## United States Court of Appeals for the Federal Circuit

2007-3004

MATHEW B. TULLY, Petitioner,

v.

DEPARTMENT OF JUSTICE, Respondent.

Mathew B. Tully , of Niskayuna, New York, pro se. Tara K. Hogan , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Kathryn A. Bleecker , Assistant Director. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2007-3004 MATHEW B. TULLY, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

___________________________ DECIDED: March 21, 2007

___________________________ Before BRYSON and LINN, Circuit Judges , and ROBINSON, District Judge

. * PER CURIAM. Petitioner Mathew B. Tully petitions for review of a decision of the Merit Systems Protection Board, which held that his em ployer does not owe him payment for 27 holidays which occurred while he was on leave without pay to serve on active duty in the U.S. Army. We affirm the decision of the Board.
I Mr. Tully served on active dut y in the U.S. Army from Oc tober 9, 1995, to April 9, 1998. While serving, Mr. Tully was absent from his position with his employer, the

* Honorable Sue L. Robinson, Chief J udge, United States District Court for the District of Delaware, sitting by designation.Federal Bureau of Prisons (“BOP”), an agency wit hin the U.S. Departm ent of Justice. The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) provides that when an employee is absent for military service, the employee is (A) deemed to be on furlough or l eave of absence while performing such service; and (B) entitled to such other right s and benefits . . . as are generally provided by the employer of the person to employees . . . who are on furlough or leave of absence . . . . 38 U.S.C. § 4316(b)(1). Pursuant to gover nment policy, the BOP placed Mr. Tully on leave without pay for the durati on of his active service and did not pay him. After completing his term of active service, Mr. Tully appealed to the Merit Systems Protection Board from the BOP’s failure to pay him for holidays during his leave of absence. His primary argument was that the BOP’s failure to pay him for holidays violated his rights under section 4316(b)(1)(B ) because the agency provided holiday pay to employees who took paid l eaves of absence to attend judicial proceedings as jurors or witnesses and therefore was obligated to provide holiday pay for him while he was on leave for military service. The administrative judge who was assigned to Mr. Tully’s case denied relief. Mr. Tully argued that his case was analogous to Waltermyer v. Aluminum Co. of America , 804 F.2d 821 (3d Cir. 1986), and that under that case he was entitled to holiday pay. The administrative judge disagreed, however. The administrative judge noted that the court in Waltermyer compared the nature of the plaint iff’s absence for military purposes, which did not qualify the plaintiff for holi day pay under company policy, with the nature of other types of absences for which company policy provided holiday pay. Id. at 825.

2007-3004 2Because the Waltermyer court found that a short abs ence for military training was functionally similar to short absences fo r nonmilitary purposes, for which employees received holiday pay, it concl uded that the plaintiff National Guardsman had a right to holiday pay while he was away for two-week periods of training. Id. In the present case, the administrative judge f ound that Mr. Tully’s leave of absence for active service in the Army was significantly longer than the typical period of court leave for service as a juror or witness. As a consequence, the adm inistrative judge held that the fact that the BOP provided holiday pay to employees during court leave did not establish that Mr. Tully was denied a benefit generally availabl e to employees on extended leaves of absence, in violation of section 4316(b)(1)(B). For that reason, the administrative judge rejected Mr. Tully’s analogy to the facts of Waltermyer . The initial decision became the final decision of the Board when the full B oard denied Mr. Tully’s petition for review. II In his petition for review by this cour t, Mr. Tully argues that the administrative judge misinterpreted section 4316(b)(1)(B). He argues t hat the statute entitles uniformed service members to the best benefits available to any employee for any leave of absence, and that it is therefore impermissible for employees on court leave to receive better benefits than employees on a leave of absence for military purposes. We disagree with Mr. Tully’s analysis of the statute. We hold that the “leave of absence” to which section 4316(b)(1)(B) refers is not any leave of absence, but rather one comparable to the leave provided to t he service member for military service. Although section 4316(b)(1)(B) does not def ine the type of “leave of absence” that triggers a right to equiva lent treatment for employees on leave for military service,

2007-3004 3the statute’s legislative histor y makes clear that it is lim ited to a furlough or leave of absence comparable to the service member’s . Both the Senate and House reports state that section 4316(b)(1) was m eant to codify the decision in Waltermyer , which entitles service members to treatment equiva lent to the most favorable treatment accorded to other employees for “any particula r leave.” H. Rep. No. 103-65(I), at 33–34 (1993), available at 1994 U.S.C.C.A. N. 2449, 2466–67; see also S. Rep. No. 103-158, at 58 (1993). Waltermyer identified the particular leav e of absence whose benefits must be afforded a service member as leave on acc ount of an absence similar to that of the service member. 804 F.2d at 822, 825. That standard reflects the purpose of Waltermyer —to require that service member em ployees receive benefits equal to, but not more favorable than, those generally ava ilable to all employees of the employer. Id. at 823–24. Any fair compar ison of the benefits available to different groups of employees must not disregard the circumstances in which the benefits are provided; one such circumstance is the expect ed length of the employee’s absence. The Senate report reflects the congressi onal concern that a service member employee not “receive greater benefits . . . by virtue of performing service in the uniformed services than would have been a ccorded if the person had not left that employment for uniformed service.” S. Rep. No. 103-158, at 59. Mr. Tully’s interpretation of section 4316(b)(1)(B) would have just such an effect. Accepting his position would mean that t he benefits provided in connection with any absence from work, no matter how different in character from the service member’s absence, must be provided for all absences attributable to uniformed service. Presumably, that interpretation would mean, for example, t hat because the agency pays the salaries of

2007-3004 4employees who are absent to serve as jurors , it would be required to pay Mr. Tully his full salary for the entire term of his active service in the Army. But Mr. Tully has not shown that if he had taken a leave of abs ence from the agency fo r two and a half years for reasons other than m ilitary service the BOP would have paid his salary for that entire period. Cf. Monroe v. Standard Oil Co. , 452 U.S. 547, 563-64 (1981) (under a predecessor statute to USERRA, rejecti ng the notion that C ongress intended that employee-reservists “earn the same amount of pay that they w ould have earned without absences attributable to militar y reserve duties”). To assu re equal but not preferential treatment, the benefits sought by a service member must be com pared with the benefits associated with absences similar to the service member’s. The administrative judge found Mr. Tully’s absence to be substantially different from an absence for court duty because of t he different lengths of the periods of absence and thus declined to require that Mr. Tully be accorded the same benefits as those enjoyed by employees on court leave. The Waltermyer court recognized that factors such as the duration or voluntar iness of an absence ar e proper grounds for assessing similarity, and it was therefore appropr iate for the administrative judge to rely on the difference in the expected duration of the two forms of leave in determining whether they were comparable. See 20 C.F.R. § 1002.150 (2005) (stating, in interpreting section 4316(b)(1)(B) of USERRA for employers other than the federal government, that “[i]n order to determine whether any two types of leave are comparable, the duration of t he leave may be the most signifi cant factor to compare. For instance, a two-day funer al leave will not be ‘comparable’ to an extended leave for service in the uniformed service.”); U.S. Dep’t of Labor Vet. Em ployment & Training

2007-3004 5Serv., A Non-Technical Resource Guide to t he Uniformed Services Employment and Reemployment Rights Act 9 (Mar. 2003) (“[Under sect ion 4316(b),] [i]f there is a variation among different types of nonmilitary leaves of absence, the service member is entitled to the most favorabl e treatment so long as the nonm ilitary leave is comparable. For example, a three-day bereavement leave is not comparable to a two-year period of active duty.”). We disagree with the adminis trative judge’s suggestion t hat Mr. Tully’s absence was also different from court leave because court leave is paid while Mr. Tully’s leave was not. Payment of an employee’s salary wh ile the employee is absent from work is a benefit provided during the absenc e, not a characteristic of the absence. To allow differences in the available benefits to negate relief under section 4316(b)(1)(B) would undermine the effect of the stat ute, which is designed to remedy differences in the benefits provided for military leave and leave for other purposes. Any error in the administrative judge’s reliance on the fact t hat court leave is paid was harmless, however, because the administr ative judge separately relied on the difference between the typically brief duration of an absence for court duty and Mr. Tully’s two and a half year absence for active service in the Army. That factor reflects a significant difference in the character of the two forms of leave, and the adminis trative judge’s reliance on that factor was appropriate. Accordingly, we uphol d the decision of the Board denying relief to Mr. Tully on his claim for holiday pay during the period of his active duty in the Army. AFFIRMED

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