Nyles Duncan v. Department of the Air Force

United States Court of Appeals
for the Federal Circuit
__________________________
NYLES DUNCAN,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2011-3053
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. NY0752100081-I-1.
___________________________
Decided: March 29, 2012
___________________________
ANDREW L. M CNAMARA , Tully Rinckey, P.L.L.C., of Al-
bany, New York, argued for petitioner. Of counsel were
M ATHEW B. TULLY and S TEVEN L. H ERRICK .
D OUGLAS T. H OFFMAN , Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. D AVIDSON , Director, and
FRANKLIN E. WHITE, JR., Assistant Director. Of counsel on
the brief was NINA R. PADALINO , Captain, United States
Department of the Air Force, of Washington, DC.

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DUNCAN v. AIR FORCE 2
__________________________
Before RADER , Chief Judge, O'M ALLEY, and REYNA,
Circuit Judges.
RADER, Chief Judge.
The Merit Systems Protection Board (“Board”) held
that as a matter of law the petitioner Nyles Duncan had
not provided sufficient evidence to substantiate his claim.
Because, under the facts of this case, Mr. Duncan failed to
offer sufficient evidence to support his claim, this court
affirms.
I.
Federal employees are entitled up to 15 days each
year of military leave to attend training as a member of a
reserve of the armed forces (e.g., the Air Force) or member
of the National Guard. 5 U.S.C. § 6323(a)(1). In Butter-
baugh v. Dep’t of Justice, this court held that federal
agencies cannot charge military leave on non-
workdays (e.g., weekends). 336 F.3d 1332, 1338-39 (Fed.
Cir. 2003). Since that decision, many petitioners have
filed Butterbaugh claims seeking compensation for the
charging of non-workdays against military leave.
Here, Mr. Duncan worked as a civilian for the De-
partment of the Air Force until his retirement in 2005.
From 1980 to 1998, Mr. Duncan was also in the Air Force
Reserve. To meet his reserve obligation, he performed 12
days each year of active duty plus additional duty for
training.
In 2009, Mr. Duncan filed a Butterbaugh claim with
the Board. Mr. Duncan alleged that the Air Force had
charged him military leave on non-workdays in violation
of the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994 (USERRA), causing him to

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DUNCAN v. AIR FORCE 3
exhaust his military leave and therefore to use his annual
leave to meet his reserve obligation. At the outset, he
alleged that the Air Force improperly charged him with
military leave for 38 days on various weekends from July
26, 1980 to March 8, 1998. Because he had to take mili-
tary leave for those non-workdays, he prematurely con-
sumed the 15 days of military leave allotted to him each
year. Therefore, Mr. Duncan alleged that he had to
prematurely take annual leave to perform reserve duty on
6 days in 1996 and 1997 (September 27, 1996, and April
28 to May 2, 1997). His claim seeks compensation for
those 6 days.
At the hearing, the following testimony was the sole
evidence Mr. Duncan proffered on direct examination in
support of his allegations as to events on those 44 days
(i.e., whether he was charged military and annual leave):
Q: Were you charged military leave on these
dates alleged in the prehearing submission?
A: Yes.
Q: And what type of leave were you
forced to take in order to participate in
military duty as a result of this mis-
charged military leave?
A: Annual leave.
[statements by counsel omitted]
Q: Mr. Duncan, were you on active duty on Sep-
tember 27th, 1996?
A: Yes.
Q: Do you recall if you had exhausted your mili-
tary leave with the Agency by this time?
A: Yes.

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DUNCAN v. AIR FORCE 4
Q: What were you forced to do on September
27th, 1996, to fulfill your military obligations?
A: Take annual leave.
Q: And Mr. Duncan, were you on active duty on
April 28th, 1997, through May 2nd, 1997?
A: Yes.
Q: And do you recall if you had exhausted your
military leave with the Agency by that time?
A: Yes.
Q: And what were you forced to do on April 28th,
1997, to May 2nd, 1997, to fulfill your military
obligation?
A: Take annual leave.
Hr’g Tr. 11:1-12:10, Jan. 27, 2010. Mr. Duncan also
proffered two documents created by his counsel. Hr’g Tr.
63. First, a standard calendar from an online source
showing the months and days for the years 1980 to 1998,
on which his counsel made handwritten notations to
visually demonstrate the dates about which Mr. Duncan
testified. Second, a table created by his counsel again to
visually demonstrate the dates about which Mr. Duncan
testified. Mr. Duncan also proffered his military records,
which do not show whether military or annual leave was
charged but instead show the days Mr. Duncan performed
reserve duty.
Mr. Duncan did not provide his civilian records (also
called time and attendance records, leave and earning
statements, or leave slips), which would identify any
dates the Air Force charged him military or annual leave.
Hr’g Tr. 40:3-8; 64:3-16. Counsel for the Air Force repre-
sented that if Mr. Duncan had provided his civilian re-
cords and the records showed that he took annual leave as

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DUNCAN v. AIR FORCE 5
a result of improperly charged military leave, the Air
Force would have compensated him for those days. Hr’g
Tr. 38:17-22. In this case, however, it is undisputed that
Mr. Duncan’s civilian records no longer exist, a fact that
the Air Force admitted in a sworn declaration and that
the Air Force’s counsel conceded at oral argument. See
Decl. of Jimmy D. Mannon, Resp’t’s App. 66 (“The agency
has no pertinent existing records for appellant.”); Oral
Arg. 15:02-16:16, Sept. 9, 2011 (agreeing that Mr. Duncan
would have been unable to obtain his civilian records from
the Air Force or the National Personnel Records Center).
Thus, all involved agree that Mr. Duncan could not obtain
his civilian records.
The Air Force proffered a witness, Jimmy D. Mannon,
Chief of Employee Relations and Civilian Personnel at the
same Air Force base where Mr. Duncan worked. Mr.
Mannon testified that when a petitioner has provided
documents showing he was actually mischarged leave, the
Air Force has corrected the petitioner’s records and com-
pensated the petitioner for that time. Hr’g Tr. 73:17-20.
He explained: “the military leave is actually charged on
the civilian side, so you’d have to have the civilian pay
records to be able to see that [he was mischarged any
military leave].” Hr’g Tr. 84:23-25.
Mr. Mannon highlighted the existence of case-by-case
inconsistencies in the Air Force’s application of its leave
policy. Hr’g Tr. 74: 14-16, 79:9-22. “It was the supervi-
sors that recorded the time in payroll that actually re-
corded how the time was actually input.” Hr’g Tr. 77:24-
78:2. In other words, some supervisors improperly
charged military leave while others did not: “It just de-
pends on how the employee requested leave and what the
supervisor approved and what they put in on the time-
cards.” Hr’g Tr. 74:14-18. Therefore, “the only way you
can tell [whether Mr. Duncan was mischarged military

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DUNCAN v. AIR FORCE 6
leave] is if you had the civilian pay records to be able to
make the determination then.” Hr’g Tr. 84:15-17.
After the hearing, the Administrative Law Judge
granted Mr. Duncan’s request, finding credible his recol-
lection that “he had to take annual leave to meet his
military obligations.” Duncan v. Dep’t of Air Force, No.
DA-4324-10-0072-I-1, at *8 (Mar. 4, 2010)). The Air Force
filed a petition for review to the Board. The Board
granted the petition and reversed the initial decision.
The Board held that as a matter of law the initial decision
was inconsistent with Board precedent in which:
the Board has required more than an appellant’s
personal recollection and reliance on military
documents to carry the burden of proof . . . The
appellant neither submitted time and attendance
records from his civilian employment, nor showed
that he attempted to obtain these records from the
National Personnel Records Center in St. Louis,
Missouri. We find that the appellant has not
submitted sufficient evidence to establish that,
more likely than not, the agency improperly
charged military leave on non-workdays and that
he was required to use annual leave to fulfill his
military obligations on the dates specified.
Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 278-79
(2010)).
Mr. Duncan appealed. This court has jurisdiction un-
der 28 U.S.C. §1295(a)(9) and 5 U.S.C. § 7703.
II.
This court’s review of the Board’s decision is limited
and governed by 5 U.S.C. § 7703(c). This court affirms
unless the Board’s decision is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with

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DUNCAN v. AIR FORCE 7
the law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.
III.
To obtain compensation for a Butterbaugh claim, the
petitioner must show that he performed reserve duty on
non-workdays, that the agency charged him military
leave on those days, and that he exhausted his military
leave and was charged other leave to fulfill his reserve
obligation. See Pucilowski v. Dep’t of Justice, 498 F.3d
1341, 1344-45 (Fed. Cir. 2007). The petitioner bears the
burden of proof by a preponderance of evidence. See
Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir.
2001); Cobb v. Dep’t of Defense, 106 M.S.P.R. 390, 393
(2007); O’Bleness v. Dep’t of Air Force, 106 M.S.P.R. 457,
461 (2007); Haskins v. Dep’t of Navy, 106 M.S.P.R. 616,
621 (2007).
Here, the first element is not in dispute. Mr. Duncan
provided military records showing that he performed
reserve duty on 38 non-workdays from 1980 to 1998. The
second and third elements (charged military and annual
leave) are at issue in this appeal. Mr. Duncan relied
solely upon his own oral testimony and documents created
by his counsel’s office to prove those elements. Though
the counsel-created calendar and table visually show the
dates on which he testified, these were similar to demon-
stratives summarizing his testimony and not evidence
independent of his testimony to prove the underlying
facts. See Hr’g Tr. 40:3-8; 64:3-16.
The Board has consistently held that civilian records
would be sufficient evidence to satisfy the military and
annual leave elements. See, e.g., Davenport v. Dep’t of
Justice, 104 M.S.P.R. 580, 586 (2007); Cobb v. Dep’t of
Defense, 106 M.S.P.R. 390 (2007); O’Bleness v. Dep’t of Air

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DUNCAN v. AIR FORCE 8
Force, 106 M.S.P.R. 457, 461-62 (2007); Haskins v. Dep’t
of Navy, 106 M.S.P.R. 616, 622-23 (2007). In this case,
the parties agree that those records do not exist, so this
court must consider whether, absent such records, the
Board erred in finding that Mr. Duncan did not establish
his claim.
Here, the Board believed that Mr. Duncan was merely
speculating about having to use annual leave based on his
review of his military records, such that his recollection
was not independent. The Board found that, “it is appar-
ent that these dates are based upon speculation arising
from his review of the DFAS records showing his dates of
military service and his understanding that the agency
would have charged him military leave on non-workdays.”
Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 278-79
(2010)). Accordingly, the Board held that something more
was required to substantiate Mr. Duncan’s claim.
In this case, however, Mr. Duncan did not supply any
evidence other than his testimony. He has not provided,
for example, any other contemporaneous documents,
physical evidence, or witness testimony to corroborate his
testimony. The record does not show that all corroborat-
ing evidence was unavailable.
Furthermore, the record reflects and the Board ac-
knowledged that supervisors, not petitioners, charge
military and annual leave. Even after an employee
makes a request for military or annual leave, the supervi-
sor must authorize and take additional, necessary steps to
charge military or annual leave. Oral Arg. 28:31-29:05,
Sept. 9, 2011. Thus, a petitioner may not be in the best
place to know of the procedures adopted and followed by
his employer. Therefore, on the facts of this case, this
court cannot say that it was erroneous for the Board to
find that Mr. Duncan’s testimony was not based on his

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DUNCAN v. AIR FORCE 9
independent recollection and was not supported otherwise
by evidence in the record. Given these findings, the Board
did not err in denying Mr. Duncan relief. Accordingly,
this court affirms.
In affirming the Board, this court does not create a
blanket rule; rather, this court holds that determinations
regarding the sufficiency of the evidence must be deter-
mined by the Board on a case-by-case basis. This Court
would not foreclose, for example, the Board from admit-
ting and relying upon a petitioner’s testimony in appro-
priate circumstances.
In sum, this court recognizes the Board’s responsibil-
ity and expertise in adjudicating each case on its merits.
For instance, in deciding what evidence to consider, the
Board did not reach or rely on the Air Force’s challenges
to the Administrative Judge’s credibility determinations.
Therefore, that aspect of this case was not before this
court on appeal. The Board states:
The agency raises several claims on review, in-
cluding but not limited to, challenges to the ad-
ministrative judge’s credibility findings and
weighing of the evidence … However, in light of
our findings concerning the insufficiency of the
appellant’s evidence, we need not address these
claims.
Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 277 n.2
(2010)). The statutory standards of review give the Board
broad leeway to determine the proper adjudicatory meth-
ods for these cases, and this case presents no reversible
error.
IV.
Mr. Duncan spends the majority of his brief arguing
that the Board erred in granting the Air Force’s petition

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DUNCAN v. AIR FORCE 10
for review under 5 C.F.R. § 1201.115(d) (“Contents of
petition for review”). The court rejects this argument
because the Board can consider an initial decision at any
time under 5 C.F.R. § 1201.118 (“Board reopening of case
and reconsideration of initial decision”), which provides:
The Board may reopen an appeal and reconsider a
decision of a judge on its own motion at any time,
regardless of any other provisions of this part.
See also Connolly v. Dep’t of Justice, 766 F.2d 507, 511
(Fed. Cir. 1985) (discussing the prior regulation at
§ 1201.117).
For the reasons stated above, this court affirms.
AFFIRMED.
COSTS
No costs.

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