Case: 22-1220 Document: 43 Page: 1 Filed: 05/15/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES FLYNN,
Petitioner
v.
DEPARTMENT OF STATE,
Respondent
______________________
2022-1220
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-21-0367-I-1.
______________________
Decided: May 15, 2023
______________________
BRIAN J. LAWLER, Pilot Law, PC, San Diego, CA, argued
for petitioner.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.
______________________
Before LOURIE, HUGHES, and STARK, Circuit Judges.
Case: 22-1220 Document: 43 Page: 2 Filed: 05/15/2023
2 FLYNN v. DEPARTMENT OF STATE
HUGHES, Circuit Judge.
Charles Flynn appeals the final decision of the Merit
Systems Protection Board denying his request for differen-
tial pay for his military service in the Army Reserve. Be-
cause our holdings in Adams v. Department of Homeland
Security, 3 F.4th 1375 (Fed. Cir. 2021) and Nordby v. Social
Security Administration, No. 21-2280 (Fed. Cir. May 11,
2023) dictate that the entitlement to differential pay under
5 U.S.C. § 5538(a) and 10 U.S.C. § 101(a)(13)(B) requires
the employee to serve in a contingency operation, we af-
firm.
I
The facts and procedural history of this appeal largely
mirror those laid out in Nordby. In Nordby, the federal em-
ployee was activated under 10 U.S.C. § 12301(d) to serve in
the military. Upon conclusion of his service, he requested
differential pay to make up the difference between the mil-
itary and civilian compensation. The agency denied the re-
quest, determining that military service under 10 U.S.C.
§ 12301(d) does not qualify for differential pay under 5
U.S.C. § 5538. The Board affirmed.
Similarly, Mr. Flynn was employed by the United
States Department of State as a Special Agent in the Bu-
reau of Diplomatic Security. He also served as Lieutenant
Colonel in the United States Army Reserve. From March
2020 to March 2022, he performed active duty under 10
U.S.C. § 12301 (d) at the Office of Military Commissions at
the Pentagon, providing support on a variety of legal is-
sues. For this duty period, he requested differential pay
from the agency. The agency denied his request, determin-
ing that those called to voluntary active duty pursuant to
10 U.S.C. § 12301(d) are not entitled to differential pay un-
der 5 U.S.C. § 5538(a). He appealed the decision to the
Merit Systems Protection Board. The Board affirmed, hold-
ing that he was not entitled to differential pay as a matter
Case: 22-1220 Document: 43 Page: 3 Filed: 05/15/2023
FLYNN v. DEPARTMENT OF STATE 3
of law because his activation orders under 10 U.S.C.
§ 12301(d) did not qualify as a contingency operation, for
which differential pay could be awarded under 5 U.S.C
§5538.
Mr. Flynn now appeals.
II
We set aside the Board’s decision only if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance 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). Legal conclusions by the Board are reviewed de
novo. Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363,
1366 (Fed. Cir. 2014).
III
Mr. Flynn concedes that our holding in Adams affects
the outcome of this case. Pet. Br. vi, 4–5. He dedicates all
of his argument to challenging Adams and does not purport
to show how his activation under 10 U.S.C. § 12301(d) war-
rants a different outcome from that of Adams. He also con-
cedes that the petitioners in Nordby raise the same
question: whether federal employees activated under 10
U.S.C. § 12301(d) are entitled to differential pay under 5
U.S.C. § 5538(a). Pet. Br. vi, 5.
The factual and procedural similarities between
Nordby and this case compel us to reach the same outcome
here. To receive differential pay, an employee “must have
served pursuant to a call to active duty that meets the stat-
utory definition of contingency operation.” Adams, 3 F.4th
at 1378; Nordby, No. 21-2280. slip op. at 4. And for volun-
tary activation under 10 U.S.C. § 12301(d) to qualify as a
contingency operation, “there must be a connection be-
tween the voluntary military service and the declared na-
tional emergency.” Nordby, No. 21-2280. slip op. at 5. But
Mr. Flynn has not alleged any connection between his
Case: 22-1220 Document: 43 Page: 4 Filed: 05/15/2023
4 FLYNN v. DEPARTMENT OF STATE
service and an ongoing national emergency, and thus failed
to demonstrate that his voluntary, active service under 10
U.S.C. § 12301(d) met the statutory definition of a contin-
gency operation. Accordingly, we hold that the Board
properly denied differential pay and affirm the decision of
the Board.
AFFIRMED
COSTS
No costs.