Case report for 2018
Docket Number: DE-4324-14-0013-I-1
Case Number: 2017-1223
Issuance Date: February 9, 2018
The Petitioner was a General Attorney in the Office of Counsel for the aviation subordinate command of the Defense Logistics Agency (DLA) within the Department of Defense (DOD), as well as a member of the U.S. Army Reserves. He received an order from the U.S. Army on April 17, 2013, which was within the one-year window of a national emergency made by President Barack Obama, to replace a civilian attorney employed at the Naval Surface Warfare Center (NSWC) who was deployed to Afghanistan. He reported for duty on April 22, 2013, serving 162 days, until September 30, 2013. It went undisputed that he used his 15 days of military leave and most of his accrued annual and advanced annual leave by August 26, 2013. He requested an additional 22 days of leave pursuant to 5 U.S.C. § 6323(b) to avoid being put on unpaid military leave for the remainder of his service. The request was denied by the DLA, stating that he was not “not under contingency orders”. DLA again denied his Request for Leave or Approved Absence through the Office of Personnel Management Form 71, using the same reasoning about his active duty not supporting a contingency operation. The petitioner filed a Board of appeal, stating that the DOD failed to grant him military leave while on active duty, violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Administrative Judge (AJ) denied his claims and dismissed his appeal. The Board then issued a decision that two Board Members could not come to an agreement and the decision was to dismiss according to the initial decision made by the AJ.
The Petitioner appealed to the U.S. Court of Appeals for the Federal Circuit. The court concluded that the Board had abused its discretion when determining that the Petitioner was not to be granted additional leave under to 5 U.S.C. § 6323(b). The Court reversed the Boards final decision and rejected their counterarguments. The Court noted that its decision did not mean that all reservists called to active duty during a national emergency should be entitled to additional leave, but that each individual reservist must demonstrate that their call to active duty was “in support of a contingency operation” as this case was.
Although Attorney Kirk J. Angel did not represent the above Petitioner, he does represent civilian federal employees of the Department of Justice in hearings held by MSPB and the U.S. Court of Appeals.