Whether Reservists Must Exhaust Available Leave
Under 5 U.S.C. § 6323(b) Before Taking Leave
Under 5 U.S.C. § 6323(a)
A reservist who performs military service that qualifies for leave under 5 U.S.C.
§§ 6323(a) and 6323(b) may elect to take leave under section 6323(a) without first
using all of his or her available leave under section 6323(b).
April 3, 2012
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF VETERANS AFFAIRS
The Department of Veterans Affairs (“VA”) has asked whether a feder-
al employee who performs military service that qualifies for leave under
both 5 U.S.C. § 6323(a) (2006) and 5 U.S.C. § 6323(b) (2006 & Supp. IV
2010) must exhaust available leave under section 6323(b) before taking
leave under section 6323(a). Letter for Eric Holder, Attorney General,
from Will A. Gunn, General Counsel, VA at 6 (Apr. 1, 2011) (“Opinion
Request”). In our view, the statute does not impose such an exhaustion
requirement. An employee who otherwise qualifies for leave under both
section 6323(a) and section 6323(b) may elect to take leave under section
6323(a) even if the employee has unused leave under section 6323(b).
As we explain in detail below, the text of section 6323(a), which enti-
tles an employee to military leave under specified conditions, does not
require that an employee first exhaust available military leave under
section 6323(b). Nor does anything in the text of section 6323(b) suggest
that exhaustion of the leave it provides is a prerequisite to an employee’s
use of leave under section 6323(a). We do not find section 6323(a) and (b)
ambiguous with respect to exhaustion. Indeed, had we found any ambigui-
ty in these leave provisions, we would have construed them in favor of
those who perform military service. See Henderson ex rel. Henderson v.
Shinseki, 131 S. Ct. 1197, 1206 (2010).
The conclusion that exhaustion is not required is also supported by the
legislative and drafting history of section 6323(b), which demonstrates
that this provision was enacted to supplement the existing leave provided
by section 6323(a), not to displace or restrict it. Our reading of section
6323(a) and (b) is also consistent with the provisions of, and practice
under, other federal leave statutes: Some of these statutes use language
129
36 Op. O.L.C. 129 (2012)
similar to that in section 6323, yet they generally do not oblige an em-
ployee to use one type of leave before or instead of another when the
employee qualifies for multiple types of leave. Finally, reading an exhaus-
tion requirement into section 6323(b) would frustrate Congress’s purposes
in enacting the statute, which included expansion of existing military
leave and alleviation of the financial hardship of employees who perform
military service. If exhaustion were required, some employees who per-
form military service would be worse off than they were before the stat-
ute’s enactment.
Some agencies appear to have concluded that a 1996 amendment to the
statute, which clarified that employees may elect to use annual leave or
compensatory time instead of leave under section 6323(b), indicates that
section 6323(b) leave must be exhausted before military leave may be
taken under section 6323(a). That inference is unwarranted. The 1996
amendment does not address whether employees may use leave under
section 6323(a) before or instead of section 6323(b) leave, and the
amendment is consistent with the conclusion that they may.
For all of these reasons, we conclude that employees are not required to
exhaust military leave under section 6323(b) before using the military
leave conferred by section 6323(a).
I.
A federal employee (as defined by 5 U.S.C. § 2105 (2006)) who is a
member of the National Guard or another reserve component of the
armed forces (“reservist”) is entitled to two overlapping types of paid
leave from his or her civilian job for military service. The first and most
longstanding type of military leave is conferred by section 6323(a). That
provision states that a reservist is “entitled to leave without loss in pay,
time, or performance or efficiency rating for active duty, inactive-duty
training . . . , funeral honors duty . . . , or engaging in field or coast
defense training.” 5 U.S.C. § 6323(a). Thus, reservists may use section
6323(a) leave for both annual training exercises, see 10 U.S.C. § 10147
(2006); 32 U.S.C. § 502 (2006), and active duty, which generally in-
cludes all “full-time duty in the active military service of the United
States,” 10 U.S.C. § 101(d)(1) (2006), including service to assist in civil
law enforcement or to perform traditional military operations. See Opin-
ion Request at 3; Leave of Absence—Civilians on Military Duty—Excess
130
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
Leave, 47 Comp. Gen. 761, 762 (1986). Section 6323(a) leave accrues at
the rate of 15 days per fiscal year, and a reservist may carry forward up
to 15 days of accumulated leave into the next fiscal year. Id. A reservist
taking section 6323(a) leave receives his or her full civilian salary as well
as military pay.
Section 6323(a) leave is nearly a century old. It originated with Public
Law 65-11, 40 Stat. 40, 72 (1917), which provided
[t]hat all officers and employees of the United States or of the Dis-
trict of Columbia who shall be members of the Officers’ Reserve
Corps shall be entitled to leave of absence from their respective du-
ties, without loss of pay, time, or efficiency rating, on all days during
which they shall be ordered to duty with troops or at field exercises,
or for instruction, for periods not to exceed fifteen days in anyone
calendar year.
In its original form, as today, section 6323(a) provided leave for both
training (“field exercises” or “instruction”) and active duty (“duty with
troops”). Id. By the mid-1960s, section 6323(a) had evolved to closely
resemble its current version and provided that covered reservists were
“entitled to leave without loss of pay, time, or performance or efficiency
rating for each day, not in excess of 15 days in a calendar year,” devoted
to “active duty” or “field or coast defense training.” 5 U.S.C. § 6323(a)
(Supp. II 1966). 1
Beginning around the mid-1960s, the government increasingly began to
call upon reservists to perform active-duty military service, particularly in
aid of civil law enforcement, for significant periods of time. Due to those
additional demands, the 15 days of leave provided by section 6323(a)
1 Congress has made few substantive changes to section 6323(a) since that time. In
1970, Congress expanded section 6323(a) to cover all reservists, eliminating an exception
for certain postal field service employees. See Postal Reorganization Act, Pub. L. No. 91-
375, § 6(c)(18), 84 Stat. 719, 776. In 1980, the statute was revised to provide that leave
would accrue on a fiscal year basis and that employees could carry over up to 15 days of
accrued leave into the next fiscal year. See Pub. L. No. 96-431, § 1, 94 Stat. 1850, 1850
(1980). In 1999, Congress added inactive-duty training as a qualifying form of military
service, see National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-
65, § 1106(a), 113 Stat. 512, 777; and, in 2001, Congress added funeral honors duty, see
National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, div. A,
§ 563, 115 Stat. 1012, 1120.
131
36 Op. O.L.C. 129 (2012)
often proved insufficient to cover all of a reservist’s military service. See
H.R. Rep. No. 90-1560, at 3, 4–5 (1968); S. Rep. No. 90-1443, at 2
(1968). Reservists frequently would use up the leave provided by section
6323(a) while performing service in aid of law enforcement and therefore
would be forced to use annual leave, or to go on military furlough without
civilian pay, for their remaining military service, including their training.
See H.R. Rep. No. 90-1560, at 2–3; 114 Cong. Rec. 11,114 (1968) (state-
ment of Rep. Machen).
Members of Congress viewed the “personal inconvenience” and “finan-
cial hardship” caused by the inadequacy of section 6323(a) leave as an
“inequity” in need of correction. H.R. Rep. No. 90-1560, at 3–4; 114
Cong. Rec. at 11,114 (statement of Rep. Machen); 114 Cong. Rec. at
19,390 (same). Consequently, in 1968, Congress enacted a second type of
military leave, now codified in section 6323(b), to provide “additional”
leave that would supplement the 15 days of military leave already provid-
ed by section 6323(a). H.R. Rep. No. 90-1560, at 2, 6; S. Rep. No. 90-
1443, at 1. 2 That supplemental leave was, however, less expansive and
somewhat less advantageous to reservists than the basic leave provided
under section 6323(a). As originally enacted, section 6323(b) stated that a
covered reservist who performed either federal service “for the purpose of
providing military aid to enforce the law” or “full-time military service
for his State, the District of Columbia,” or a federal territory was, except
as provided in 5 U.S.C. § 5519, “entitled, during and because of such
service, to leave without loss of, or reduction in, pay, leave to which he
otherwise [was] entitled, credit for time or service, or performance or
efficiency rating.” Pub. L. No. 90-588, § 2(a), 82 Stat. 1151 (1968). 3
Section 6323(b) did not provide additional leave for all types of active
duty covered by section 6323(a) leave, but instead provided extra leave
for only the specific kind of military service—service in aid of civil law
2 As originally enacted, the new provision was denominated section 6323(c). Pub. L.
No. 90-588, § 2(a), 82 Stat. at 1151. It was re-designated as section 6323(b) in 1979. Pub.
L. No. 96-54, § 2(a)(40), 93 Stat. 381, 383 (1979). We refer to the provision as section
6323(b) throughout this opinion.
3 The reservists covered by section 6323(b) originally included all federal employees
under 5 U.S.C. § 2105 except certain employees of the postal field service. Congress
eliminated the exception for postal employees in 1970, at the same time that it eliminated
the parallel exception under section 6323(a). Postal Reorganization Act § 6(c)(18), 84
Stat. at 776; supra note 1.
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Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
enforcement—that had created problems with the adequacy of existing
leave. Congress also limited section 6323(b) leave to “22 workdays in a
calendar year” and did not permit reservists to carry over any unused
section 6323(b) leave to the following year. Id. In addition, in section
5519, Congress required that the military pay received by a reservist
while on leave under section 6323(b) be credited against his or her civil-
ian pay (so that a reservist taking leave under section 6323(b) would
receive the higher of his or her military or civilian pay, but not both). See
5 U.S.C. § 5519 (2006).
In 1969, the United States Civil Service Commission, the predecessor
agency to the Office of Personnel Management (“OPM”), requested the
Comptroller General’s views on several interpretative questions concern-
ing section 6323(b). In responding to that request, the Comptroller Gen-
eral opined that an employee who performs military duty qualifying for
leave under section 6323(b), and who has available leave under that
provision, (1) may not “involuntarily be charged annual leave or any other
type of leave” for the time spent performing military duty and (2) “may
not elect to use” annual or other available leave. To Chairman, United
States Civil Service Commission, 49 Comp. Gen. 233, 237 (1969) (“1969
CG Opinion”). The Comptroller General stated that this conclusion fol-
lowed from the language in section 6323(b) admonishing that an employ-
ee is entitled to leave “without loss of[,] or reduction in[,] . . . leave to
which he otherwise is entitled.” Id. at 236 (quoting section 6323(b)).
The 1969 CG Opinion provoked no immediate response from Congress.
Beginning with the appropriations act for the Department of Defense for
fiscal year 1991, however, Congress began including in the Defense
Department appropriations acts language making clear that reservists
could use annual leave instead of leave under section 6323(b) if they so
requested. See Pub. L. No. 101-511, § 8086, 104 Stat. 1856, 1895–96
(1990); Pub. L. No. 102-172, § 8068, 105 Stat. 1150, 1187 (1991); Pub. L.
No. 102-396, § 9064, 106 Stat. 1876, 1916–17 (1992); Pub. L. No. 103-
139, § 8047, 107 Stat. 1418, 1450–51 (1993); Pub. L. No. 103-335,
§ 8042, 108 Stat. 2599, 2627 (1994).
In 1996, Congress amended section 6323(b) to make that clarification
permanent. The 1996 amendment added the following language to the end
of the subsection:
133
36 Op. O.L.C. 129 (2012)
Upon the request of an employee, the period for which an employee
is absent to perform service [that qualifies for leave under this sub-
section] may be charged to the employee’s accrued annual leave or
to compensatory time available to the employee instead of being
charged as leave to which the employee is entitled under this subsec-
tion. The period of absence may not be charged to sick leave.
National Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
104-106, § 516(a), 110 Stat. 186, 309 (“NDAA for FY 1996”). The 1996
amendment thus only addressed the relationship between section 6323(b)
leave and annual leave, compensatory time, and sick leave, not the rela-
tionship between section 6323(b) leave and any other type of leave, in-
cluding leave under section 6323(a).
Apart from the 1996 amendment, the only other changes that Congress
has made to section 6323(b) have been expansions in the types of mili-
tary service that qualify for leave. In 1991, Congress added, as qualifying
service, military service “for the purpose of providing assistance to civil
authorities in the protection or saving of life or property or the prevention
of injury.” National Defense Authorization Act for Fiscal Years 1992 and
1993, Pub. L. No. 102-190, div. A, sec. 528, § 6323(b)(2), 105 Stat.
1290, 1364. And, in 2003, Congress added “full-time military service as
a result of a call or order to active duty in support of a contingency
operation.” National Defense Authorization Act for Fiscal Year 2004,
Pub. L. No. 108-136, div. A, sec. 1113(a), § 6323(b)(2)(B), 117 Stat.
1392, 1635. 4 Those expansions in the types of active duty that qualify for
leave under section 6323(b) have increased the overlap between section
6323(b) leave and section 6323(a) leave. At the same time, Congress has
retained the provisions that make section 6323(b) leave less advanta-
4 A “contingency operation” is
a military operation that—
(A) is designated by the Secretary of Defense as an operation in which mem-
bers of the armed forces are or may become involved in military actions, opera-
tions, or hostilities against an enemy of the United States or against an opposing
military force; or
(B) results in the call or order to, or retention on, active duty of members of
the uniformed services . . . during a war or during a national emergency declared
by the President or Congress.
10 U.S.C. § 101(a)(13) (2006).
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Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
geous to reservists than section 6323(a) leave, most notably the provision
limiting a reservist’s pay while on section 6323(b) leave to the higher of
his military or civilian pay.
As explained in its letter requesting our opinion, the VA sees nothing
in section 6323 that requires a reservist to exhaust available leave under
section 6323(b) before taking leave under section 6323(a), and the VA
therefore believes that its reservist employees may elect, at their option,
to use military leave under section 6323(a) rather than section 6323(b).
Opinion Request at 2. OPM has adopted a contrary interpretation of the
statute, citing the 1969 CG Opinion. See OPM, OPM Policy Guidance
Regarding Reservist Differential Under 5 U.S.C. 5538 at 5–6 (Apr. 13,
2011) (“Reservist Differential Policy Guidance”). The VA, however,
maintains that neither the text nor the legislative history of section 6323
supports an exhaustion requirement. See Opinion Request at 3–4. The
VA believes that the 1996 amendment to section 6323(b) has under-
mined the reasoning in the 1969 CG Opinion. See id. at 5. The VA also
contends that OPM’s interpretation is inconsistent with an OPM regula-
tion implementing the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–
4334 (2006 & Supp. IV 2010), and that OPM’s interpretation would, in
some instances, force employees to forfeit accrued leave under section
6323(a). Opinion Request at 5–6.
In response to the VA’s opinion request, we solicited the views of
OPM, which adhered to the position expressed in its policy guidance
that a reservist is required to exhaust available leave under section
6323(b) before using leave under section 6323(a). Letter for John E.
Bies, Deputy Assistant Attorney General, Office of Legal Counsel,
Department of Justice, from R. Alan Miller, Associate General Counsel,
United States Office of Personnel Management at 7 (Sept. 2, 2011)
(“OPM Views Letter”). We also requested the views of the Department
of Defense (“DoD”), which informed us that it considers the question a
close one but agrees with OPM. Letter for John E. Bies, Deputy Assis-
tant Attorney General, Office of Legal Counsel, from Jeh Charles John-
son, General Counsel, Dep’t of Defense, at 2 (Nov. 10, 2011) (“DoD
Views Letter”).
135
36 Op. O.L.C. 129 (2012)
II.
We have carefully considered the text, context, legislative history, and
purposes of section 6323, as well as the interpretations of the agencies
whose views we solicited. In light of these factors, and cognizant of the
principle that statutes providing benefits to individuals engaged in mili-
tary service should be construed in the beneficiaries’ favor, we conclude
that a reservist need not exhaust his or her available leave under section
6323(b) before using leave under section 6323(a).
A.
Section 6323 does not contain an express exhaustion requirement, and
we can identify no basis for reading the text to include such a require-
ment. As described above, section 6323(a) states that an employee “is
entitled to leave” under that provision “for active duty, inactive-duty
training . . . , funeral honors duty . . . , or engaging in field or coast de-
fense training . . . as a Reserve of the armed forces or a member of the
National Guard.” Nothing in that language suggests that leave under
section 6323(a) is contingent on an employee’s first using leave available
under other provisions. Instead, Congress’s use of the word “entitled”
indicates that an employee has a right to leave under that provision so
long as he or she performs certain military activities as a Reserve or
National Guard member. The ordinary meaning of the word “entitled,” in
legal and general usage, is “give[n] a right or title to,” “qualif [ied] . . .
for,” or “furnish[ed] with proper grounds for seeking or claiming some-
thing.” Webster’s Third New International Dictionary 758 (1993) (“Web-
ster’s Dictionary”); accord Random House Dictionary of the English
Language 649 (2d ed. 1987) (“Random House Dictionary”); see Ingalls
Shipbuilding, Inc. v. Dir., Office of Workers’ Comp. Programs, Dep’t of
Labor, 519 U.S. 248, 255–56 (1997). The statute does not condition the
employee’s right to leave on satisfaction of additional prerequisites, such
as exhaustion of other available types of leave.
Similarly, nothing in the text of section 6323(b) indicates that exhaus-
tion of the leave it provides is a prerequisite to an employee’s use of leave
under section 6323(a). Section 6323(b) states that an employee who “(1)
is a member of a reserve component of the Armed Forces . . . or the
National Guard” and (2) performs one of three specified types of military
136
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
service “is entitled, during and because of such service, to leave without
loss of, or reduction in, pay, leave to which he otherwise is entitled, credit
for time or service, or performance or efficiency rating.” As discussed
above, use of the word “entitled” makes clear that the employee has “a
right” to leave under section 6323(b) if he or she satisfies the listed condi-
tions. It does not suggest that the employee is required to take section
6323(b) leave, much less that the employee is required to take section
6323(b) leave before using a different type of leave to which the employ-
ee has a right under another statutory provision.
We have found no reason to depart from the plain meaning of section
6323 and to import into the statute a requirement that employees exhaust
section 6323(b) leave before using section 6323(a) leave. On the contrary,
as explained below, reading section 6323 to contain an exhaustion re-
quirement would be in tension with its legislative and drafting history,
would be inconsistent with the interpretation of other leave statutes, and
would undermine Congress’s purposes in enacting section 6323(b), which
included improving the financial situation of reservists by supplementing
the military leave already available to them. See infra Part II.B–D.
OPM advances two textual arguments in support of an exhaustion re-
quirement. First, OPM observes that sometimes when a statute provides
that an individual is “entitled” to a certain benefit, the individual is
required to accept that benefit. OPM Views Letter at 2. For example,
OPM notes, employees who are “entitled” to pay under various statutory
provisions must accept that pay and cannot chose to waive it. Id. (citing
5 U.S.C. §§ 5334(b), 5363, 5534, 5562 (2006); 5 U.S.C. §§ 5551, 5595
(2006 & Supp. IV 2010)). OPM thus contends that “the word ‘entitled’
in section 6323(b) should be interpreted as meaning ‘required.’” Id. at 3.
OPM is correct that federal employees are prohibited from waiving
pay to which they are statutorily entitled, but the basis for that prohibi-
tion is not that the word “entitled” means “required.” Instead, the prohi-
bition derives from the principle, first recognized in Glavey v. United
States, 182 U.S. 595 (1901), that allowing a federal employee to agree to
accept a salary lower than the one set by Congress would violate public
policy. See Employment of Retired Army Officer as Superintendent of
Indian School, 30 Op. Att’y Gen. 51, 56 (1913). Such salary waivers are
against public policy because permitting them would effectively cede to
the Executive Branch Congress’s power to fix the salaries of federal
137
36 Op. O.L.C. 129 (2012)
officials and would disadvantage those individuals who are unable or
unwilling to work for less than the salary prescribed by the legislature.
See Glavey, 182 U.S. at 609. We are not aware of any comparable public
policy that requires federal employees to use all of the leave for which
they qualify. On the contrary, employees may donate annual leave to
other employees, 5 U.S.C. § 6332 (2006), or forfeit leave by not using it,
see, e.g., id. § 6304 (2006 & Supp. IV 2010). In any event, reading the
word “entitled” to mean “required” would not support a rule that em-
ployees must use leave under section 6323(b) before they may use leave
under section 6323(a), because section 6323(a) also states that employees
are “entitled” to leave under its provisions. Thus, the word “entitled”
provides no basis for requiring an employee to exhaust section 6323(b)
leave before using leave under section 6323(a). 5
Second, OPM (along with DoD) contends that an exhaustion require-
ment is mandated by section 6323(b)’s admonition that leave under its
provisions is “without loss of, or reduction in, pay, leave to which [the
employee] otherwise is entitled, credit for time or service, or performance
or efficiency rating.” 5 U.S.C. § 6323(b); see OPM Views Letter at 3;
DoD Views Letter at 2. OPM and DoD maintain that requiring an em-
ployee to use all available leave under section 6323(b) before using leave
under section 6323(a) is necessary to prevent “loss of” or “reduction in”
section 6323(a) leave, which is “leave to which [the employee] otherwise
is entitled.” OPM Views Letter at 3; DoD Views Letter at 2. That posi-
tion, however, is based on the faulty premise that a reservist loses or
suffers a reduction in section 6323(a) leave by taking that leave.
The use of leave is not a loss of leave. The word “loss” means a “dep-
rivation” or a “decrease in amount, magnitude, or degree.” Webster’s
Dictionary at 1338; accord Random House Dictionary at 1137. Similarly,
the word “reduction” generally means “a decrease in size, amount, ex-
tent, or number,” a “diminution,” a “limitation in scope,” or some other
“restriction.” Webster’s Dictionary at 1905; accord Random House Dic-
5 OPM also points out that entitlements may be conditioned on the satisfaction of statu-
tory prerequisites, so that even though section 6323(a) states that an employee is “enti-
tled” to leave, the employee may not be able to take that leave unless he or she satisfies
certain conditions, such as first exhausting other available leave. OPM Views Letter at 3.
We agree that entitlements may be conditional, but, as discussed above, nothing in the
text of section 6323 conditions the use of leave under section 6323(a) on exhaustion of
leave under section 6323(b).
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Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
tionary at 1618. An employee’s voluntary decision to take leave under
section 6323(a) for the purposes for which it is provided is not a “depriva-
tion” of, “diminution” in, or other “limitation” or “restriction” on that
leave. Thus, just as an employee does not suffer a “loss of ” or “reduction
in” annual leave when the employee chooses to take such leave to go on
vacation, an employee does not suffer a “loss of ” or “reduction in” sec-
tion 6323(a) leave when the employee chooses to take that leave, rather
than leave under section 6323(b), to perform military service.
In fact, a requirement that employees use section 6323(b) leave before
using section 6323(a) leave may itself contravene the prohibition against
loss of, or reduction in, other leave. Requiring an employee to exhaust
available leave under section 6323(b) before using leave under section
6323(a) can be viewed as a “reduction in” section 6323(a) leave. The
exhaustion requirement can be seen as a “limitation” or “restriction” on
section 6323(a) leave because it mandates that employees first use anoth-
er, less desirable form of leave. Moreover, at least in some cases, an
exhaustion requirement might result in an employee’s actual “loss of ”
section 6323(a) leave. As the VA points out, reservists are permitted to
carry forward no more than 15 days of section 6323(a) leave into the next
fiscal year. Opinion Request at 6. Thus, if 15 days before the end of the
fiscal year a reservist with a leave balance under section 6323(a) of 30
days were called to participate in active duty that qualified for leave under
both section 6323(a) and section 6323(b), and the reservist were required
by the exhaustion requirement to use section 6323(b) leave for those 15
days, the reservist would forfeit 15 days of section 6323(a) leave. Id.
Absent an exhaustion requirement, the reservist could use those 15 days
of section 6323(a) leave rather than forfeiting them.
Even assuming the existence of some ambiguity about whether section
6323’s text imposes an exhaustion requirement, we would resolve that
ambiguity by declining to read the statute to contain such a requirement.
Section 6323 provides benefits for federal employees who perform mili-
tary service, and it is well established that “provisions for benefits to
members of the Armed Services are to be construed in the beneficiaries’
favor.” Henderson, 131 S. Ct. at 1206 (quoting King v. St. Vincent’s
Hosp., 502 U.S. 215, 220–21 n.9 (1991)); see also, e.g., Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (observing
that the Selective Training and Service Act of 1940 should “be liberally
construed for the benefit of those who left private life to serve their coun-
139
36 Op. O.L.C. 129 (2012)
try in its hour of great need”). Accordingly, we conclude that the statutory
text does not require that employees exhaust leave under section 6323(b)
before using leave under section 6323(a).
B.
The legislative and drafting history of section 6323(b) confirms our
interpretation of the statute’s text. The committee reports and floor
statements accompanying section 6323(b)’s enactment make clear that it
was intended to supplement existing leave under section 6323(a), not to
displace or restrict it. The committee reports and individual Members of
Congress consistently described section 6323(b) as providing “addition-
al” leave, above and beyond the military leave already provided by
section 6323(a). See, e.g., H.R. Rep. No. 90-1560, at 2, 6; S. Rep. No.
90-1443, at 1; 114 Cong. Rec. at 19,388 (statement of Rep. Henderson);
114 Cong. Rec. at 19,389 (statement of Rep. Corbett); 114 Cong. Rec. at
22,496 (description of legislation by Senate’s Assistant Legislative
Clerk); 114 Cong. Rec. at 27,321 (statement of Rep. Dulski); 114 Cong.
Rec. at 29,633 (statement of Sen. Mansfield).
The House Committee Report explained that, although reservists were
already “entitled to leave, not in excess of 15 days in a calendar year, for
active duty,” “[t]he 15 days generally [were] sufficient to cover only the
statutory required participation during each year by such employees in
training.” H.R. Rep. No. 90-1560, at 3. As a result, reservists who were
called to perform further military duties—for example, to help quell the
civil disturbances in the spring of 1968—were forced to take annual leave
or leave without civilian pay for some of their military service. See id. at
2–3; 114 Cong. Rec. at 11,114 (statement of Rep. Machen) (“A number of
members of the Maryland National Guard who are Federal employees
informed me that because of their activation for civil disturbance duty
they would be forced to take annual leave later this year when they go
into their 2-week annual training periods.”). Section 6323(b) was enacted
to provide “more military leave” in order to “correct this inequity.” 114
Cong. Rec. at 19,390 (statement of Rep. Machen); id. at 11,114 (same);
see H.R. Rep. No. 90-1560, at 2–4 (stating that the “additional leave”
provided by section 6323(b) would alleviate the “personal inconvenience”
and “financial hardship” caused by the inadequacy of existing military
leave).
140
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
The legislative history’s discussion of the language “without loss of,
or reduction in, . . . leave to which [the employee] otherwise is entitled,”
5 U.S.C. § 6323(b), in no way suggests that this language was intended
to impose a requirement that employees exhaust other available leave
before using leave under section 6323(b). The sole reference to the
language appears in the House Committee Report, which stated that
[t]he leave to be granted under [section 6323(b)] is to be granted
without loss or reduction in pay; leave to which [the employee]
otherwise is entitled, whether annual leave, sick leave, or military
training leave; credit for time or service; or performance or effi-
ciency rating.
H.R. Rep. No. 90-1560, at 6. The phrasing in the Report suggests that the
prohibition on loss of or reduction in leave becomes relevant only once
leave is “granted” and thus does not impose a requirement that an em-
ployee request section 6323(b) leave whenever entitled to it or before
using other leave. In addition, the Report suggests that the qualification
“without loss of, or reduction in,” applies to leave in the same manner that
it applies to pay, credit for time or service, and performance or efficiency
rating, and the concept of exhaustion makes no sense with respect to the
latter items. For these reasons, the Report supports the conclusion drawn
from the statutory text—that the phrase is best and most naturally read as
protecting employees from being deprived of other leave (or being other-
wise penalized) when they use leave under section 6323(b).
This interpretation of the statutory language is confirmed by the draft-
ing history of section 6323(b). An earlier version of the legislation did not
contain language prohibiting loss of or reduction in “leave to which [the
employee] otherwise is entitled” but stated only that section 6323(b) leave
would be “without loss of pay, time, or efficiency rating.” H.R. 2635,
90th Cong. (1967). The Civil Service Commission recommended various
technical changes to that version of the bill, including modifications to
“mak[e] clear that leave provided by it is in addition to military leave
provided by [section 6323(a)].” H.R. Rep. No. 90-1560, at 12 (Letter for
L. Mendel Rivers, Chairman, House Committee on Armed Services, from
John M. Macy, Jr., Chairman, Civil Service Commission (Apr. 19, 1968))
(emphasis added). The House Committee on the Post Office and Civil
Service subsequently reported a new version of the legislation, which for
the first time contained the phrase “without loss of or reduction in . . .
141
36 Op. O.L.C. 129 (2012)
leave to which [the employee] otherwise is entitled.” Id. at 6. The Com-
mittee Report explained that the Civil Service Commission’s recommen-
dations had been “embodied” in the changes that the Committee had made
to the bill. Id. at 2. Thus, the drafting history suggests that the phrase
“without loss of, or reduction in, . . . pay to which [the employee] other-
wise is entitled” was intended to clarify that section 6323(b) leave is
supplemental to other available leave, not to impose an exhaustion re-
quirement.
OPM and DoD maintain that the legislative history supports the infer-
ence of an exhaustion requirement because, at the end of its discussion of
the provisions added by the 1968 legislation, the House Committee Report
states that “[t]he granting of leave and the reduction in civilian pay under
these provisions are mandatory, and neither the agency nor the employee
will have any discretion in this regard as to the application of the provi-
sions involved.” H.R. Rep. No. 90-1560, at 7; see OPM Views Letter at
4–5; DoD Views Letter at 2. In our view, this passage does not suggest
that section 6323(b) contains an exhaustion requirement or make the
“requesting” of leave mandatory. It states that the “granting” of leave is
mandatory, which indicates only that an agency must grant leave if an
employee requests it. The passage also says that “neither the agency nor
the employee will have any discretion in this regard as to the application
of the provisions involved.” H.R. Rep. No. 90-1560, at 7 (emphasis add-
ed). But the statement that the employee lacks discretion appears to refer
to the fact that an employee who chooses to take section 6323(b) leave
must accept “the reduction in civilian pay” mandated by section 5519, not
to require employees to request leave whenever they are entitled to it.
Accordingly, the legislative and drafting history does not suggest that
section 6323(b) contains an exhaustion requirement.
C.
Related statutory provisions also support the conclusion that section
6323(b) does not contain an exhaustion requirement. Generally, other
statutes providing for leave do not require an employee to use one type of
leave before, or instead of, another if the employee’s activity qualifies for
multiple types of leave.
For example, employees are “entitled” to annual leave under 5 U.S.C.
§ 6303 (2006) and sick leave under 5 U.S.C. § 6307 (2006). When an
142
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
employee qualifies for both annual and sick leave for the same time
period, the employee is not required to exhaust one type of leave before
using the other. See 5 C.F.R. § 630.401(a) (2011) (stating that an employ-
ing agency “must” grant sick leave if an employee meets specified crite-
ria); General Accounting Office, GAO/OGC-96-6, Civilian Personnel
Law Manual, Title II—Leave at 2-15 (4th ed. 1996) (noting that “[a]n
absence which is otherwise chargeable to sick leave may be charged to
annual leave if the employee so requests and the agency agrees”).
The same interpretation and practice are followed under statutes that,
like section 6323(b), state that leave under their provisions is “without
loss of, or reduction in, . . . leave to which [the employee] otherwise is
entitled.” 6 For example, 5 U.S.C. § 6323(d)(1) (2006) provides that a
military reserve technician
is entitled at such person’s request to leave without loss of, or reduc-
tion in, pay, leave to which such person is otherwise entitled, credit
for time or service, or performance or efficiency rating, for each day,
not to exceed 44 workdays in a calendar year, in which such person
is on active duty without pay . . . for participation in operations out-
side the United States, its territories and possessions.
DoD guidance, with which OPM has expressed its agreement, makes
clear that a military reserve technician may choose to use other forms of
leave, including annual leave and leave under section 6323(a), before
using section 6323(d)(1) leave. See Memorandum for Human Resources
Offices and Civilian Personnel Offices from Earl T. Payne, Director,
Civilian Personnel Management Service, DoD, Subject: Military Leave
att. 2, at 2–3 (Apr. 2, 1996) (“1996 DoD Memorandum”); Memorandum
to Directors of Personnel from Office of Compensation Policy, OPM,
Subject: Military Leave (Apr. 24, 1996). That conclusion is confirmed by
6 Many of these provisions, unlike section 6323(b), do not entail a concomitant reduc-
tion in pay. An employee therefore has little or no incentive to substitute another type of
leave for the leave provided, as he or she does in the case of section 6323(b) leave. In our
view, however, the salient fact about these provisions is that an employee retains the right
to make such a substitution notwithstanding the fact that the provisions contain the same
admonition as section 6323(b) that the leave provided is “without loss of, or reduction in,”
other types of leave.
143
36 Op. O.L.C. 129 (2012)
section 6323(d)(1)’s text, which states that leave under its provisions is
“at [the technician’s] request.” 7
Similarly, 5 U.S.C. § 6326 (2006), which was enacted by the same law
as section 6323(b), see Pub. L. No. 90-588, §§ 1(a), 2(a), 82 Stat. at 1151,
provides that an employee is
entitled to not more than three days of leave without loss of, or re-
duction in, pay, leave to which he is otherwise entitled, credit for
time or service, or performance or efficiency rating, to make ar-
rangements for, or attend the funeral of, or memorial service for, an
immediate relative who died as a result of wounds, disease, or injury
incurred while serving as a member of the Armed Forces in a combat
zone.
OPM guidance on section 6326 does not require that an employee ex-
haust available section 6326 leave before using annual leave or another
applicable type of leave. See OPM, Leave for Funerals and Bereavement,
Funeral Leave for Combat-Related Death of an Immediate Relative,
http://opm.gov/oca/leave/HTML/Funeral.asp (last visited ca. Apr. 2012).
Moreover, OPM’s regulations suggest that an employee may use other
types of leave before, or instead of, taking leave under section 6326,
because the regulations provide that section 6326 leave shall be granted
“as is needed and requested by” the employee. 5 C.F.R. § 630.804
(2011). 8
7 Although, unlike section 6323(d)(1), section 6323(b) does not expressly state that its
leave is “at [the employee’s] request,” the absence of that language does not imply that
section 6323(b) leave is mandatory. Section 6323(b) and section 6323(d)(1) were
enacted by separate laws, 28 years apart. Compare Pub. L. No. 90-588, § 2(a), 82 Stat. at
1151 (originally enacting what is now section 6323(b), as amended), with NDAA for FY
1996, § 1039, 110 Stat. at 432–33 (originally enacting section 6323(d)(1)). In those
circumstances, the presumption that Congress acts intentionally when it includes lan-
guage in one section of a statute but omits it in another section of the same act does not
apply. See Johnson v. United States, 130 S. Ct. 1265, 1272–73 (2010). Moreover, leave
statutes generally do not include language stating that leave is “at [the employee’s]
request” even when the leave provided is voluntary rather than mandatory. See, e.g.,
5 U.S.C. § 6303 (annual leave); 5 U.S.C. § 6307 (sick leave).
8 OPM guidance on 5 U.S.C. § 6328 (2006)—which provides that “[a] Federal law
enforcement officer or a Federal firefighter may be excused from duty without loss of, or
reduction in, pay or leave to which such officer is otherwise entitled, or credit for time or
service, or performance or efficiency rating, to attend the funeral of a fellow Federal law
144
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
OPM guidance on 5 U.S.C. § 6327 (2006) also suggests that an em-
ployee may choose which type of applicable leave he or she wants to use.
That statute provides that an employee is “entitled to leave without loss
of or reduction in pay, leave to which [the employee is] otherwise enti-
tled, credit for time or service, or performance or efficiency rating, for
the time,” up to certain annual limits, “necessary to permit such employ-
ee to serve as a bone-marrow or organ donor.” Id. OPM’s guidance states
that an employee “may,” rather than “must,” use section 6327 leave and
that such leave “is in addition to annual leave and sick leave.” OPM,
Bone Marrow or Organ Donor Leave, http://www.opm.gov/oca/leave/
html/DONOR.asp (last visited ca. Apr. 2012). 9
enforcement officer or Federal firefighter, who was killed in the line of duty”—also gives
no indication that section 6328’s funeral leave must be used instead of annual leave or
other applicable types of leave. See OPM, Leave for Funerals and Bereavement, Funeral
Leave for First Responders, http://opm.gov/oca/leave/HTML/Funeral.asp (last visited ca.
Apr. 2012).
9 We are aware of only one leave statute that may not permit employees to choose
among multiple available types of leave. Under 5 U.S.C. § 6322 (2006), an employee is
“entitled to leave without loss in, or reduction in, pay, leave to which he otherwise is
entitled, credit for time or service, or performance or efficiency rating” for jury service
or service as a witness in certain cases to which the government is a party. OPM’s
guidance on section 6322 does not state that an employee must use leave under that
section rather than other applicable leave, see OPM, Court Leave, http://www.opm.gov/
oca/leave/HTML/courtlv.asp (last visited ca. Apr. 2012), but the Comptroller General
has concluded that, where applicable, leave under section 6322 must be used, rather than
annual leave. See, e.g., Mr. Thomas, B-119969, 1969 WL 4324, at *2 (Comp. Gen. Mar.
21, 1969) (“1969 CG Letter”); Richard A. Gresham, B-119969, 1955 WL 1962, at *1
(Comp. Gen. Mar. 3, 1955) (“1955 CG Letter”); Witnesses; Jurors—Government Em-
ployees—Compensation, etc., 27 Comp. Gen. 83, 87–88 (1947). The Comptroller Gen-
eral based that conclusion, however, on analyses of earlier, different versions of the
statute, which also differed from section 6323(b). See 1955 CG Letter at *1 (quoting
section 1 of Public Law 76-676, 54 Stat. 689, 689, which provided that time for jury
service “shall not . . . be deducted from the time allowed for any leave of absence
authorized by law”); 1969 CG Letter at 2 (quoting 5 U.S.C. § 6322 (Supp. IV 1968),
which provided that “[t]he period of absence for jury service is without deduction from
other leave of absence authorized by statute”). We have found no Comptroller General
guidance attempting to reconcile this interpretation of section 6322 with the current
statutory language. In fact and to the contrary, a 1981 Comptroller General opinion
concluded that section 6322’s prohibition on “loss of, or reduction in, . . . leave to which
[the employee] otherwise is entitled” “specifically prohibited” a forfeiture of annual
leave that resulted when an agency required an employee to use leave under section 6322
instead of “use it or lose it” annual leave. George J. DiGiulio—Restoration of Forfeited
145
36 Op. O.L.C. 129 (2012)
In sum, we believe that Congress expected that, like most leave stat-
utes, section 6323(b) would be interpreted to allow employees to choose
between using leave under its provisions and using other applicable types
of leave.
D.
Interpreting section 6323(b) to contain an exhaustion requirement
would also be contrary to the purposes underlying the statute. As dis-
cussed above, Congress enacted section 6323(b) to supplement the exist-
ing 15 days of military leave provided in section 6323(a) and to alleviate
the financial hardship of employees who were being forced to take leave
without civilian pay when they performed military duty in excess of those
15 days. See supra Part II.B (discussing legislative history). Requiring
employees to exhaust section 6323(b) leave before using leave under
section 6323(a) would frustrate those purposes in two ways.
First, interpreting section 6323(b) to contain an exhaustion requirement
would undermine Congress’s intent to supplement the leave granted under
section 6323(a). An exhaustion requirement would reduce the value of
section 6323(a) leave by making it subject to an additional limitation—
that it may not be used until after an alternative, less favorable form of
leave has been used. Moreover, as described above, an exhaustion re-
quirement could cause some employees to forfeit section 6323(a) leave
that they could otherwise have used. See supra p. 139. Those consequenc-
es would conflict both with Congress’s intent that section 6323(b) sup-
plement existing leave and with the specific statutory admonition that
section 6323(b) not trigger any “loss of, or reduction in” other leave to
which employees are entitled.
Second, reading section 6323(b) to contain an exhaustion requirement
would undermine Congress’s intent to alleviate the financial hardship
faced by employees who perform military duty, because it would put
some of those employees in a worse financial position than before section
6323(b) was enacted. For employees whose military pay exceeds their
Annual Leave, B-201093, 1981 WL 22549, at *2–3, *4 (Comp. Gen. July 15, 1981). In
any event, the Comptroller General’s construction of section 6322 would not determine
the proper interpretation of section 6323(b).
146
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
civilian pay, taking section 6323(b) leave does not provide a significant
financial advantage over taking leave without civilian pay, because, in
either scenario, the employees receive only military pay. 10 Taking section
6323(a) leave, in contrast, provides a significant financial advantage over
taking leave without civilian pay, because employees on section 6323(a)
leave receive both civilian pay and military pay. As a result, a require-
ment that employees exhaust section 6323(b) leave before using section
6323(a) leave could increase the financial hardship of some employees
whose military pay exceeds their civilian pay. For example, before section
6323(b) was enacted, if such employees were called to active duty to aid
in law enforcement for 20 days, they could receive both military and
civilian pay for the first 15 days and then military pay alone for the five
remaining days (while on leave without civilian pay). If section 6323(b)
were interpreted to contain an exhaustion requirement, those employees
would now be required to use section 6323(b) leave for the entire 20 days,
during which time they would receive only military pay. 11 It is doubtful
that Congress intended that result.
E.
In support of their view that section 6323(b) contains an exhaustion
requirement, OPM and DoD rely in significant part on developments
subsequent to the statute’s original enactment. See OPM Views Letter at
5–6; DoD Views Letter at 2–3. In particular, they point to the statutory
language added in 1996, which states that, at an employee’s request, an
absence that qualifies for leave under section 6323(b) may instead “be
10 In some situations, if an employee’s military service is of especially long duration,
taking leave under section 6323(b) might provide a slight financial advantage because
extended periods of leave without pay can adversely affect an employee’s right to bene-
fits. See OPM, Effect of Extended Leave Without Pay (LWOP) (or Other Nonpay Status)
on Federal Benefits and Programs, http://www.opm.gov/oca/leave/html/LWOP_eff.asp
(last visited ca. Apr. 2012).
11 If those employees also performed their 15 days of annual training later in the same
fiscal year, then the financial disadvantage would be minimal, because the employees
would have to use leave without civilian pay, rather than section 6323(a) leave, for the
training period. Even in that situation, however, an exhaustion requirement would deprive
the employees of the opportunity to choose which ordering of leave was most advanta-
geous in light of all their financial and other personal circumstances.
147
36 Op. O.L.C. 129 (2012)
charged to the employee’s accrued annual leave or to compensatory time
available to the employee,” but “[t]he period of absence may not be
charged to sick leave.” 5 U.S.C. § 6323(b) (as amended by the NDAA for
FY 1996, § 516(a), 110 Stat. at 309). OPM and DoD reason that, by
adding this language, which makes clear that employees need not exhaust
section 6323(b) leave before using annual leave or compensatory time,
Congress must have intended that employees be required to exhaust leave
under section 6323(b) before using any type of leave not specified in the
amendment, including leave under section 6323(a). See OPM Views
Letter at 5–6; DoD Views Letter at 2–3.
We do not believe, however, that it is appropriate to draw that negative
inference from the 1996 amendment. Although the 1996 amendment
expressly permits use of annual leave or compensatory time instead of
section 6323(b) leave without mentioning section 6323(a) leave, the
amendment likewise expressly prohibits use of sick leave instead of
section 6323(b) leave without mentioning section 6323(a) leave. As a
result, one could draw a negative inference from the amendment in either
direction—that using section 6323(a) leave in lieu of section 6323(b)
leave is not permitted, because of the express permission granted for
annual leave, or that using section 6323(a) leave is not prohibited, because
of the express prohibition regarding sick leave. Because it is not possible
to draw both of those contradictory inferences, we think it is not appropri-
ate to draw either. Moreover, inferring from Congress’s silence a re-
quirement that reservists must exhaust section 6323(b) leave before using
section 6323(a) leave would be contrary to the well-established principle,
discussed above, that provisions governing benefits for individuals who
perform military service must be construed in the beneficiaries’ favor.
Accordingly, the 1996 language should be read to mean only what it says:
Reservists may choose to use annual leave or compensatory time in lieu of
section 6323(b) leave, and they may not choose to use sick leave. The
1996 amendment simply does not address whether reservists may use
other types of leave, such as section 6323(a) leave, instead of or before
using section 6323(b) leave.
OPM and DoD nonetheless suggest that, because the Comptroller Gen-
eral had interpreted section 6323(b) to require exhaustion before use of all
other types of leave, and the 1996 amendment addressed only whether
exhaustion is required before use of annual leave and compensatory time,
148
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
Congress’s failure to address whether exhaustion is required before use
of other types of leave, including leave under section 6323(a), should be
construed as ratifying the exhaustion requirement as applied to those
types of leave. See OPM Views Letter at 5; DoD Views Letter at 2.
Although the Supreme Court has sometimes found that Congress has
ratified or acquiesced in a prior judicial or administrative interpretation
by reenacting the statutory language on which that interpretation was
based, that principle does not apply here.
Recent Supreme Court cases make clear that the concept of congres-
sional acquiescence in prior statutory interpretations must be applied
“with extreme care” and that courts should conclude that Congress has
ratified a prior administrative interpretation only if there is “over-
whelming evidence of acquiescence” in the agency’s interpretation.
Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169–
70 & n.5 (2001). The circumstances surrounding the 1996 amendment
to section 6323(b) do not present “overwhelming” evidence of congres-
sional ratification. Indeed, several requirements for congressional
ratification identified in the Court’s recent cases are not satisfied.
First, ratification occurs only when Congress has reenacted without
change the precise language that was the subject of the prior interpreta-
tion. See Jama v. Immigration & Customs Enforcement, 543 U.S. 335,
349 (2005); United States v. Wells, 519 U.S. 482, 495–96 (1997); Estate
of Cowart v. Nicklas Drilling Co., 505 U.S. 469, 478 (1992). The 1996
amendment did not reenact the language on which the Comptroller Gen-
eral based his 1969 interpretation (“without loss of, or reduction in, . . .
leave to which he otherwise is entitled”); instead, the amendment added
new language making clear that exhaustion of section 6323(b) leave is not
required before use of annual leave or compensatory time, a result that is
inconsistent with the reasoning in the Comptroller General’s opinion.
Second, the Court’s cases indicate that courts should find ratification
only when “the record of congressional discussion preceding reenactment
makes” some “reference” to the prior interpretation or there is “other
evidence to suggest that Congress was . . . aware of ” that interpretation.
Brown v. Gardner, 513 U.S. 115, 121 (1994); see also Solid Waste Agen-
cy, 531 U.S. at 169 n.5 (suggesting that the legislative record must show
that Congress considered the “precise issue”). Nothing in the legislative
149
36 Op. O.L.C. 129 (2012)
history of the 1996 amendment, however, indicates that Congress was
aware of a requirement that employees exhaust leave under section
6323(b) before using leave under section 6323(a). 12 The relevant commit-
tee reports simply state that, under the amendment, employees could
“elect, when performing public safety duty, to use either military leave,
annual leave, or compensatory time to which they are otherwise entitled.”
S. Rep. No. 104-112, at 241 (1995); H.R. Rep. No. 104-406, at 803
(1995); H.R. Rep. No. 104-450, at 794 (1996) (Conf. Rep.). 13
12 DoD notes that it had consistently interpreted the statute to contain such a require-
ment, and it presumes that Congress was aware of its interpretation. See DoD Views
Letter at 2. But we have not been able to locate any DoD articulation of its interpretation
predating the 1996 amendment. On the contrary, shortly before the amendment’s enact-
ment, DoD published its regulations implementing USERRA, one of which stated that
“[a]n employee performing service with the uniformed services must be []permitted, upon
request, to use any accrued annual leave (or sick leave, if appropriate), or military leave
during such service.” 5 C.F.R. § 353.208 (1996). That regulation seems inconsistent with
the proposition that section 6323(b) contains an exhaustion requirement, because the
regulation states that an employee performing military service “must be []permitted, upon
request, to use any . . . military leave during such service,” id., and “military leave”
includes section 6323(a) leave in addition to section 6323(b) leave. OPM asserts that the
regulation does not override the statutory conditions that generally apply to the various
leave types and therefore would not displace any exhaustion requirement imposed by
section 6323(b). See OPM Views Letter at 7. But even assuming that the regulation is not
actually inconsistent with an exhaustion requirement, it provides no indication that such a
requirement exists.
13 As DoD notes, the 1996 amendment essentially made permanent language that had
been included in appropriations legislation for the several preceding fiscal years. See DoD
Views Letter at 2. Nothing in the text or history of those appropriations acts shows
congressional awareness of a requirement that an employee exhaust leave under section
6323(b) before using leave under section 6323(a). We know of only one document
arguably suggesting that some in Congress may have been aware of an administrative
policy requiring such exhaustion. During 1990 hearings held by a subcommittee of the
House Appropriations Committee, Gen. Donald Burdick, Director of the Army National
Guard, and Maj. Gen. Philip G. Killey, Director of the Air National Guard, stated, in
response to questions about whether military technicians could be assigned to drug
interdiction missions in Active Duty for Special Work status, that they could, “exhausting
first their law enforcement leave and then election of either annual leave, compensatory
time, leave without payor unused military leave.” Dep’t of Def. Appropriations for 1991:
Hearings Before the Subcomm. on the Dep’t of Def. of the H. Appropriations Comm.,
pt. 3, 101st Cong. 405, 506 (1990). If the phrase “law enforcement leave” was intended to
refer to leave under section 6323(b), and the phrase “military leave” was intended to refer
to leave under section 6323(a), then Gen. Burdick’s and Maj. Gen. Killey’s remarks may
150
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)
Finally, congressional ratification occurs only when the statutory lan-
guage can reasonably be read to embody the prior administrative or judi-
cial interpretation. See Brown, 513 U.S. at 121 (“[w]here the law is plain,
subsequent reenactment does not constitute an adoption of a previous
administrative construction” (quoting Demarest v. Manspeaker, 498 U.S.
184, 190 (1991) (internal quotation marks omitted))). As explained above,
the text of section 6323(b) cannot be read to impose an exhaustion re-
quirement. See supra Part II.A. The language stating that an employee is
entitled to section 6323(b) leave “without loss of [,] or reduction in[,] . . .
leave to which he otherwise is entitled,” 1969 CG Opinion at 236 (quoting
section 6323(b)), fails to support, and is arguably inconsistent with, an ex-
haustion requirement. See supra p. 138. 14
At most, in the 1996 amendment, Congress failed to reject the
Comptroller General’s interpretation of section 6323(b) as applied to
leave types other than annual leave and compensatory time. Such
“[c]ongressional inaction lacks persuasive significance because several
equally tenable inferences [about Congress’s intent] may be drawn
have reflected their belief that reservists were required to exhaust section 6323(b) leave
before using section 6323(a) leave. Neither witness, however, explained which statutory
provisions they were referring to, and leave under both subsections (a) and (b) of section
6323 is commonly called “military leave.” We think it very unlikely that any legislators
who heard or read this testimony would have understood it to articulate the legal position
that reservists must exhaust section 6323(b) leave before using section 6323(a) leave or
would have retained awareness of the testimony when a different Congress amended
section 6323(b) six years later.
14 The Supreme Court has accepted ratification arguments in only three cases over the
past 20 years, each involving circumstances very different from those presented here. In
Forest Grove School District v. T.A., 557 U.S. 230, 239–40 (2009), Congress had reenact-
ed the precise language that the Supreme Court had previously interpreted. In Barnhart v.
Walton, 535 U.S. 212, 220 (2002), Congress had “frequently amended or reenacted the
relevant provisions without change,” and the Court viewed those reenactments only as
“further evidence” for giving deference to the agency’s longstanding construction of its
statute under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). In FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143–56 (2000), the
Court concluded that Congress had ratified the agency’s longstanding interpretation by
enacting six pieces of legislation that were inconsistent with the agency’s recent attempt
to alter that interpretation. Indeed, even cases from an earlier era more hospitable to
claims of congressional ratification generally involved enactment of the precise language
on which the prior interpretation was based, coupled with specific evidence that Congress
was aware of the interpretation. See, e.g., Lorillard v. Pons, 434 U.S. 575, 580–82 (1978).
151
36 Op. O.L.C. 129 (2012)
from” it. Cent. Bank of Denver, N.A. v. First Interstate Bank of Den-
ver, N.A., 511 U.S. 164, 187 (1994) (internal quotation marks omit-
ted). 15
III.
For these reasons, we conclude that section 6323(b) does not contain an
exhaustion requirement. A reservist who performs military service that
qualifies for leave under both section 6323(a) and section 6323(b) may
elect to take leave under section 6323(a) without first using all of his or
her available leave under section 6323(b).
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
15 OPM and DoD do not argue that their interpretation of section 6323(b) is entitled to
deference. Nonetheless, we considered whether, if the statute were ambiguous, their view
would receive deference from a court under either Chevron or Skidmore v. Swift & Co.,
323 U.S. 134 (1944). But neither OPM nor DoD has “express congressional authoriza-
tion[] to engage in the process of rulemaking or adjudication,” as is generally required for
an agency to receive deference under Chevron. See United States v. Mead Corp., 533 U.S.
218, 229 (2001). Nor would OPM and DoD’s interpretation receive significant weight
under Skidmore. Neither OPM nor DoD is charged with administering section 6323, and
neither OPM’s Reservist Policy Differential Guidance nor the 1996 DoD Memorandum
articulates a thorough analysis of the exhaustion issue confronted here. Instead, both rely
almost exclusively on the 1969 CG Opinion. See Reservist Policy Differential Guidance
at 5–6; 1996 DoD Memorandum. In any event, traditional tools of statutory construction
demonstrate that section 6323(b) does not contain an exhaustion requirement. See Chev-
ron, 467 U.S. at 842–43 (deference to agency is overcome where Congress has resolved
the issue).
152