duties on Saturdays and Sundays, quickly using up the 15 days granted to federal employees in the reserves.

Until the November ruling, federal employees were eligible for the back pay only until 1994, when the Uniformed Services Employment and Reemployment Rights Act was passed. Reed's ruling opens the door for earlier cases of wrongfully charged leave to be considered.

"The military is dependant on citizen soldiers such as reservists and National Guard," said Mathew Tully, Collins' attorney. "To penalize citizen soldiers, who are the basic element of our free society, would jeopardize the free American society we have."

Tully, whose firm Tully, Rinckey & Associates of Albany, N.Y., represents federal employees in many of these cases, said that until this decision his firm accepted claims dating back only to 1994, but now they will accept them back to 1980. Tully estimates that with the extended dates, about 200,000 federal employees could be eligible for compensation.

According to Tully, the average cash settlement in the roughly 2,000 cases his firm has handled is $3,800. Settlement agreements vary, though, with some agencies awarding flat fees and some using complex calculations to determine back pay, he said.

In July, the full MSPB ruled that federal workers who served in the military reserves between 1994 and 2000 may be eligible for retroactive compensation. Prior to that ruling, OPM had administered guidance to federal agencies that stated employees could recover leave from 1999 on.

Kelly said he could not comment on the case beyond its status because it is ongoing litigation.