Pre-Enactment USERRA Jurisdiction Affirmed By Federal Circuit

On August 27, 2007, the United States Court of Appeals for the Federal Circuit reversed in part the Merit Systems Protection Board's decision in Hernandez v. Dept. of the Air Force, 102 M.S.P.R. 515 (2006). Hernandez v. Dept. of the Air Force, Case No. 2006-3375. The court adopted the Board's recent case law to extend the Board's USERRA jurisdiction over "Butterbaugh" claims to violations predating the 1994 enactment of USERRA-the Uniformed Services Employment and Reemployment Rights Act. The Butterbaugh decision found that the government had erroneously charged military leave to employees serving on active military duty for each day of absence when it should have been charging only for missed work days.

Mr. Hernandez was a retired aircraft mechanic for the Department of the Air Force and former reservist who sought Butterbaugh relief for the Department's improper calculation of his military leave entitlement from 1980 to 2001, forcing him to instead deplete annual leave or sick leave or to go on LWOP status during military deployments. As part of his discovery efforts, Mr. Hernandez moved for subpoenas for all of his leave records from 1980-2001 from the Defense Finance and Accounting Service. The administrative judge granted the motion, but limited the scope of the subpoenas to only cover those dates after October 13, 1994-the date of enactment for USERRA-on the understanding that USERRA's remedial authority was not retroactive.

Based on records produced, Mr. Hernandez identified 12 post-1994 dates where military leave was improperly charged. The agency recredited leave for those dates, and then moved successfully to dismiss the appeal as moot. Mr. Hernandez then appealed to the Board. While that appeal was pending, the Board issued its decision in Garcia v. Dept. of State, 101 M.S.P.R. 172 (2006), finding that USERRA remedial authority extended to pre-enactment USERRA violations. Nonetheless, the Board found the administrative judge's ruling to be harmless and/or non-prejudicial error and refused to remand the case. Mr. Hernandez then appealed to the Federal Circuit.

The Federal Circuit reversed the Board as to Mr. Hernandez' pre-enactment USERRA claims. The court first adopted the Board's Garcia analysis. The court found the administrative judge's error in limiting the scope of subpoenas to be neither harmless nor insufficiently prejudicial as to avoid remand. Instead, "[o]nce the AJ issued a subpoena, he had an obligation to tailor it in accordance with the correct law." Accordingly, the court remanded for further proceedings as to the pre-enactment USERRA claims, with instruction to the administrative judge to rectify the prior subpoenas so as to afford Mr. Hernandez the opportunity to more fully pursue discovery.