Case: 20-1649 Document: 40 Page: 1 Filed: 07/02/2021
United States Court of Appeals
for the Federal Circuit
______________________
BRYAN ADAMS,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2020-1649
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-19-0288-I-1.
______________________
Decided: July 2, 2021
______________________
BRIAN J. LAWLER, Pilot Law, P.C., San Diego, CA, for
petitioner.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by CLAUDIA
BURKE, JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR.
______________________
Case: 20-1649 Document: 40 Page: 2 Filed: 07/02/2021
2 ADAMS v. DHS
Before MOORE, Chief Judge *, REYNA and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Bryan Adams appeals a final decision of the Merit Sys-
tems Protection Board denying his request for differential
pay for three separate periods of military service during
which he performed duties in the Arizona Air National
Guard. Because none of Mr. Adams’s service meets the
statutory requirements for differential pay, we affirm.
I
Mr. Adams worked as a human resources specialist
with U.S. Customs and Border Patrol (the agency) and was
also a member of the Arizona Air National Guard. From
April to September 2018, Mr. Adams performed three peri-
ods of military service with the National Guard. Between
April 11 and July 13, Mr. Adams was activated under
10 U.S.C. § 12301(d) to support a military personnel appro-
priation (MPA) tour in support of Twelfth Air Force.
J.A. 199. Between July 18 and July 30, Mr. Adams was or-
dered to attend annual training under 32 U.S.C. § 502(a)
at Davis-Montham Air Force Base. J.A. 196. And between
July 28 and September 30, Mr. Adams was again activated
under § 12301(d) to support an MPA tour in support of le-
gal assistance. J.A. 203. Both of Mr. Adams’s § 12301(d) or-
ders state that they are “non-contingency” activation
orders. J.A. 199, 203.
Under 5 U.S.C. § 5538(a), federal employees who are
absent from civilian positions due to certain military re-
sponsibilities may qualify to receive the difference between
their military pay and what they would have been paid in
their civilian employment during the time of their absence.
* Chief Judge Kimberly A. Moore assumed the posi-
tion of Chief Judge on May 22, 2021.
Case: 20-1649 Document: 40 Page: 3 Filed: 07/02/2021
ADAMS v. DHS 3
This entitlement is referred to as “differential pay.” Here,
Mr. Adams requested differential pay from the agency for
each of his three periods of service. The agency denied his
request because it determined that Mr. Adams’s military
service did not qualify for differential pay under the stat-
ute.
Mr. Adams appealed to the Merit Systems Protection
Board (Board) alleging that the decision to deny differen-
tial pay violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) (codified as
amended at 38 U.S.C. §§ 4301–4335). An Administrative
Judge issued an initial decision that the agency did not vi-
olate USERRA because Mr. Adams provided no evidence
that his military service was a motivating factor in the de-
nial of differential pay. Adams v. Dep’t of Homeland Sec.,
No. DE-4324-19-0288-I-1, 2020 WL 698369 (M.S.P.B. Feb.
4, 2020). Because Mr. Adams did not file a petition for re-
view with the Board, this initial decision became final with-
out further review.
Mr. Adams now appeals.
II
We affirm a Board decision unless it was “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,
1311 (Fed. Cir. 2003). “We review the [Board]’s legal deter-
minations, including its interpretation of a statute, de
novo.” O’Farrell v. Dep’t of Def., 882 F.3d 1080, 1083
(Fed. Cir. 2018).
Generally, an employee making a USERRA claim un-
der 38 U.S.C. § 4311 must show that (1) they were denied
a benefit of employment, and (2) the employee’s military
service was “a substantial or motivating factor” in the
Case: 20-1649 Document: 40 Page: 4 Filed: 07/02/2021
4 ADAMS v. DHS
denial of such a benefit. Sheehan v. Dep’t of the Navy, 240
F.3d 1009, 1013 (Fed. Cir. 2001) (citation omitted). How-
ever, when the benefit in question is only available to mem-
bers of the military, claimants do not need to show that
their military service was a substantial or motivating fac-
tor. See Butterbaugh v. Dep’t of Just., 336 F.3d 1332, 1336
(Fed. Cir. 2003) (“[W]e agree with the Board that, in con-
trast to cases such as Sheehan . . . the question in this case
is not whether Petitioners’ military status was a substan-
tial or motivating factor in the agency’s action, for agencies
only grant military leave to employees who are also mili-
tary reservists.”); see also Maiers v. Dep’t of Health & Hum.
Servs., 524 F. App’x 618, 623 (Fed. Cir. 2013) (“In Butter-
baugh, we determined that claimants need not show that
their military service was a substantial motivating factor
when the benefits at issue were only available to those in
military service.”).
Because differential pay is only available to members
of the military, we agree with Mr. Adams that the Board
erred in its legal analysis by requiring that he show that
his military service was a motivating factor in the agency’s
decision to deny differential pay. In order to establish a
USERRA violation, Mr. Adams was only required to show
that he was denied a benefit of employment. We therefore
consider whether Mr. Adams was entitled to differential
pay as a benefit of employment under the statutory provi-
sions.
III
5 U.S.C. § 5538(a) states:
An employee who is absent from a position of em-
ployment with the Federal Government in order to
perform active duty in the uniformed services pur-
suant to a call or order to active duty under . . . a
provision of law referred to in section 101(a)(13)(B)
of title 10 shall be entitled [to differential pay].
Case: 20-1649 Document: 40 Page: 5 Filed: 07/02/2021
ADAMS v. DHS 5
The provisions of law listed in 10 U.S.C. § 101(a)(13)(B)
define what qualifies as a “contingency operation.” Thus,
for Mr. Adams to be entitled to differential pay, he must
have served pursuant to a call to active duty that meets the
statutory definition of contingency operation. We conclude
that none of Mr. Adams’s service qualifies as an active duty
contingency operation.
A
We first consider Mr. Adams’s title 32 orders to per-
form annual training and conclude that Mr. Adams is not
entitled to differential pay for this period of service because
training does not qualify as “active duty” as required by
5 U.S.C. § 5538(a). Active duty is defined as “full-time duty
in the active military service of the United States . . . [but]
[s]uch term does not include full-time National Guard
duty.” 10 U.S.C. § 101(d)(1). As relevant here, full-time Na-
tional Guard duty is defined as:
[T]raining or other duty, other than inactive duty,
performed by a member of the . . . Air National
Guard of the United States in the member’s status
as a member of the National Guard of a State or
territory . . . under section . . . 502 . . . of title 32 for
which the member is entitled to pay from the
United States or for which the member has waived
pay from the United States.
Id. § 101(d)(5).
Mr. Adams was ordered to annual training under
32 U.S.C. § 502(a). Since training under § 502 of title 32 is
explicitly included in the definition of full-time National
Guard duty, and since full-time National Guard duty is ex-
plicitly excluded from the definition of active duty, Mr. Ad-
ams was not called to active duty during the period of
service that he spent in training. Because only members of
the military who are called to active duty are entitled to
differential pay under 5 U.S.C. § 5538(a), Mr. Adams is not
Case: 20-1649 Document: 40 Page: 6 Filed: 07/02/2021
6 ADAMS v. DHS
entitled to differential pay for his time spent in annual
training.
B
We next consider Mr. Adams’s title 10 activation orders
to support MPA tours and conclude that Mr. Adams is not
entitled to differential pay for these periods of service be-
cause his service did not qualify as a “contingency opera-
tion” as required by 5 U.S.C. § 5538(a). As relevant to this
case, 10 U.S.C. § 101(a)(13)(B) defines the term “contin-
gency operation” as:
[A] military operation that . . . results in the call or
order to, or retention on, active duty of members of
the uniformed services under section 688, 12301(a),
12302, 12304, 12304a, 12305, or 12406 of this title,
chapter 13 of this title, section [3713] of title 14, or
any other provision of law during a war or during a
national emergency declared by the President or
Congress.
Mr. Adams was not called to duty under any enumer-
ated section in the definition of contingency operation, and
his orders expressly stated that they were “non-contin-
gency” activation orders. Nevertheless, Mr. Adams argues
that he was serving in a contingency operation because the
statutory definition includes members of the military
called to service under “any other provision of law” during
a declared national emergency. Mr. Adams argues that he
was called to duty under a provision of law, 10 U.S.C.
§ 12301(d), and that the United States has been in a con-
tinuous state of national emergency since September 11,
2001. See 84 Fed. Reg. 48,545 (declaration of the President
continuing the national emergency for the year 2019–
2020). Thus, Mr. Adams argues that every military reserv-
ist ordered to duty is performing a contingency operation
so long as the national emergency continues.
Case: 20-1649 Document: 40 Page: 7 Filed: 07/02/2021
ADAMS v. DHS 7
We have previously rejected such an expansive reading
of the definition of contingency operation. See O’Farrell,
882 F.3d at 1086 n.5 (explaining that not all reservists
called to active duty during a national emergency are act-
ing in support of a contingency operation). In O’Farrell, we
considered 5 U.S.C. § 6323(b), which entitled military re-
servists to military leave benefits if they were called to ac-
tive duty “in support of a contingency operation.” There, we
found that the Petitioner’s activation orders under
10 U.S.C. § 12301(d) qualified for benefits because the Pe-
titioner was called to active duty to replace a member of
the Navy who had been deployed to Afghanistan, and we
therefore reasoned that Petitioner was indirectly support-
ing the contingency operation in Afghanistan. Id. at 1087–
88. We find no inconsistency between O’Farrell and the
agency’s decision to deny differential pay to Mr. Adams.
The requirements to qualify for differential pay under
§ 5538(a) are stricter than those for entitlement to benefits
under § 6323(b), because § 5538(a) does not entitle a claim-
ant to benefits when they are activated “in support” of a
contingency operation, only when they are directly called
to serve in a contingency operation. 1 Moreover, unlike the
Petitioner in O’Farrell, Mr. Adams has not alleged any sim-
ilar connection between his service and the declared na-
tional emergency.
In determining the meaning of the statutory phrase
“any other provision of law,” we consider the context of the
enumerated provisions that qualify as a contingency oper-
ation under the statutory definition and find that all of the
identified statutes involve a connection to the declared na-
tional emergency. See 10 U.S.C. § 688(c) (authorizing the
1 Illustrative of the difference in the stringency of
the statutes, here the agency awarded emergency military
leave to Mr. Adams under § 6323(b)(2)(B), even while deny-
ing differential pay under § 5538(a). J.A. 342.
Case: 20-1649 Document: 40 Page: 8 Filed: 07/02/2021
8 ADAMS v. DHS
activation of retired military personnel to perform duties
that “the Secretary considers necessary in the interests of
national defense”); § 12301(a) (authorizing activation of re-
servists “[i]n time of war or of national emergency”);
§ 12302 (authorizing activation in the Ready Reserve “[i]n
time of national emergency”); § 12304 (authorizing activa-
tion of reservists “when the President determines that it is
necessary to augment the active forces”); § 12305 (author-
izing the suspension of laws relating to promotion, retire-
ment, or separation for a member of the military that “the
President determines is essential to the national security
of the United States”); § 12406 (authorizing activation of
service members when the United States “is invaded or is
in danger of invasion by a foreign nation”); Chapter 13 (cat-
egorizing provisions including authorization to call state
militia into federal service during time of insurrection “to
suppress the rebellion”); 14 U.S.C. § 3713 (authorizing ac-
tivation “to aid in prevention of imminent, serious natural
or manmade disaster, accident, catastrophe, act of terror-
ism, or transportation security incident”). By contrast,
§ 12301(d) authorizes the activation of reservists “at any
time . . . with the consent of that member.” Under the prin-
ciple of ejusdem generis, “[w]here general words follow spe-
cific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.”
Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001)
(alteration in original) (quoting 2A N. Singer, Sutherland
on Statutes and Statutory Construction § 47.17 (1991)). We
find it implausible that Congress intended for the phrase
“any other provision of law during a war or national emer-
gency,” to necessarily include § 12301(d) voluntary duty
that was unconnected to the emergency at hand.
Our reading of § 5538(a) is consistent with the policy
guidance from the Office of Personnel Management (OPM)
on the matter. OPM guidance instructs that “qualifying ac-
tive duty does not include voluntary active duty under
Case: 20-1649 Document: 40 Page: 9 Filed: 07/02/2021
ADAMS v. DHS 9
10 U.S.C. 12301(d).” See OPM Policy Guidance Regarding
Reservist Differential Under 5 U.S.C. § 5538 at 18 (availa-
ble at https://www.opm.gov/policy-data-oversight/pay-
leave/pay-administration/reservist-differential/policyguid-
ance.pdf). The guidance also explains that “[t]he term ‘con-
tingency operation’ means a military operation that is
designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become in-
volved in military actions, operations, or hostilities against
an enemy of the United States or against an opposing mil-
itary force.” Id. at 22. Mr. Adams does not allege that he
was ordered to perform such service.
We conclude that Mr. Adams’s service supporting MPA
tours under § 12301(d) was not a contingency operation.
Therefore, Mr. Adams is not entitled to differential pay for
these periods of service.
IV
Because none of Mr. Adams’s service qualifies as an ac-
tive duty contingency operation, as required by 5 U.S.C.
§ 5538(a), the agency properly denied differential pay. We
affirm the decision of the Board.
AFFIRMED
No costs.