Fed Cir. Throws Out Butterbaugh Claim for Lack of Evidence - Federal Circuit
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Fed Cir. Throws Out Butterbaugh Claim for Lack of Evidence

As a matter of law, certain military workers are entitled to 15 days of military leave each year to attend training. These days cannot be charged against non-workdays. As a result, it’s common practice for these military workers to file claims seeking compensation for military leave charged on those non-working days. These claims are known as Butterbaugh claims, after the case Butterbaugh v. Dep’t of Justice.

It’s exactly this type of claim that Nyles Duncan attempted to assert before the Federal Circuit Court of Appeals. He argued that the Air Force — his civilian employer — had charged him military leave on non-work days in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

At the outset, one huge problem with Mr. Duncan’s case was that he failed to offer strong evidence. The strongest evidence he offered was oral testimony to the fact that he took annual leave because his military leave was exhausted.

He also offered into evidence a table created by his counsel to visually demonstrate the days on which he had to take annual leave instead of military leave.

What he failed to do was to provide time and attendance records, leave and earning statements or anything else that would show that the Air Force charged him military leave or annual leave.

While the Administrative Law Judge at the initial hearing granted Mr. Duncan’s request for compensation on the days he requested, the Air Force filed a petition for review to the Merit Systems Protection Board. Subsequently, the Board reversed the initial decision, citing that “the Board has required more than an appellant’s personal recollection and reliance on military documents to carry the burden of proof.”

The Federal Circuit Court of Appeals affirmed the Board’s decision.

The lesson here: If you’re going to file a Butterbaugh claim on behalf of your client, make sure that you obtain the attendance records from your client’s civilian employment.

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