Entitlement to Reservist Differential Pay Under Pre-Amendment Version of 5 U.S.C. § 5538

Entitlement to Reservist Differential Pay Under

Pre-Amendment Version of 5 U.S.C. § 5538

Under the pre-amendment version of 5 U.S.C. § 5538, covered employees may receive

reservist differential pay not only for pay periods that occur when they are serving on

active duty, but also for those pay periods that fall within the additional period in

which they have re-employment rights following the completion of that duty.

June 28, 2010

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

OFFICE OF PERSONNEL MANAGEMENT

You have asked for our views on how to interpret the pre-amendment

version of 5 U.S.C. § 5538, a law that provides a monetary payment to

qualifying federal employees who are called to active duty from the

military reserves. 1 Under section 5538, reservists who take a leave of

absence from federal civilian employment “in order to perform active

duty in the uniformed services pursuant to a call or order to active duty”

under certain statutory authorities are entitled to additional compensation

for pay periods in which their military pay would be less than their basic

civilian pay. Section 5538 thus ensures that such reservists do not experi-

ence a pay cut because of a call to active duty. You have asked whether

the pay periods during which eligible federal employees are entitled to

receive this additional compensation, commonly known as “reservist

differential pay,” include only those that occur within the period of active

duty, or whether they also include those pay periods that fall within the

additional period of time, specified by 38 U.S.C. § 4312, in which a

1 In addition to the views we received from the Office of Personnel Management, we

also solicited and received the views of the Department of Defense (“DoD”). See Mem-

orandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel,

from Elaine D. Kaplan, General Counsel, Office of Personnel Management (“OPM”),

Re: Request for OLC Opinion Regarding Entitlement to Payment of the Reservist Differ-

ential Under 5 U.S.C. § 5538 During Periods of Time After Active Duty Ends, and

During Which an Employee Is Entitled to Reemployment Rights Under the Uniformed

Services Employment and Reemployment Rights Act (Nov. 19, 2009); E-mail for Jeannie

Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from James Smyser,

Associate Deputy General Counsel, Department of Defense, Re: FW: Opinion Request

from OPM on interpretation of 5 USC 5538 (Reservist Differential Pay) (Feb. 4, 2010)

(“DoD E-mail”).

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34 Op. O.L.C. 193 (2010)

returning reservist is generally entitled to report for re-employment at his

or her civilian workplace. We conclude that under the pre-amendment

statute, covered employees may receive reservist differential pay not

only for pay periods that occur when they are serving on active duty,

but also for those pay periods that fall within the additional period in

which they have re-employment rights following the completion of that

duty. 5 U.S.C. § 5538(b)(2)(B). 2

I.

First enacted on March 11, 2009 (see Omnibus Appropriations Act,

2009, Pub. L. No. 111-8, div. D, § 751(a), 123 Stat. 524, 693), 5 U.S.C.

§ 5538 contains three provisions relevant to your question. The first,

subsection (a), describes the requirements a federal employee must meet

to be eligible for reservist differential pay and sets forth the method for

calculating the amount:

(a) 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 103 shall

be entitled, while serving on active duty, to receive, for each pay pe-

riod described in subsection (b), an amount equal to the amount by

which—

2 In December 2009, Congress amended section 5538 in a manner that OPM and DoD

believe makes clear “that the reservist differential is not payable for periods following

completion of active duty.” OPM, Reservist Differential, Guidance, Qualifying Periods,

http://www.opm.gov/reservist/guidance/qualifying.asp (last visited ca. 2010); see also

Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C, § 745(a), 123 Stat.

3034, 3219 (2009). We express no opinion on that interpretation, although we note that

section 5538 gives OPM, “in consultation with [the] Secretary of Defense,” the discretion

to “prescribe any regulations necessary to carry out the preceding provisions of this

section.” 5 U.S.C. § 5538(d).

3 As an OPM guidance document explains, section 101(a)(13)(B) references “specific

provisions in title 10 of the United States Code” which function as “authorities for certain

military contingency operations for which a reservist (i.e., member of a Reserve compo-

nent or the National Guard) may be called or ordered to active duty.” OPM, Reservist

Differential, Guidance, Appendix D, http://www.opm.gov/reservist/guidance/appendixd.

asp (last visited ca. 2010).

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Entitlement to Reservist Differential Pay

(1) the amount of basic pay which would otherwise have been

payable to such employee for such pay period if such employee’s

civilian employment with the Government had not been interrupt-

ed by that service, exceeds (if at all)

(2) the amount of pay and allowances which (as determined un-

der subsection (d))—

(A) is payable to such employee for that service; and

(B) is allocable to such pay period.

5 U.S.C. § 5538(a) (emphasis added).

Second, subsection (b)(1) describes the “pay period[s]” referenced in

subsection (a) during which an eligible employee is entitled to receive

reservist differential payments:

(b) (1) Amounts under this section shall be payable with respect to

each pay period (which would otherwise apply if the employee’s ci-

vilian employment had not been interrupted)—

(A) during which such employee is entitled to reemployment

rights under chapter 43 of title 38 with respect to the position

from which such employee is absent (as referred to in subsec-

tion (a)); and

(B) for which such employee does not otherwise receive

basic pay (including by taking any annual, military, or other

paid leave) to which such employee is entitled by virtue of such

employee’s civilian employment with the Government.

5 U.S.C. § 5538(b)(1).

Third, as originally enacted, subsection (b) also contained an additional

provision, paragraph (2), that provided a further gloss on the period dur-

ing which an employee would be “entitled to reemployment rights under

chapter 43 of title 38”:

(2) For purposes of this section, the period during which an em-

ployee is entitled to reemployment rights under chapter 43 of title

38—

195

34 Op. O.L.C. 193 (2010)

(A) shall be determined disregarding the provisions of section

4312(d) of title 38; 4 and

(B) shall include any period of time specified in section 4312(e)

of title 38 within which an employee may report or apply for em-

ployment or reemployment following completion of service on ac-

tive duty to which called or ordered as described in subsection

(a).

5 U.S.C. § 5538(b)(2) (emphasis added).

Section 5538(b)’s references to “chapter 43 of title 38” are to the Uni-

formed Services Employment and Reemployment Rights Act of 1994

(“USERRA”), 38 U.S.C. §§ 4301–4335 (2006 & West Supp. 2010). 5

Among other things, USERRA broadly requires an employer to promptly

reemploy a returning reservist to “the position for which qualified that he

or she would have attained if continuously employed,” or, in the case of

active service periods lasting 91 days or more, “a position of like seniori-

ty, status, and pay.” 5 C.F.R. § 353.207 (2009); see 38 U.S.C. § 4312. To

take advantage of this entitlement, an employee must timely report for

work or submit an application for reemployment “upon the completion of

a period of service in the uniformed services” and by a statutorily pre-

scribed deadline. 38 U.S.C. § 4312(e)(1). Persons “whose period of

service in the uniformed services was less than 31 days” must report to

their employer on the first work day following completion of their ser-

vice, a period allowing for safe travel back to their residence, and an

4 Section 4312(d) excuses employers from their reemployment obligations when they

are able to demonstrate: (1) “the employer’s circumstances have so changed as to make

such reemployment impossible or unreasonable”; (2) “such employment would impose

an undue hardship on the employer”; or (3) the reservist was employed for “a brief,

nonrecurrent period” prior to active service and “there is no reasonable expectation that

such employment will continue indefinitely or for a significant period.” 38 U.S.C.

§ 4312(d)(1).

5 USERRA’s general purposes are: “(1) to encourage noncareer service in the uni-

formed services by eliminating or minimizing the disadvantages to civilian careers and

employment which can result from such service; (2) to minimize the disruption to the

lives of persons performing service in the uniformed services as well as to their employ-

ers, their fellow employees, and their communities, by providing for the prompt

reemployment of such persons upon their completion of such service; and (3) to prohibit

discrimination against persons because of their service in the uniformed services.” 38

U.S.C. § 4301(a) (2006).

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Entitlement to Reservist Differential Pay

additional “eight hours.” Id. § 4312(e)(1)(A)(i). Those who serve for

“more than 30 days but less than 181 days” must submit an “application

for reemployment . . . not later than 14 days after the completion” of

their service. Id. § 4312(e)(1)(C). And those who serve for “more than

180 days” must submit an application for reemployment “not later than

90 days after the completion” of their service. Id. § 4312(e)(1)(D). 6

II.

Your question regarding the duration of a federal employee’s entitle-

ment to “reservist differential pay” arises because two provisions of the

original statutory text could be read to give conflicting indications as to

how long that entitlement was intended to last. On the one hand, section

5538(a) declared that eligible employees are “entitled, while serving on

active duty, to receive, for each pay period described in subsection (b),”

reservist differential pay—a provision that, at least in isolation, seemed to

indicate that employees would be entitled to receive such pay only “while

serving on active duty.” 5 U.S.C. § 5538(a) (emphasis added). On the

other hand, section 5538(b)—which described the pay periods during

which an employee is entitled to receive reservist differential pay—

provided that the “period . . . during which such employee is entitled to”

differential pay “shall include any period of time . . . within which an

employee may report or apply for employment or reemployment following

completion of service on active duty.” Id. § 5538(b)(1)(A) & (2)(B) (em-

phasis added). In contrast to section 5538(a), section 5538(b)(2)(B) ap-

peared to contemplate that an eligible employee could receive differential

pay during periods that “follow[] completion of service on active duty.”

In the time since we received your opinion request, Congress has

amended section 5538 by, in effect, deleting subsection (b)(2). See

Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C,

6 These deadlines are extended in the case of “[a] person who is hospitalized for, or

convalescing from, an illness or injury incurred in, or aggravated during, the performance

of service in the uniformed services.” 38 U.S.C. § 4312(e)(2)(A). Such a person may

report or apply for reemployment after recovering from the illness or injury. This recov-

ery period is limited to two years, except where reporting for reemployment within that

period is made impossible or unreasonable by circumstances beyond the person’s control.

Id.

197

34 Op. O.L.C. 193 (2010)

§ 745(a), 123 Stat. 3034, 3219 (2009) (deleting the original subsection

(b) and inserting in its place a new subsection (b) that contains all of the

language of former subsection (b)(1) and none of the language of former

subsection (b)(2)). The conference report termed this change a “tech-

nical correction” to section 5538, but did not otherwise discuss the

intended purpose or import of this amendment. See H.R. Rep. No. 111-

366, at 946 (2009) (Conf. Rep.). As we understand it, OPM and DoD

agree that this amendment “clarif[ies] that the reservist differential is

not payable for periods following completion of active duty.” OPM,

Reservist Differential, Guidance, Qualifying Periods, http://www.opm.

gov/reservist/guidance/qualifying.asp (last visited ca. 2010). However,

your opinion request remains outstanding, in light of continued disa-

greement regarding the proper interpretation of the original statute, as it

applies to those who served on active duty and were entitled to re-

employment rights during the pre-amendment period.

A.

The principle that “[a] statute should be construed so that effect is giv-

en to all its provisions so that no part will be inoperative or superfluous,

void or insignificant” is “one of the most basic interpretive canons.”

Corley v. United States, 129 S. Ct. 1558, 1566 (2009). See also, e.g.,

Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 489 n.13 (2004)

(“It is . . . a cardinal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous, void, or insignificant.”)

(quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation

marks omitted)); Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879) (“a

statute ought, upon the whole, to be so construed that, if it can be prevent-

ed, no clause, sentence, or word shall be superfluous, void, or insignifi-

cant”); Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (quoting Reiter

v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“we are obliged to give

effect, if possible, to every word Congress used”). When presented with

provisions that appear to be in conflict, we must therefore endeavor to

reconcile those provisions by adopting a construction that refrains from

treating any provision as void or meaningless, in accordance with the

maxim that “[t]he cardinal principle of statutory construction is to save

and not to destroy.” United States v. Menasche, 348 U.S. 528, 538–39

198

Entitlement to Reservist Differential Pay

(1955); see also Moskal v. United States, 498 U.S. 103, 109 (1990) (re-

jecting proposed construction that would fail to give meaning to certain

statutory language because such a reading would “violate[] the established

principle that a court should give effect, if possible, to every clause and

word of a statute”) (quotation marks omitted); Hoffman, 101 U.S. at 116

(“every part of a statute must be construed in connection with the whole,

so as to make all the parts harmonize, if possible, and give meaning to

each”); 2A Norman J. Singer & J.D. Shamble Singer, Sutherland Statutes

and Statutory Construction § 46.6 (7th ed. 2007) (“Singer”) (“No clause,

sentence or word shall be construed as superfluous, void or insignificant if

a construction can be found which will give force to and preserve all the

words of the statute.”).

It is clearly possible to read subsection (a)’s “while serving on active

duty” provision, at least in isolation, to permit employees to receive

reservist differential pay only for pay periods that occur within the period

of active duty. However, adopting this reading of subsection (a) would

deprive a substantial part of subsection (b) of meaning, since the latter

provision states that such pay “shall by payable with respect to each pay

period . . . during which such employee is entitled to re-employment

rights under chapter 43 of title 38” (5 U.S.C. § 5538(b)(1)), a category

that is then expressly defined to include the time “following completion of

service on active duty” (5 U.S.C. § 5538(b)(2)(B) (emphasis added)).

Reading subsection (a) as controlling the meaning of section 5538 in this

way thus would effectively read subsection (b)(2)(B) out of the statute

and produce a reading that contradicts its plain language—a result that

would be difficult to square with the statutory construction principles we

have just described. See 2A Singer § 46:6 (“A statute should be construed

so that effect is given to all its provisions, so that no part will be inopera-

tive or superfluous, void or insignificant, and so that one section will not

destroy another unless the provision is the result of obvious mistake or

error.”); Menasche, 348 U.S. at 538–39 (“It is our duty to give effect, if

possible, to every clause and word of a statute, rather than to emasculate

an entire section”) (quotation marks omitted). Reading subsection (a) in

this manner would also introduce an internal tension in subsection (a)

itself: subsection (a) states that eligible employees “shall be entitled” to

receive reservist differential pay “for each pay period described in subsec-

tion (b),” but on this interpretation of section 5538, such employees in

199

34 Op. O.L.C. 193 (2010)

fact would not be entitled to receive differential pay for each pay period

described in subsection (b)—they would not receive such pay for the

periods “following completion of service on active duty” described in

subsection (b)(2)(B).

In view of these difficulties, we believe subsection (a) should not be

read as restricting reservist differential pay to those periods during which

a reservist is actually serving on active duty if another plausible reading

of the statute is available. And here, we think such a reading is available:

it is also possible to read subsection (a)’s phrase “entitled, while serving

on active duty, to receive” reservist differential pay to mean that an em-

ployee’s entitlement to receive such pay accrues and vests during his or

her service on active duty. On this reading, the employee accrues the

“entitle[ment]” to receive reservist differential pay during “each pay

period described in subsection (b)” by virtue of service on active duty.

However, the duration of the entitlement that would thereby vest, on this

reading, would not be limited solely to the term of active service, but

would also encompass “each pay period described in subsection (b),”

including those periods that “follow[] completion of service on active

duty.” This reading harmonizes subsection (a) and subsection (b)(2)(B),

avoiding the apparent conflict that would arise from the narrower reading

of subsection (a) discussed above.

In addition to avoiding any apparent conflict with subsection (b), this

reading gives distinct meaning to each of the references in subsection (a)

to “active duty.” The first part of subsection (a) states that the entitlement

to reservist differential pay applies to employees who are absent from

federal employment “in order to perform active duty in the uniformed

services pursuant to a call or order to active duty” under certain specified

statutory provisions. This language makes clear that an employee qualifies

for reservist differential pay only if he or she is absent for the purpose of

serving on active duty, as opposed to other forms of service, and only

if that service on active duty is pursuant to a call or order under one of the

referenced statutory provisions. 7 Subsection (a) then refers to “active

7 Reemployment rights under chapter 43 apply to persons “whose absence from a posi-

tion of employment is necessitated by reason of service in the uniformed services.” 38

U.S.C. § 4312(a). The term “service in the uniformed services,” in turn, is defined as “the

performance of duty on a voluntary or involuntary basis in a uniformed service under

200

Entitlement to Reservist Differential Pay

duty” a second time, in the provision at issue here, stating that an eligible

employee “shall be entitled, while serving on active duty, to receive”

reservist differential pay. On the reading proposed here, this second

reference to “active duty” clarifies that the right to reservist pay accrues

and vests only if the employee actually performs active duty.

It is true that the word “while” suggests a bounded duration, circum-

scribed by the time period or event to which it refers, rather than an

open-ended period initiated by that time period or event. See Webster’s

Third New International Dictionary 2604 (1993) (defining “while,” when

used as a conjunction in similar contexts, to mean “during the time that,”

“until the end of the time that,” or “during which time”). And on our

reading, the period in which an employee would receive reservist differ-

ential pay would not be confined to the bounded duration of the employ-

ee’s period of active service. However, our reading is nonetheless con-

sistent with understanding the word “while” to connote a circumscribed

duration, because the employee’s receipt of reservist differential pay

would be defined, in two distinct but related respects, by the period of

time that the employee spends in active service. First, during each day of

active duty—i.e., “while serving on active duty”—an eligible employee

is entitled to reservist differential pay that corresponds to that day. Sec-

ond, and simultaneously, each day of active duty counts towards the total

length of service that determines, in turn, the period following the com-

pletion of active duty during which the employee is entitled to reemploy-

ment rights and, consequently, reservist differential pay. See 5 U.S.C.

§ 5538(b)(2)(B).

We therefore do not believe that section 5538 presents the rare circum-

stance in which it is necessary to resort to the “elimination of words” in

order to “give [an] act meaning, effect or intelligibility” or “avoid incon-

sistencies and to make the provisions of the act harmonize.” 2A Singer

§ 47:37. As we have explained above, consistent with the view expressed

by OPM, we believe there is a reading of the statute that is permissible

and gives meaning to all its provisions. As such, we do not face a circum-

competent authority and includes active duty, active duty for training, initial active duty

for training, inactive duty training, full-time National Guard duty, a period for which a

person is absent . . . for the purpose of an examination to determine the fitness of the

person to perform any such duty, and a period for which a person is absent . . . for the

purpose of performing funeral honors duty.” 38 U.S.C. § 4303(13).

201

34 Op. O.L.C. 193 (2010)

stance comparable to that at issue in Chickasaw Nation v. United States,

534 U.S. 84 (2001), where the Supreme Court adopted a construction of a

federal statute that concededly “deprive[d] the words ‘chapter 35’ of any

effect,” id. at 93. The unusual circumstances of that case compelled the

Court to conclude, after applying ordinary tools of statutory construction,

that “no other reasonable reading of the statute” was available. Id. at 89.

Moreover, the language the Court deprived of meaning in Chicksaw

Nation appeared in an illustrative parenthetical. See id. at 90 (emphasizing

that the words “chapter 35” appeared in a parenthetical phrase and that

“[t]he use of parentheses emphasizes the fact that that which is within is

meant simply to be illustrative, hence redundant”); id. at 89–90 (finding

that “the language outside the parenthetical is unambiguous,” and “too

strong to bend as the Tribes would wish—i.e., so that it gives the chapter

35 reference independent operative effect,” without “seriously rewriting

the language of the rest of the statute” or resorting to a construction “far

too convoluted to believe Congress intended it”); id. at 91 (noting that the

legislative history of the provision at issue “on balance supports our

conclusion”). Here, in contrast, the language that would be disregarded if

we did not adopt our reading is not a single example in an arguably illus-

trative parenthetical, but rather an entire subsection—one that employs

mandatory language and thus suggests on its own terms that it was intend-

ed to have substantive meaning. See 5 U.S.C. § 5538(b)(2) (“the period

during which an employee is entitled to reemployment rights under chap-

ter 43 of title 38 . . . (B) shall include any period of time specified in

section 4312(e) of title 38”). There is nothing in the text to indicate that

Congress intended subsection (b)(2)(B) to be merely illustrative, or oth-

erwise ineffectual. We therefore do not believe that the provision at issue

here is one that may be treated as void, in contravention of the ordinary

rule that no portion of a statute should be treated as “inoperative

or superfluous, void or insignificant.” Corley, 129 S. Ct. at 1566.

We also do not think that the inclusion of subsection (b)(2)(B) can be

viewed as “the result of obvious mistake or error.” See 2A Singer § 46:6.

So far as we have been able to discern, all but one of the precursors to

the bill originally enacted as section 5538, dating back as far as 2001,

included subsection (b)(2)(B), cast in similar or even identical terms.

See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,

107th Cong. (introduced Dec. 13, 2001). The only exception of which we

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Entitlement to Reservist Differential Pay

are aware was H.R. 4247, introduced in 2007. It too would have provided

for reservist differential pay following the completion of active service,

even though, unlike subsection (b)(2)(B), it did not expressly reference

USERRA’s reemployment rights provisions to define the scope of that

coverage. 8 Moreover, we know of no precedent for treating such a lengthy

statutory phrase as the product of mere inadvertence or error. We would

be particularly reluctant to accord such treatment to subsection (b)(2)(B)

because the text of section 5538 suggests that the drafters viewed subsec-

tions (a) and (b)—including subsection (b)(2)(B)—as parts of an integrat-

ed whole that defined the benefit that Congress intended to confer. Sub-

section (a) expressly cross-references subsection (b) in describing the

period for which employees will be entitled to receive reservist differen-

tial pay; subsection (b)(2)(B) clarifies that the period “during which such

employee is entitled to reemployment rights under chapter 43 of title 38,”

as that phrase is used in subsection (b)(1)(A), “shall include any period of

time” “within which an employee may report or apply for employment or

reemployment rights following completion of service on active duty”; and

subsection (b)(2)(B) expressly refers back to subsection (a)’s “call or

order to active duty” requirement. In view of these circumstances, we are

not persuaded that the inclusion of subsection (b)(2)(B) could be reasona-

bly viewed as the result of inadvertence. The better course, we think, is to

accord meaning to that subsection, in keeping with its plain terms.

We are aware of the argument that the statute should not be so con-

strued because it is doubtful that Congress would have intended that

“reservist differential pay would continue during periods in which the

[covered employee] is not serving on active duty and not receiving mili-

tary pay,” particularly given that subsection (a) of the statute defines the

amount of the reservist differential as an “amount equal to the amount by

which [a covered employee’s] basic pay . . . exceeds [the covered em-

ployee’s] military pay and allowances.” DoD E-mail (emphasis removed)

(citing 5 U.S.C. § 5538(a)). We acknowledge that the statute does not

8 See H.R. 4247, 110th Cong. § 4(b)(1) (introduced Nov. 15, 2007) (providing for

reservist differential pay “(A) while the employee serves on active duty for a period of

more than 30 days; (B) while the employee is hospitalized for, or convalescing from, an

illness or injury incurred in, or aggravated during, the performance of such active duty;

or (C) during the 14-day period beginning at the end of such active duty or the end of the

period referred to in subparagraph (B)”).

203

34 Op. O.L.C. 193 (2010)

expressly contemplate that the amount of military pay and allowances

allocable to a particular pay period might be zero: subsection (a) refers to

“the amount of pay and allowances” allocable to a given pay period, not,

for example, “the amount, if any, of pay and allowances” allocable to a

given period. See 5 U.S.C. § 5538(a)(2); cf. id. § 5538(a)(1) (referring to

the amount, “if at all,” by which basic pay exceeds military pay for a

given pay period). But reservist differential pay may still be calculated

under subsection (a) even if military pay and allowances are zero. And

this argument with respect to subsection (a) does not indicate any alter-

nate way of giving meaning to subsection (b)(2)(B)—the difficulty that,

as discussed above, necessitates our approach.

The interpretation set forth above, moreover, is consistent with the

overall purpose of the statutory scheme—to prevent federal employees

from suffering a reduction in pay and thereby incurring a financial bur-

den in the performance of active duty pursuant to one of the referenced

statutory provisions. See 5 U.S.C. § 5538(a); cf. 149 Cong. Rec. 5764

(2003) (statement of Sen. Durbin, introducing a prior version of section

5538) (“I would like to discuss the financial burden faced by many of the

men and women who serve in the military Reserves or National Guard

and who are forced to take unpaid leave from their jobs when called to

active duty . . . . It is unfair to ask the men and women who have volun-

teered to serve their country . . . to also face a financial strain on their

families.”). Section 5538’s reference to USERRA to determine the pay

periods during which reservist pay is available is consistent with this

objective. USERRA operates to “minimize the disruption to the lives of

persons performing service in the uniformed services as well as to their

employers.” 38 U.S.C. § 4301(a) (2006). As the House report accompa-

nying USERRA states, Congress included a reemployment period after

uniformed service because “[o]ne of the basic purposes of the reemploy-

ment statute is to maintain the servicemember’s civilian job as an ‘un-

burned bridge.’” H.R. Rep. No. 103-65, at 26 (1993). The period ensures

that servicemembers are “not pressed for a decision immediately on

[their] discharge, but ha[ve] the opportunity to make plans for the future

and readjust [themselves] to civilian life.” Id. (quoting Fishgold v. Sulli-

van Drydock & Repair Corp., 328 U.S. 275, 284 (1946)). Accordingly, it

is entirely consistent with Congress’s objective to mitigate the financial

burden of those called to active duty to provide, when the term of active

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duty ends, reservist differential pay during their period of statutory

readjustment to civilian life—a period during which they could otherwise

have remained gainfully employed at their original government job had

they not been ordered to active duty.

For the reasons discussed above, we think the better reading of section

5538, viewed as a whole, would permit eligible employees to receive

differential pay in accordance with the plain language of subsection

(b)(2)(B). That reading is also consistent with and gains support from

the interpretive canon that “provisions for benefits to members of the

Armed Services are to be construed in the beneficiaries’ favor.” King v.

St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991) (interpreting a provi-

sion of the Veterans’ Reemployment Rights Act, a USERRA precursor);

see also, e.g., Fishgold, 328 U.S. at 285 (“This legislation [the Selective

Training and Service Act of 1940] is to be liberally construed for the

benefit of those who left private life to serve their country in its hour of

great need.”).

B.

In our view, neither the pre-enactment nor post-enactment legislative

history of section 5538 offers much aid in interpreting the original text.

Beginning in about 2001, numerous measures were introduced in both

houses of Congress regarding reservist differential pay. Many of these

bills were phrased in terms very similar to the bill first enacted as section

5538. However, there were significant differences in certain bills. For

example, the earliest bills omitted the phrase “while serving on active

duty,” from subsection (a), thus providing simply that that eligible feder-

al employees would be “entitled to receive” a reservist differential “for

each pay period described in subsection (b)”—a subsection that, in each

case, included the language eventually enacted as subsection (b)(2)(B).

See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,

107th Cong. (introduced Dec. 13, 2001); H.R. 217, 108th Cong. (intro-

duced Jan. 7, 2003). If such a bill had been adopted by Congress, the

apparent tension in the pre-amendment text of subsections (a) and (b) of

section 5538 would not have been presented. That tension first emerged

in 2003. See S. 593, 108th Cong. (introduced Mar. 11, 2003). As origi-

nally introduced, S. 593 did not contain the phrase “while serving on

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34 Op. O.L.C. 193 (2010)

active duty” in subsection (a). That phrase was added in committee, in

the same place it appears in the first-enacted version of subsection (a).

See S. 593, 108th Cong. (reported out of Committee on Governmental

Affairs, Nov. 16, 2004). Notably, however, the conference report for the

amended S. 593 does not list the addition of the phrase “while serving on

active duty” as among the changes made to the bill, or discuss the intend-

ed interplay between subsections (a) and (b). See S. Rep. No. 108-409

(Nov. 16, 2004).

It appears that nearly every bill subsequently introduced regarding re-

servist differential pay incorporated both the phrase “while serving on

active duty” in subsection (a) and the phrase “following completion of

service on active duty” in subsection (b)(2)(B), just as did the bill that

ultimately became law. See, e.g., S. 989, 109th Cong. (introduced May

10, 2005); H.R. 5525, 109th Cong. (introduced June 6, 2006); Financial

Services and General Government Appropriations Act, 2009, S. 3260,

110th Cong. § 750(a) (introduced July 14, 2008). But see H.R. 4247,

110th Cong. § 4 (introduced Nov. 15, 2007) (omitting the “while serving

on active duty” language from subsection (a) and providing in subsection

(b) that reservist differential payments would be due “(A) while the

employee serves on active duty for a period of more than 30 days; (B)

while the employee is hospitalized for, or convalescing from, an illness

or injury incurred in, or aggravated during, the performance of such

active duty; or (C) during the 14-day period beginning at the end of such

active duty or the end of the period referred to in subparagraph (B).”).

We are not aware of any legislative history of any of these predecessor

bills that illuminates the question you have asked.

The legislative history of the original enactment similarly sheds little

light on congressional intent. Section 5538 was passed as part of an omni-

bus appropriations bill, and it appears that the only mention of this statute

in the legislative history is contained in an explanatory statement submit-

ted by Representative Obey. That statement says, simply, that “Section

751 provides for nonreduction in pay for Federal employees while serving

in the uniformed services or National Guard.” 155 Cong. Rec. H2704

(daily ed. Feb. 23, 2009).

There have been some significant post-enactment developments, al-

though we ultimately do not believe that Congress’s subsequent actions

in this area provide clear direction as to its purpose in enacting the origi-

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Entitlement to Reservist Differential Pay

nal statute. Cf. PBGC v. LTV Corp., 496 U.S. 633, 650 (1990) (caution-

ing that “subsequent legislative history is a hazardous basis for inferring

the intent of an earlier Congress”) (internal quotation marks omitted). As

we previously noted, Congress amended section 5538 in December 2009,

nine months after it was originally enacted. Both OPM and DoD have

expressed the view, on which we offer no opinion, that, as revised, sec-

tion 5538 no longer permits employees to receive reservist differential

pay during the period after active service during which they continue to

enjoy reemployment rights. See OPM, Reservist Differential, Guidance,

Qualifying Periods, http://www.opm.gov/reservist/guidance/qualifying.

asp (last visited ca. 2010). In some circumstances, when “a former statute

is amended, or a doubtful meaning clarified by subsequent legislation,

such amendment or subsequent legislation is strong evidence of the

legislative intent of the first statute.” 2A Singer § 49:11; see also Bailey

v. Clark, 88 U.S. 284, 288 (1874) (statutory amendment “was evidently

intended to remove any doubt previously existing as to the meaning of

the statute and declare its true construction and meaning”); Brown v.

Marquette Sav. & Loan Ass’n, 686 F.2d 608, 615 (7th Cir. 1982) (same);

Porter v. Comm’r of Internal Revenue, 856 F.2d 1205, 1209 (8th Cir.

1988) (“Amending legislation is perceived as clarifying, not changing, an

original statute’s intended meaning when a conflict of statutory interpre-

tation has arisen.”).

However, a statutory amendment does not invariably mean that the re-

vised statute and the original statute share a common meaning. To the

contrary, the Supreme Court has acknowledged a “canon of statutory

construction requiring a change in language to be read, if possible, to have

some effect,” Am. Nat’l Red Cross v. S.G., 505 U.S. 247, 263 (1992), and

has stated that “[t]he deliberate selection of language . . . differing from

that used in the earlier acts indicates that a change of law was intended.”

Brewster v. Gage, 280 U.S. 327, 337 (1930) (“There is no support for the

suggestion that subdivision (5) expressed the meaning, or was intended to

govern or affect the construction, of the earlier statutes.”); see also 2A

Singer § 49:11 (“A number of cases have held that where an act is amend-

ed or changed so that doubtful meaning is resolved such action constitutes

evidence that the previous statue meant the contrary.”). Accordingly, the

significance of a statutory revision—i.e., whether it clarifies the original

statute, or amends it—is appropriately determined by reference to the text

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34 Op. O.L.C. 193 (2010)

of the amendment and the context surrounding its adoption. See, e.g.,

S.G., 505 U.S. at 263–64 n.15 (relying on an absence of any indication in

the “Advisory Report, the document both Houses of Congress acknowl-

edged as the source for the amendment,” in rejecting the view that the

amendment was intended merely to clarify “the Red Cross’s clear pre-

amendment capacity to sue in federal court” rather than amend the law);

Barnes v. Cohen, 749 F.2d 1009, 1015–16 (3d Cir. 1984) (determining in

light of legislative history and a subsequent agency interpretation that

Congress’s purpose in amending an ambiguous statute was to provide

“‘clarification’ rather than a ‘change’”).

Here, there is no clear textual indication that the amendment was meant

to explain the meaning of the existing statute, rather than modify its

meaning—indeed, the statute itself is simply silent on that point. It is true

that the conference report described the amendment as a “technical cor-

rection” to the existing law, see H.R. Rep. No. 111-366, at 946 (2009)

(Conf. Rep.), and that, in some instances, the phrase “technical correc-

tion” is used to denote that Congress does not intend to make a substan-

tive change to an existing provision. See, e.g., N. Broward Hosp. Dist. v.

Shalala, 172 F.3d 90, 97 (D.C. Cir. 1999) (where statutory amendment

“was styled a ‘technical correction,’” “only clarification and not substan-

tive change was intended”); Wilhelm Pudenz, GmbH v. Littlefuse, Inc.,

177 F.3d 1204, 1211 (11th Cir. 1999) (“While the text of the corrections

does not explicitly tell us whether the additions and subtractions consti-

tute new law, their designation as technical corrections tends to indicate

that they were merely changes meant to clarify existing law.”); In re

Chateaugay Corp., 89 F.3d 942, 954 (2d Cir. 1996) (“By labelling the

1994 change a ‘technical correction,’ Congress recognized that the [prior]

amendment did not purport to change the substantive meaning of the

law.”). However, courts have also recognized that such labels are not

determinative of a statute’s meaning and that amendments described by

Congress as “technical” sometimes make significant changes in existing

law. See, e.g., Graham County Soil & Water Conserv. Dist. v. United

States ex rel. Wilson, 130 S. Ct. 1396, 1407–08 (2010) (“Significant

substantive changes—including the introduction of the term we are con-

struing in this case—were inserted without floor debate, as ‘technical’

amendments.”); United States v. R.L.C., 503 U.S. 291, 305 n.5 (1992)

(“The dissent takes us to task for reliance upon a ‘technical amendment.’

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Entitlement to Reservist Differential Pay

But a statute is a statute, whatever its label.”); Pub. Emps. Ret. Bd. v.

Shalala, 153 F.3d 1160, 1162 (10th Cir. 1998) (“Congress did not consid-

er the 1984 change to be dramatic, labeling the amendment a technical

correction. Nonetheless, that technical correction has become very im-

portant” because it made certain retirement plan contributions subject to

FICA taxes.); cf. H.R. 3658, H.R. 8321, and Related Bills, Congressional

Review of Administrative Rulemaking: Hearing Before the Subcomm. on

Admin. L. & Gov’t Rels. of the H. Committee on the Judiciary, 94th Cong.

376 (1975) (statement of Antonin Scalia, Assistant Attorney General,

Office of Legal Counsel) (“Presidents have sometimes vetoed ‘clarifying’

legislation on the grounds that, in their view, the amendment did not

clarify but vitiated the intent of the original act.”). Accordingly, the mere

fact that the committee labeled this change a “technical correction” does

not establish that it was intended to clarify the statute’s meaning, rather

than amend it.

III.

Taken as a whole, and giving effect to each of its provisions, the text

of section 5538 prior to its recent amendment is consistent with the view

that the entitlement to reservist differential pay extends to the period

following the completion of active duty service during which a returning

reservist may apply or report for reemployment at his or her civilian

workplace. Accordingly, we conclude that the pre-amendment version of

section 5538 entitled federal employees to receive reservist differential

pay during “any period of time specified in section 4312(e) of title 38

within which an employee may report or apply for employment or re-

employment following completion of service on active duty.” 5 U.S.C.

§ 5538(b)(2)(B).

JEANNIE S. RHEE

Deputy Assistant Attorney General

Office of Legal Counsel

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