Court Takes Broad View of Military Leave Entitlement

A federal court has overturned an MSPB decision involving military leave for federal employees who are called to active duty as reservists, saying the merit board read that entitlement too narrowly.

The case involved a DoD employee called to active duty in another component of that department—although only to work in a different office, not overseas—to replace another civilian employee who had been mobilized and sent to Afghanistan. He used up his entitlement to the standard annual 15 days of military leave and then requested the 22 additional days of military leave allowed for those called to active duty “in support of a contingency operation.” DoD denied that request on grounds that he was not under “contingency” orders; MSPB agreed.

However, the Court of Appeals for the Federal Circuit found that his call to active duty was in support of a contingency operation. That definition covers even indirect assistance to a military operation that results in such callups, it said.

“The court noted that its holding did not mean that all reservists called to active duty during a national emergency will be entitled to additional leave because they must demonstrate that their call to active duty was ‘in support of a contingency operation,’” the MSPB said in a summary of the decision.