Opinion

Michael Sopko v. Department of Veterans Affairs

2026 MSPB 1

Court: Merit Systems Protection Board
Filed: Jan 22, 2026
Status: Published
Cited by: 0 cases
Authority: More cited than 38.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2026 MSPB 1

Docket No. DC-4324-21-0052-I-4

Michael Sopko,

Appellant,

Department of Veterans Affairs,

Agency.

January 22, 2026

Brian Lawler , Esquire, San Diego, California, for the appellant.

Christian Piatt , Esquire, Baltimore, Maryland, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision,

which denied his request for corrective action under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA) (codified as

amended at 38 U.S.C. §§ 4301-4335). For the reasons discussed below, we

GRANT the petition for review, REVERSE the initial decision as to the

appellant’s entitlement to differential pay under 5 U.S.C. § 5538(a), and ORDER

corrective action under that provision. We otherwise AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant is an agency employee and a member of the U.S. Air

Force Reserve. Sopko v. Department of Veterans Affairs, MSPB Docket

No. DC-4324-21-0052-I-1, Initial Appeal File (IAF), Tab 6 at 7, Tab 8 at 17, 19.

Pursuant to 10 U.S.C. § 12301(d), he was ordered to active duty to complete

Officer Training School at Maxwell Air Force Base in Montgomery, Alabama,

from August 25 until October 21, 2020. IAF, Tab 6 at 7-9.

¶3 Based on his active-duty service, the appellant requested that the

agency pay him differential pay pursuant to 5 U.S.C. § 5538(a), provide him

22 work days of additional military leave under 5 U.S.C. § 6323(b)(2)(B), and

allow him 5 days of excused absence upon his return to duty pursuant to a

November 14, 2003 memorandum issued by then-President George W. Bush.

IAF, Tab 1 at 9-11; Sopko v. Department of Veterans Affairs, MSPB Docket

No. DC-4324-21-0052-I-4, Appeal File (I-4 AF), Tab 6 at 4-10. After the agency

denied these requests, the appellant filed a Board appeal alleging that the denials

violated USERRA. IAF, Tab 1 at 8-9, 11-12, Tab 8 at 28-31.

¶4 Following the appellant’s withdrawal of his hearing request, the

administrative judge issued an initial decision on the written record denying the

appellant’s request for corrective action. I-4 AF, Tab 11, Initial Decision (ID)

at 1, 3, 16. As to the appellant’s claims under 5 U.S.C. §§ 5538(a) and 6323(b),

the administrative judge found that the appellant’s service was not in support of a

contingency operation under 10 U.S.C. § 101(a)(13) as necessary for differential

pay and up to 22 days of leave. ID at 5, 10-14. The administrative judge further

reasoned that the appellant was not entitled to the additional leave provided for

under 5 U.S.C. § 6323(b) because he did not meet the statutory prerequisite of

qualifying as an “employee” as defined under 5 U.S.C. § 2105. ID at 6-10.

The administrative judge also concluded that, in any event, the benefit under

section 6323(b) did not entitle an employee to additional leave but merely

allowed him to use leave he had otherwise accrued. ID at 13. Finally, as to the

appellant’s claim that he was entitled to 5 days of excused absence pursuant to

President Bush’s November 14, 2003 memorandum , the administrative judge

found that the appellant did not qualify for this benefit because he did not serve in

the Global War on Terrorism or in connection with any of the military operations

identified in the memorandum, such as Operation Noble Eagle and Operation

Enduring Freedom. ID at 15-16.

¶5 The appellant has filed a petition for review in which he disagrees

with the administrative judge’s conclusions that, as a matter of law, the appellant

is not entitled to the benefits he seeks. Petition for Review (PFR) File, Tab 1

at 7-16. He also argues that, after the record closed below, he was awarded the

Global War on Terrorism Service Medal. Id. at 15-16. He argues that this medal

proves that his service supported the Global War on Terrorism and a contingency

operation. Id. at 16. The agency has filed a response, and the appellant has filed

a reply. PFR File, Tabs 3-4.

¶6 The appellant also filed a motion to stay proceedings on review for

the U.S. Supreme Court’s anticipated decision in Feliciano v. Department of

Transportation. PFR File, Tab 5. After the Court issued its decision in that case,

Feliciano v. Department of Transportation, 605 U.S. 38 (2025), he filed a motion

to lift the stay of the proceedings, PFR File, Tab 6. Therefore, we need not

address the appellant’s motion.

ANALYSIS

The appellant is entitled to differential pay pursuant to 5 U.S.C. § 5538 (a).

¶7 Section 5538(a) of Title 5 “requires the [G]overnment to provide

differential pay to a [F]ederal civilian employee reservist when the military orders

him to active-duty service ‘under . . . a provision of law referred to in [10 U.S.C.

§] 101(a)(13)(B).’” Feliciano, 605 U.S. at 42 (quoting 5 U.S.C. § 5538(a)).

Section 101(a)(13)(B), in turn, defines certain types of military operations as

“contingency operation[s],” including a catchall category for those that result “in

the call or order to, or retention on, active duty . . . under . . . any other provision

of law during a war or during a national emergency declared by the President or

Congress.” In its decision in Feliciano, which was issued after the initial

decision in this case, the U.S. Supreme Court interpreted the term “during” in

section 101(a)(13)(B) to mean “contemporaneous with” a national emergency.

Feliciano, 605 U.S. at 44-45. The Court rejected the U.S. Court of Appeals for

the Federal Circuit’s determination in Adams v. Department of Homeland

Security, 3 F.4th 1375, 1379-80 (Fed. Cir. 2021), abrogated by Feliciano,

605 U.S. at 43-56, that differential pay is contingent on “directly . . . serv[ing] in

a contingency operation.” Accordingly, to be entitled to differential pay under

5 U.S.C. § 5538(a), an appellant is only required to show that his active -duty

service occurred at the same time as a national emergency.

¶8 In light of the Feliciano decision, which was not available to the

administrative judge when he issued the initial decision, we reverse the

administrative judge’s finding that the appellant was not entitled to differential

pay under 5 U.S.C. § 5538(a). Like Mr. Feliciano, the appellant was ordered to

active duty under 10 U.S.C. § 12301(d). Feliciano, 605 U.S. at 43; IAF, Tab 6

at 7. The appellant’s relevant period of service was from August 25 until

October 21, 2020. IAF, Tab 6 at 7. This service occurred at the same time as a

national emergency declared by the President. Continuation of the National

Emergency with Respect to Certain Terrorist Attacks, 85 Fed. Reg. 56467

(Sept. 10, 2020); Continuation of the National Emergency with Respect to Certain

Terrorist Attacks, 84 Fed. Reg. 48545 (Sept. 12, 2019). Because the appellant’s

active duty under 10 U.S.C. § 12301(d) to attend Officer Training School

temporally coincided with a declared national emergency, he is entitled to

differential pay pursuant to 5 U.S.C. § 5538(a). It is undisputed that the agency

did not provide the appellant with differential pay, and thus he is entitled to

corrective action under USERRA.

The administrative judge correctly found that the appellant was not entitled to

22 days of military leave under 5 U.S.C. § 6323(b).

¶9 Under 5 U.S.C. § 6323(b)(1), (2)(B), in relevant part, when an

employee who is also a reservist “performs full-time military service as a result of

a call or order to active duty in support of a contingency operation as defined in

[10 U.S.C. § 101(a)(13)],” he is entitled, “during and because of such service,” to

up to an additional 22 paid workdays of leave per calendar year. In this context,

“support of” a contingency operation includes both direct and indirect support,

such as backfilling for another individual who is deployed to active duty to

directly support a contingency operation. O’Farrell v. Department of Defense,

882 F.3d 1080, 1084-88 (Fed. Cir. 2018); see Feliciano, 605 U.S. at 46

(describing 5 U.S.C. § 6323(b)(2)(B) as requiring a “substantive connection” to a

particular purpose because the phrase “during and because of” describes leave

“both contemporaneous with and related to a reservist’s active-duty service”).

¶10 We agree with the administrative judge that the appellant’s service

was not directly or indirectly “in support” of a national emergency. ID at 11-12.

On review, the appellant reasserts that attending Officer Training provides

indirect support to a national emergency but does not point to any error in the

administrative judge’s reasoning. PFR File, Tab 1 at 13-14; IAF, Tab 27 at 5-6.

As the administrative judge observed, to extrapolate that such training contributes

to overall military readiness “is a bridge too far.” ID at 12. Contrary to the

accepted norms of statutory construction, the appellant’s argument would render

meaningless the requirement in 5 U.S.C. § 6323(b)(2)(B) that qualifying service

be “in support of” a contingency operation under 10 U.S.C. § 101(a)(13). See

Moulton v. Office of Personnel Management, 2023 MSPB 26, ¶ 13 (explaining

that the provisions of a statute should be read in harmony, leaving no provision

inoperative, superfluous, redundant, or contradictory).

¶11 For the first time on review, the appellant presents evidence that, in

August 2021, he was awarded the Global War on Terrorism Service Medal, which

he argues supports his claim that he indirectly supported the Global War on

Terrorism. PFR File, Tab 1 at 15, Tab 4 at 21; IAF, Tab 20 at 30. He admits that

he raised, and then withdrew, this argument below. PFR File, Tab 1 at 16;

I-4 AF, Tab 6 at 9-10, 12, Tab 8 at 4.

¶12 The Board generally will not consider an argument raised for the first

time in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence. Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). Even if we were to

consider the appellant’s argument “new,” it would not provide a basis for

reversing the initial decision because it is not of sufficient weight to warrant an

outcome different from that of the initial decision. Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980). The appellant supports his argument

with his own sworn statement that, in August 2021, he received the Global War

on Terrorism Service Medal because of his graduation from Officer Training.

PFR File, Tab 4 at 19. He also provides a June 2022 DD Form 214, Certificate of

Release or Discharge from Active Duty, which reflects that he is in receipt of the

Medal. Id. at 24. The form indicates that the appellant received the Medal but

does not identify on what period of service it is based. Id.

¶13 The appellant states in his declaration that he received the Medal for

his Officer Training graduation, and in turn relies on a printout from an Air Force

portal, on which he asserted that it was his “understanding that

graduation . . . entitled [him] to the . . . Medal.” Id. at 20-21. He does not

provide an explanation from the Air Force as to why he received the Medal or

explain why he believes he received the Medal as a result of attending Officer

Training.

¶14 Further, the appellant’s statement is contradicted by a printout he

provides on review from a U.S. Air Force website. The printout reflects that

receipt of the Medal requires that the service member be “assigned, attached or

mobilized to a unit participating in or serving in support of designated

operations,” which are identified as Airport Security operations, Operation Noble

Eagle, Operation Enduring Freedom, and Operation Iraqi Freedom. Id. at 26.

The appellant does not allege that his Officer Training was connected to one of

these operations. Nor does he explain how his Officer Training was consistent

with examples of the type of support identified on the printout, such as

“maintaining/loading weapons systems for combat missions, securing installations

against terrorism, augmenting command posts or crisis action teams, and

processing personnel for deployment in support of the Global War on Terrorism.”

Id. A Department of Defense Manual (DoDM) does, however, provide guidance

on this matter. According to the DoDM, the Global War on Terrorism Support

Medal’s award criteria requires service on active duty for 30 consecutive days or

60 non-consecutive days and does not include initial accession training. DoDM

1348.33, Manual of Military Decorations and Awards: DOD Service

Awards – Campaign, Expeditionary, and Service Medals, vol. 2, ¶ 4.7c. (Dec. 21,

2016). On September 11, 2022, the award criteria changed to a more stringent

requirement—that the servicemember serve in a designated contingent operation.

Id. Ultimately, because the appellant’s claim is supported only by his own

conclusory statement on an Air Force portal, and in fact is contradicted by the

other evidence he provided on review, we accord his statement, although sworn,

little weight. See Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981)

(identifying factors affecting the weight to be accorded to hearsay evidence,

including the consistency of the declarant’s accounts with other information in

the case, internal consistency, and their consistency with each other).

Accordingly, we agree with the administrative judge that the appellant has not

proven that he is entitled to differential pay. 1

On review, the appellant argues that the administrative judge incorrectly found in the

initial decision that military leave under 5 U.S.C. § 6323(b) is not additional leave and

instead merely entitles the appellant to use leave to which he is otherwise entitled,

including accrued annual leave and compensatory time. ID at 13 ; PFR File, Tab 1

at 14-15. The appellant also disagrees with the administrative judge’s finding that he

The administrative judge properly found that the appellant was not entitled to

5 days of excused absence upon his return to duty pursuant to a November 14,

2003 memorandum issued by then-President Bush.

¶15 On review, the appellant again requests that the Board order the

agency to provide him with 5 days of excused absence based on his 59 days in

active duty pursuant to a November 14, 2003 memorandum by then-President

Bush. PFR File, Tab 1 at 16. The administrative judge found that the appellant is

not entitled to this benefit. ID at 14-16. We agree with the administrative judge.

¶16 The memorandum provides that civil servants who return to duty

after being “called to active duty in the continuing Global War on Terrorism” be

granted 5 days of “uncharged leave,” “consistent with the provisions of Federal

law.” Memorandum on Return of Activated Military Members to Federal Civilian

Employment, 2 Pub. Papers 1543 (Nov. 14, 2003). The Office of Personnel

Management (OPM) provides guidance that employees serving “in support of” the

Global War on Terrorism are entitled to these 5 days of excused absence “to aid

in their readjustment to civilian life.” See Fact Sheet: 5 Days of Excused

Absence for Employees Returning from Active Military Duty,

https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-

sheets/5-days-of-excused-absence-for-employees-returning-from-active-military-

duty/ (last visited Jan. 20, 2026). The Global War on Terrorism, which OPM

identifies by its new name as Overseas Contingency Operations (OCO), includes

Operation Noble Eagle, Operation Enduring Freedom, Operation Iraqi Freedom,

Operation New Dawn, and any other operations “deemed to be part of the OCO.”

Id.

was excepted from the definition of “employee” under 5 U.S.C. § 2105, as necessary to

qualify for leave under 5 U.S.C. § 6323(b), because he was serving “on active duty for

training” during the service period at issue. ID at 6, 10; PFR File, Tab 1 at 8-9.

Because we agree with the administrative judge that the appellant is not entitled to

leave under 5 U.S.C. § 6323(b) due to the nature of his service, we do not reach these

alternative bases on which the administrative judge denied corrective action.

¶17 We agree with the administrative judge that the appellant has not met

his burden to prove that he is entitled to this benefit. ID at 15-16. Although the

appellant was in training for 59 days from August 25 through October 21, 2020,

he did not serve in an identified operation and does not claim that his training was

deemed to be part of the Global War on Terrorism. ID at 16. Also, as we have

already discussed above, the appellant has not shown that his service was “in

support of” the Global War on Terrorism. Finally, the appellant has not alleged

that he engaged in the type of service that would require readjustment to civilian

life. Rather, the appellant was in training for his entire service.

¶18 Accordingly, we reverse the administrative judge’s initial decision as

to his finding that the appellant was not entitled to differential pay pursuant to

5 U.S.C. § 5538(a) and affirm the remainder of the initial decision.

ORDER

¶19 We ORDER the agency to pay the appellant the appropriate amount

of differential pay pursuant to 5 U.S.C. § 5538(a) for the period from August 25

through October 21, 2020. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 60 days after the date of this decision.

¶20 We also ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. We ORDER the appellant to

provide all necessary information the agency requests to help it carry out the

Board’s Order. The appellant, if not notified, should ask the agency about its

progress. See 5 C.F.R. § 1201.181(b).

¶21 No later than 30 days after the agency tells the appellant it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes the agency has not

fully carried out the Board’s Order and should include the dates and results of any

communications with the agency. See 5 C.F.R. § 1201.182(a).

¶22 For agencies whose payroll is administered by either the National

Finance Center of the Department of Agriculture (NFC) or the Defense Finance

and Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency must timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶23 This is the final decision of the Merit Systems Protection Board in

this appeal. Title 5 of the Code of Federal Regulations, section 1201.113

(5 C.F.R. § 1201.113).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the