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Federal Circuit Ruling Paves the Way for Additional Paid Military Leave Claims

A recent ruling paves the way for federal employees who served in the military after September 11, 2001 to receive additional paid military leave from their agencies. O’Farrell v. Department of Defense, decided in the United States Court of Appeals, Federal Circuit, creates a much broader interpretation of what qualifies as support for contingency operations.

The court ruled in February, 2018 that Michael O’Farrell, Jr. was entitled to 22 additional days of paid military leave from the Department of Defense for serving at the U.S. Navy’s Naval Surface War Center (NSWC) in 2013. O’Farrell had been working as a general attorney in the Office of Counsel for the aviation subordinate command of the Defense Logistics Agency.

O’Farrell used his 15 days of paid military leave, as well as most of his accrued annual leave and advance annual leave, during his 162-day assignment to the NSWC. He requested 22 additional days of paid military leave from the Department of Defense and stated it was because he was supporting the military’s operation in Afghanistan. The agency denied the request and asserted that his active duty was not in support of a contingency operation.

The Merit Systems Protection Board (MSPB) upheld the decision by the Department of Defense, but the Federal Circuit overturned it on the basis of the Board’s misinterpretation of Section 6323(b) of the U.S Code, which allows members of the Reserves and National Guard to receive paid time off from their federal agencies for military service.

The Federal Circuit’s ruling in O’Farrell now paves the way for thousands of other service members to receive additional paid time off from their federal agencies for serving on active duty post-9/11 – similar to the thousands of federal employees who received additional paid military leave following the Federal Circuit’s 2003 ruling in Butterbaugh v. Department of Justice.

In Butterbaugh, the Federal Circuit ruled that federal agencies improperly charged military leave prior to December 2000 because the agencies counted non-working, weekend days within the 15 days allotted to paid military time. As a result, agencies were required to compensate those employees who had to use personal annual leave to fulfill their military obligations.


How to file a claim:

Federal employees can file claims with the MSPB against their agencies to receive additional paid military leave for serving in support of military operations against terrorist groups around the world. If the claim is successful, employees will receive relief in one of two forms:

  1. Personnel still employed by the same federal agency will receive restored annual leave
  2. Retired or separated federal employees will receive a lump-sum payment for the lost leave, which will be paid at the rate they were earning at the time of retirement or separation

Federal employees seeking assistance with the claims process can fill out the necessary form from or e-mail us at Once the firm receives your information, an attorney or staff member will contact you to discuss the next steps in the process.

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