Timothy J. Tierney v. Department of Justice

United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY J. TIERNEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
______________________
2011-3159
______________________
Petition for review of the Merit Systems Protection
Board in No. DA3443060659-I-2.
______________________
Decided: June 20, 2013
______________________
D AVID A. F ALLON, Tully Rinckey P.L.L.C, of Albany,
New York, argued for petitioner. On the brief was
S TEVEN L. HERRICK, of Washington, DC.
MICHAEL P. G OODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. With him on the brief were S TUART F. D ELERY,
Acting Assistant Attorney General, J EANNE E. D AVIDSON,
Director, and BRIAN M. SIMKIN, Assistant Director.
______________________

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TIERNEY v. JUSTICE 2
Before M OORE, BRYSON, and O’MALLEY , Circuit Judges.
Opinion for the court filed by Circuit Judge MOORE.
Dissenting opinion filed by Circuit Judge B RYSON.
MOORE, Circuit Judge.
Timothy J. Tierney appeals from the final decision by
the Merit Systems Protection Board (Board) denying his
request for corrective action with respect to days for
which Mr. Tierney alleged that he was improperly
charged annual leave or leave without pay while perform-
ing reserve military duties. Because the Board’s decision
is not supported by substantial evidence, we reverse and
remand.
BACKGROUND
Under 5 U.S.C. § 6323(a)(1), federal employees who
are members of the National Guard are entitled to take
up to fifteen days of annual military leave “without loss in
pay, time, or performance or efficiency rating.” Until
§ 6323 was amended in 2000, the Office of Personnel
Management (OPM) interpreted this section as providing
fifteen calendar days of leave each year, rather than
fifteen workdays. Butterbaugh v. Dep’t of Justice, 336
F.3d 1332, 1333–34 (Fed. Cir. 2003). As a result, federal
employees who attended reserve training on days when
they were not required to work would nonetheless be
charged military leave. In Butterbaugh, we held that
even before 2000, federal agencies were not entitled to
charge employees military leave on non-workdays (e.g.,
weekends). Id. at 1343.
Between 1974 and 2001, Mr. Tierney worked at the
Drug Enforcement Agency (the Agency). During this
time, he was also a member of the U.S. Air National
Guard Reserve. Mr. Tierney filed a Butterbaugh claim
with the Board, arguing that the Agency charged him
military leave for performance of his military reserve duty
on forty-four non-workdays, in violation of the Uniformed

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TIERNEY v. JUSTICE 3
Services Employment and Reemployment Rights Act of
1994 (USERRA). According to Mr. Tierney, this policy
caused him to exhaust his allotted military leave and
thereafter required him to take annual leave or leave
without pay to perform his military duty.
In an Initial Decision, an Administrative Judge (AJ)
held that Mr. Tierney was improperly charged military
leave on seventeen of the forty-four disputed non-
workdays and, as a result, was forced to take annual
leave or leave without pay on those dates. The AJ relied
in part on Mr. Tierney’s testimony that he knew he was
charged military leave on the dates in question because,
at the time, it was the Agency’s policy to charge military
leave for non-workdays falling within a period in which an
employee performed reserve duty (so-called “intervening
non-workdays”). The AJ noted the fact that Mr. Tierney
was a supervisor and thus signed off on leave requests for
which military leave was charged for intervening non-
workdays. The AJ expressly found credible Mr. Tierney’s
testimony that he exhausted his military leave nearly
every year. The AJ also found credible Mr. Tierney’s
testimony that he usually took annual leave to perform
any remaining reserve duties and recalled taking leave
without pay one or two times. Despite the fact that Mr.
Tierney did not have any independent recollection regard-
ing the specific dates in question, the AJ found Mr. Tier-
ney’s testimony to be credible based on the direct manner
in which he testified and his certainty that he was
charged military leave on intervening non-workdays.
The AJ also relied on testimony by Michelle Richards,
an employee at the law firm representing Mr. Tierney.
Ms. Richards testified that she approved the Military
Leave Summary introduced as evidence in the case. The
Summary reflects periods of active military duty, dates of
improperly charged leave, and dates on which annual
leave or another form of leave was used for military duty
as a result of having been improperly charged military

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TIERNEY v. JUSTICE 4
leave. The AJ noted that Ms. Richards did not base her
testimony on any “time and attendance” records or “civil-
ian earnings statements,” but rather “assumed” that the
Agency followed OPM’s policy requiring that military
leave be charged on non-workdays. Tierney v. Dep’t of
Justice, No. DA-3443-06-0659-I-2 (Nov. 18, 2010) (Initial
Decision).
In response, Ruth Johnston, an Agency representa-
tive, testified regarding Mr. Tierney’s civilian pay records.
She stated that she determined the pay periods into
which the disputed dates fell and compared those dates
with Mr. Tierney’s pay records to determine when he was
charged military leave, annual leave, or leave without
pay. Ms. Johnston found that Mr. Tierney was not
charged annual leave or leave without pay on sixteen of
the forty-four disputed dates.
The AJ accepted Ms. Johnston’s testimony and agreed
that Mr. Tierney should not be compensated for those
sixteen days. The AJ found, however, that the pay rec-
ords showed that Mr. Tierney was forced to take annual
leave on seventeen of the remaining claimed days. The
AJ concluded that Mr. Tierney was entitled to have the
Agency correct his time and attendance records to reflect
a proper accounting of his military leave. The AJ thus
ordered the Agency to compensate Mr. Tierney for the
seventeen days on which he was forced to take annual
leave in lieu of military leave.
The full Board reversed the AJ’s Initial Decision. The
Board found that the Military Leave Summary and Mr.
Tierney’s testimony were based solely on his military
records and on the speculation that the Agency improper-
ly charged military leave on intervening non-workdays.
The Board also noted that Mr. Tierney admitted that he
had no independent recollection of the dates at issue. The
Board explained that Mr. Tierney’s civilian pay records
showed only that he was charged annual leave during

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TIERNEY v. JUSTICE 5
certain pay periods, and thus were insufficient to prove
that the Agency charged him military leave on non-
workdays or that the annual leave was used on days that
he performed reserve duties. The Board also relied on
Ms. Johnston’s testimony that the pay records show that
Mr. Tierney did not use annual leave instead of military
leave on sixteen of the days at issue. Mr. Tierney appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must set aside any findings or conclusions of the
Board that we determine to be “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c).
“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.” Duncan v. Dep’t of the Air Force, 674 F.3d
1359, 1363 (Fed. Cir. 2012). The petitioner bears the
burden of proof by a preponderance of evidence. Id.
Mr. Tierney argues that he introduced preponderant
evidence to support his claim. He relies in part on his
civilian pay records, which show that he was paid for
annual leave during certain pay periods in which he
claimed he was forced to use annual leave to perform his
reserve duty. Mr. Tierney seems to concede that the
records show he was not charged annual leave on some of
the dates he contested, but argues that the same records
corroborate his claim that he was forced to use annual
leave to perform his reserve duty on the other dates at
issue. Mr. Tierney also points to his own testimony before
the AJ that the Agency’s policy was to charge employees
military leave on non-workdays. He argues that, as a

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TIERNEY v. JUSTICE 6
supervisor at the Agency, he was responsible for charging
military leave and thus was familiar with the Agency’s
policy at the time.
The government counters that Mr. Tierney failed to
prove that the Agency charged him military leave on non-
workdays. According to the government, Mr. Tierney’s
civilian pay records show what he was paid, but not
whether he was charged military leave on non-workdays
because civilian pay records do not show which day in the
two-week pay period Mr. Tierney was charged leave. The
government argues that Mr. Tierney only alleged that he
was incorrectly charged military leave for one non-
workday that did not fall on a weekend, and points out
that the Agency showed Mr. Tierney was charged holiday
leave rather than military leave for that day. The gov-
ernment also argues that Mr. Tierney’s civilian pay
records do not support his claim, but rather show that it
was based on incorrect assumptions. Specifically, the
government argues that Mr. Tierney’s civilian pay records
show that he was not charged leave for sixteen of the days
for which he claimed he was forced to use annual leave
and that the records are otherwise at best inconclusive.
The government contends that this evidence shows that
Mr. Tierney was mistaken in his assumption that the
Agency always followed a policy of charging military leave
for intervening non-workdays.
The government argues that Mr. Tierney’s status as a
supervisor does not change the outcome. According to the
government, had Mr. Tierney been correct in his testimo-
ny about the Agency’s policy for charging leave, the Agen-
cy would not have been able to disprove his assertions
regarding sixteen of the days at issue.
The government contends that Mr. Tierney’s case is
nearly identical to Duncan, a recent case in which we
affirmed a Board decision rejecting a petitioner’s Butter-
baugh claim. The government’s arguments, however,

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TIERNEY v. JUSTICE 7
ignore critical differences between Mr. Tierney’s case and
the facts of Duncan. In Duncan, we concluded that the
Board did not err because the only pieces of probative
evidence were the petitioner’s reserve service records and
his own recollection of being charged annual leave to
perform his reserve duties on the dates in question. 674
F.3d at 1361–62. We noted that the petitioner failed to
introduce contemporaneous documents such as pay rec-
ords, or the testimony of a supervisor concerning the
agency’s policy regarding charging leave. Id. at 1364. We
explained that, because the petitioner was not a supervi-
sor, he may not have been “in the best place to know of
the procedures adopted and followed by his employer.” Id.
The Board’s decision in the present appeal pre-dates
our Duncan opinion, and the Board thus lacked the guid-
ance we provided in that case. The Board performed
virtually no analysis of the elements required to prove a
Butterbaugh claim and did not address the evidence we
highlighted as important in Duncan. In a one-and-a-half
page opinion, the Board overturned the AJ’s decision
based entirely on the conclusion that Mr. Tierney’s civil-
ian pay records were insufficient to prove his claim. The
Board’s opinion did not discuss the state of the factual
record, including key credibility determinations by the
AJ.
As an initial matter, the Board did not acknowledge
that OPM had a stated policy of charging military leave
for intervening non-workdays. Butterbaugh, 336 F.3d at
1333. As the dissent in Butterbaugh describes in detail,
the government has consistently interpreted the military
leave statute in this way as far back as 1917. Id. at 1344–
51 (Bryson, J., dissenting).
And unlike Duncan, here Mr. Tierney testified that he
was a supervisor who followed that policy and charged
leave for non-workdays. Mr. Tierney specifically recalled
signing off on other employees’ leave requests in which

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TIERNEY v. JUSTICE 8
military leave was charged for intervening non-workdays.
Unlike the petitioner in Duncan, Mr. Tierney thus was “in
the best place to know of the procedures adopted and
followed by his employer.” 674 F.3d at 1364.
The Board also failed to articulate any basis for over-
turning the AJ’s express credibility determinations. The
AJ found that Mr. Tierney “gave credible testimony that,
during the time in question, he was charged military
leave for intervening non-workdays and that this caused
him to prematurely exhaust his military leave and be
forced to use annual leave and leave without pay to
perform military obligations.” Initial Decision at 6. The
AJ also relied on Mr. Tierney’s testimony that he ex-
hausted his military leave almost every year and remem-
bered taking annual leave and leave without pay to fulfill
any remaining reserve duties. The AJ explained that Mr.
Tierney was credible because he “testified in a direct
manner and was sure that he was charged military leave
on intervening non-workdays.” Id. The Board is general-
ly free to substitute its judgment for that of the AJ, but it
is not “free to overturn an administrative judge’s demean-
or based credibility findings merely because it disagrees
with those findings.” Leatherbury v. Dep’t of Army, 524
F.3d 1293, 1304 (Fed. Cir. 2008).
In addition, in this case Mr. Tierney introduced his ci-
vilian pay records. Again in Duncan, we noted that
civilian pay records were exactly the sort of evidence
necessary to substantiate a Butterbaugh claim. 674 F.3d
at 1362–63. Mr. Tierney’s records do not identify precise-
ly the dates on which he was charged annual leave or
leave without pay. They do show, however, that for
seventeen of the days on which Mr. Tierney claims he
used annual leave to perform reserve duties, he was
charged annual leave during the corresponding pay
period.

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TIERNEY v. JUSTICE 9
The government makes much of the fact that it was
able to establish through Mr. Tierney’s civilian pay rec-
ords that, for sixteen of the disputed days, Mr. Tierney
was not charged any annual leave during the relevant pay
period. Although the government is correct that this
evidence shows that the Agency did not always follow its
leave policy correctly, it does not establish that the Agen-
cy never did.
The government concedes that Mr. Tierney was a su-
pervisor who testified as to his knowledge that the Agency
followed OPM’s policy of charging military leave on inter-
vening non-workdays. The AJ expressly credited Mr.
Tierney’s testimony that he remembered being charged
military leave on non-workdays and using annual leave or
leave without pay to perform reserve duties after exhaust-
ing his military leave. Mr. Tierney also introduced civil-
ian pay records that show that for seventeen of the
claimed days, he was in fact charged annual leave during
the relevant pay period. This evidence is sufficient. The
Board lacked substantial evidence to reach a contrary
conclusion.
CONCLUSION
We have considered the government’s arguments on
appeal and find them to be without merit. Because the
Board arbitrarily overruled the AJ’s credibility determi-
nations and ignored several pieces of relevant evidence
that support Mr. Tierney’s claim, we reverse its decision
denying Mr. Tierney’s request for corrective action. We
remand for the Agency to correct Mr. Tierney’s time and
attendance records and to compensate him for the seven-
teen days for which the AJ found that Mr. Tierney was
forced to take annual leave or leave without pay to fulfill
his reserve duties.
REVERSED AND REMANDED

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United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY J. TIERNEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
______________________
2011-3159
______________________
BRYSON, Circuit Judge, dissenting.
This case turns on the burden of proof. Mr. Tierney
bore the burden of proving that his agency charged him
with military leave on certain non-working days. See
Duncan v. Dep’t of the Air Force, 674 F.3d 1359, 1363
(Fed. Cir. 2012).
In an effort to satisfy that burden, Mr. Tierney intro-
duced evidence that during the period at issue the gov-
ernment had a policy of charging military leave not only
for the workdays during which employees were perform-
ing military service, but also for intervening non-
workdays falling within those periods of military service.
He testified that as a supervisor he was aware that it was
the policy of his agency to charge military leave for such
intervening non-workdays.
On the assumption that his agency was charging mili-
tary leave for non-workdays falling within a period of
military leave, Mr. Tierney identified 43 intervening non-

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TIERNEY v. JUSTICE 2
workdays during the 18 years in dispute (42 weekend
days and one holiday) for which he claims the agency’s
policy would have required it to charge him with military
leave. He then identified 41 days between 1980 and 1997
in which he performed military service after his military
leave would have been exhausted if the agency had
charged the 43 intervening non-workdays against his
allotted military leave. Based on his assumption that his
military leave was improperly used for non-working days,
he argued that he must have been charged annual leave
or leave without pay for the 41 days on which he per-
formed military service but was not credited with military
leave, and that he should be compensated for them.
It is now clear that there was a flaw in Mr. Tierney’s
theory. Personnel records introduced by the government
showed that 16 of the days for which Mr. Tierney claimed
he was forced to use annual leave or leave without pay fell
within pay periods in which Mr. Tierney was not charged
any annual leave or leave without pay. That evidence
conclusively rebutted his case with respect to those par-
ticular days. More importantly, it showed that the under-
lying theory of Mr. Tierney’s case—that the agency
consistently charged employees with military leave for
intervening non-workdays—was wrong.
Notwithstanding the effect of the government’s evi-
dence in undercutting Mr. Tierney’s theory of the case,
the administrative judge granted relief to Mr. Tierney for
17 days in which the personnel records left open the
possibility that he may have been improperly charged
military leave for intervening non-workdays earlier in the
same year. Those 17 days fell into pay periods during
which Mr. Tierney was charged annual leave, although
the records did not identify the particular days during the
pay period for which the annual leave was charged, nor
did they reflect whether he might have elected to use
annual leave in place of military leave on particular
occasions. Thus, while the records for those 17 days did

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TIERNEY v. JUSTICE 3
not prove that Mr. Tierney was not charged annual leave
for days on which he was performing military service and
would have wanted to use military leave rather than
annual leave, they also did not prove the contrary. The
fact that on 17 occasions in an 18-year period Mr. Tierney
was charged with some annual leave during a pay period
in which he was performing some military service does
not prove that he was charged annual leave for the days
on which he was performing military service and that he
was forbidden from using military leave in those instanc-
es. There are at least two other, plausible explanations:
He may have taken some annual leave on those occasions
in conjunction with his authorized military leave, or he
may have chosen to use annual leave rather than military
leave for particular days that he was on active duty.1
The administrative judge recognized that the military
and personnel records did not prove that Mr. Tierney had
been forced to use annual leave even for those 17 days.
Nonetheless, the administrative judge found Mr. Tier-
ney’s testimony regarding the agency’s policy of charging
military leave for intervening non-workdays to be credi-
ble, and on that basis ruled in Mr. Tierney’s favor with
respect to the 17 days.
The full Board reversed the administrative judge’s de-
cision based on two observations, neither of which is
1 Military leave can be carried over from one fiscal
year to the next up to a maximum of 15 days of carryover
leave. 5 U.S.C. § 6323(a). While annual leave can also be
carried over up to a certain limit, id. § 6304(a), it can be to
the benefit of an employee with a large balance of annual
leave to use annual leave rather than military leave for a
period of military service in order to avoid losing the
annual leave, see 5 C.F.R. § 353.208, and to carry over the
corresponding days of military leave to the next fiscal
year.

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TIERNEY v. JUSTICE 4
contested here. First, the Board pointed out that the
military and civilian records in the case were “insufficient
to demonstrate that the agency improperly charged him
military leave on non-workdays or that, as a result, he
was forced to use annual leave to cover his absence for
military service.” Second, as to the appellant’s contention
that the agency consistently followed the policy of charg-
ing military leave for intervening days, the Board recog-
nized that the government’s evidence disproving Mr.
Tierney’s claims as to 16 of the days in dispute “casts
doubt on several of the presumptions underlying the
information presented by [Mr. Tierney].”
The majority rests its decision largely on the adminis-
trative judge’s finding that Mr. Tierney was a credible
witness when he testified that “he was sure that he was
charged military leave on intervening non-workdays.”
The problem is that Mr. Tierney’s testimony about the
agency’s consistent practice was proved to be wrong. The
records disproved his claim of improper charging of mili-
tary leave with respect to 16 of the days for which he
sought relief, and as to the 17 days as to which he was
granted relief, the best that can be said is that the records
did not conclusively prove him wrong.
While it is true that the Board should not disregard a
credibility finding made by an administrative judge
without explanation, there was such an explanation in
this case: The records showed that Mr. Tierney’s testimo-
ny regarding the agency’s consistent practice of charging
military leave for intervening non-workdays was not true.
The majority recognizes this problem with the evidence; it
acknowledges that the government is correct that the
evidence showed that the agency did not always follow its
policy regarding military leave, but it adds that the
government’s evidence does not prove that the agency
never followed that policy.

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TIERNEY v. JUSTICE 5
If the burden of proof in this case were on the gov-
ernment, that observation might have some force. But it
is not. The burden of showing entitlement to compensa-
tion for wrongfully charged leave falls on the employee.
And in light of the holes in the evidence and the effect of
the personnel records in undermining Mr. Tierney’s
theory of the case, it was reasonable for the Board to
conclude that he had not satisfied his burden of proof.
It is important to underscore our role as a reviewing
court in a case such as this one. The Board decided that
Mr. Tierney did not satisfy his burden of proof. The
question before us is not whether, upon an independent
examination of the record, we would decide that question
as the Board did. Instead, our task is to decide whether it
was unreasonable for the Board to reach that conclusion,
i.e., whether substantial evidence supports the Board’s
determination that Mr. Tierney did not sustain his bur-
den of proof. See Haebe v. Dep’t of Justice, 288 F.3d 1288,
1305 (Fed. Cir. 2002); Frampton v. Dep’t of the Interior,
880 F.2d 1314, 1317 (Fed. Cir. 1989); see also Eli Lilly &
Co. v. Aradigm Corp., 376 F.3d 1352, 1363 (Fed. Cir.
2004) (“What is or is not substantial may only be deter-
mined with respect to the burden of proof that the litigant
bore in the trial court.”).
As the Supreme Court has explained, substantial evi-
dence “must be enough to justify, if the trial were to a
jury, a refusal to direct a verdict.” NLRB v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
What that means is that in order to rule for Mr. Tierney,
we must conclude that the evidence in his favor is so
strong that if this were a jury trial we would be required
to overturn a jury verdict finding that he had not met his
burden of proof. See Allentown Mack Sales & Serv., Inc.
v. NLRB, 522 U.S. 359, 366-67 (1998); INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). I cannot agree that,
on the evidence in this record, we would overturn a jury
verdict against Mr. Tierney.

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TIERNEY v. JUSTICE 6
The issue in this case is not one of first impression. In
a closely similar case, Duncan v. Department of the Air
Force, 674 F.3d 1359 (Fed. Cir. 2012), this court upheld
the decision of the Board that an employee had not satis-
fied his burden of proof of showing that his agency had
improperly charged military leave for intervening non-
workdays. We upheld the Board in Duncan even though,
as in this case, the administrative judge credited the
petitioner’s testimony regarding his leave. Id. at 1362.
There are only two distinctions between this case and
Duncan. The first one cuts in Mr. Tierney’s favor: Unlike
Mr. Duncan, Mr. Tierney was a supervisor and therefore
could be assumed to have greater familiarity with the
agency’s leave policies and practices. The second distinc-
tion, however, cuts against Mr. Tierney: In Mr. Tierney’s
case, unlike in Mr. Duncan’s case, there was documentary
evidence that specifically rebutted the employee’s argu-
ment that the agency applied a consistent policy of charg-
ing military leave for intervening non-workdays. Thus,
while Mr. Tierney’s status as a supervisor might have
justified an inference that he was aware of the agency’s
policies and practices with respect to charging military
leave, the fact that the documentary evidence showed that
his testimony regarding the agency’s practice was incor-
rect with respect to a number of the days for which he
sought compensation substantially undermines the proba-
tive force of that inference.2 This case is thus not mean-
2 As noted above, while the documentary evidence
showed that Mr. Tierney took some days of annual leave
during some of the pay periods in which he also served
some days on active duty, that evidence did not establish
that the days of annual leave were the days on which he
was on active duty and that he had already exhausted his
military leave on each of those occasions. On balance,
then, the documentary evidence is more helpful to the
government than to Mr. Tierney.

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TIERNEY v. JUSTICE 7
ingfully distinguishable from the court’s precedent in
Duncan. In the absence of a persuasive ground for distin-
guishing that precedent, we are obliged to follow it.
I respectfully dissent.

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