Federal Circuit Clarifies Statutory Requirements for Differential Pay When Federal Employees are Called to Active Duty
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The appellant, an administrative law judge with the Social Security Administration’s Office of Hearing Operations, filed this appeal challenging the final decision of the Merit Systems Protection Board denying his request for differential pay for his military service. While employed at the agency, the appellant was also a First Lieutenant in the Judge Advocate General’s Corps of the Army Reserve. From January to May 2017, he was activated under 10 U.S.C. § 12301(d) to perform military service and, during this period, he conducted basic trainings for new Judge Advocates.
The appellant requested differential pay from the agency to make up the difference between his military pay and what he would have been paid as an employee of the agency during his service. The agency denied this request, determining that he was not entitled to differential pay under 5 U.S.C. § 5538(a) because he was called to active duty pursuant to 10 U.S.C. § 12301(d). The appellant appealed to the Merit Systems Protection Board, and an administrative judge issued an initial decision denying his request. He did not file a petition for review with the Board but subsequently appealed the decision to the U.S. Court of Appeals for the Federal Circuit.
The Federal Circuit began by analyzing the statutory basis for providing differential pay between military and civilian compensation under § 5538(a). Section 5538(a) provides that “An employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed services pursuant 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].” Section 101(a)(13)(B), then, defines contingency operations 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.” The court explained that, in light of that statutory framework, an employee must have been called to active duty under the definition of a continency operation to qualify for differential pay.
The appellant, though, had been called to duty under 10 U.S.C. § 12301(d). Section 12301(d) provides for voluntary activation of a reservist to active duty. Further, it is not one of the listed statutory sections in Section 101(a)(13)(B), which defines contingency operation. In order for the appellant to qualify for differential pay, then, Section 12301(d) must fall under the umbrella of a “provision of law during a war or during a national emergency declared by the President or Congress.” The appellant argued that he was activated under such circumstances because Section 12301(d) is a provision of law and because the United States has been in a continuous state of national emergency since September 11, 2001.
The Federal Circuit rejected appellant’s argument. First, it noted that it had already heard and rejected this argument in Adams v. Department of Homeland Security, 3 F.4th 1375 (Fed. Cir. 2021). In Adams, the court specifically rejected such a broad reading of Section 5538 to include any activation of duty that coincides with a national emergency. It held, instead, that “to satisfy as ‘any other provision of law’ under 10 U.S.C. § 101(a)(13)(B) and qualify as a contingency operation, there must be a connection between the voluntary military service and the declared national emergency.” A temporal overlap, such as the one argued by the appellant, did not satisfy this requirement. The court similarly rejected the appellant’s argument that it should follow case law preceding Adams, holding that the cases were not in opposition and that Adams controlled appellant’s case.
For these reasons, the Federal Circuit determined that the agency properly denied differential pay and affirmed the decision of the Board.
Find the full case here: Nordby v. Social Security Administration
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