Petition for Writ of Certiorari — Bryan Adams, Petitioner v. Department of Homeland Security

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRYAN ADAMS,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

2020-1649

Petition for review of the Merit Systems Protection

Board in No. DE-4324-19-0288-I-1.

Decided: July 2, 2021

BRIAN J. LAWLER, Pilot Law, P.C., San Diego, CA,

for petitioner.

MARGARET JANTZEN, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for respondent. Also

represented by CLAUDIA BURKE, JEFFREY B. CLARK,

ROBERT EDWARD KIRSCHMAN, JR.

(1a)

2a

Before MOORE, Chief Judge*, REYNA and HUGHES,

Circuit Judges.

HUGHES, Circuit Judge.

Bryan Adams appeals a final decision of the Merit

Systems Protection Board denying his request for

differential pay for three separate periods of military

service during which he performed duties in the Arizona

Air National Guard. Because none of Mr. Adams’s service

meets the statutory requirements for differential pay, we

affirm.

I

Mr. Adams worked as a human resources specialist

with U.S. Customs and Border Patrol (the agency) and

was also a member of the Arizona Air National Guard.

From April to September 2018, Mr. Adams performed

three periods of military service with the National Guard.

Between April 11 and July 13, Mr. Adams was activated

under 10 U.S.C. § 12301(d) to support a military personnel

appropriation (MPA) tour in support of Twelfth Air

Force. J.A. 199. Between July 18 and July 30, Mr. Adams

was ordered to attend annual training under 32 U.S.C.

§ 502(a) at Davis-Monthan Air Force Base. J.A. 196. And

between July 28 and September 30, Mr. Adams was again

activated under § 12301(d) to support an MPA tour in

support of legal assistance. J.A. 203. Both of Mr. Adams’s

§ 12301(d) orders state that they are “non-contingency”

activation orders. J.A. 199, 203.

Under 5 U.S.C. § 5538(a), federal employees who are

absent from civilian positions due to certain military

responsibilities may qualify to receive the difference

between their military pay and what they would have been

Chief Judge Kimberly A. Moore assumed the position of Chief

Judge on May 22, 2021.

*

3a

paid in their civilian employment during the time of their

absence.

This entitlement is referred to as “differential pay.”

Here, Mr. Adams requested differential pay from the

agency for each of his three periods of service. The agency

denied his request because it determined that Mr.

Adams’s military service did not qualify for differential

pay under the statute.

Mr. Adams appealed to the Merit Systems Protection

Board (Board) alleging that the decision to deny

differential pay violated the Uniformed Services

Employment and Reemployment Rights Act of 1994

(USERRA) (codified as amended at 38 U.S.C. §§ 4301–

4335). An Administrative Judge issued an initial decision

that the agency did not violate USERRA because Mr.

Adams provided no evidence that his military service was

a motivating factor in the denial of differential pay.

Adams v. Dep’t of Homeland Sec., No. DE-4324-19-0288I-1, 2020 WL 698369 (M.S.P.B. Feb. 4, 2020). Because Mr.

Adams did not file a petition for review with the Board,

this initial decision became final without further review.

Mr. Adams now appeals.

II

We affirm a Board decision unless it was “(1)

arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having

been followed; or (3) unsupported by substantial

evidence.” 5 U.S.C. § 7703(c); Briggs v. Merit Sys. Prot.

Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). “We review the

[Board]’s

legal

determinations,

including

its

interpretation of a statute, de novo.” O’Farrell v. Dep’t of

Def., 882 F.3d 1080, 1083 (Fed. Cir. 2018).

4a

Generally, an employee making a USERRA claim

under 38 U.S.C. § 4311 must show that (1) they were

denied a benefit of employment, and (2) the employee’s

military service was “a substantial or motivating factor”

in the denial of such a benefit. Sheehan v. Dep’t of the

Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (citation

omitted). However, when the benefit in question is only

available to members of the military, claimants do not

need to show that their military service was a substantial

or motivating factor. See Butterbaugh v. Dep’t of Just.,

336 F.3d 1332, 1336 (Fed. Cir. 2003) (“[W]e agree with the

Board that, in contrast to cases such as Sheehan . . . the

question in this case is not whether Petitioners’ military

status was a substantial or motivating factor in the

agency’s action, for agencies only grant military leave to

employees who are also military reservists.”); see also

Maiers v. Dep’t of Health & Hum. Servs., 524 F. App’x

618, 623 (Fed. Cir. 2013) (“In Butterbaugh, we determined

that claimants need not show that their military service

was a substantial motivating factor when the benefits at

issue were only available to those in military service.”).

Because differential pay is only available to members

of the military, we agree with Mr. Adams that the Board

erred in its legal analysis by requiring that he show that

his military service was a motivating factor in the agency’s

decision to deny differential pay. In order to establish a

USERRA violation, Mr. Adams was only required to show

that he was denied a benefit of employment. We therefore

consider whether Mr. Adams was entitled to differential

pay as a benefit of employment under the statutory

provisions.

III

5 U.S.C. § 5538(a) states:

An employee who is absent from a position of

employment with the Federal Government in

5a

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].

The provisions of law listed in 10 U.S.C.

§ 101(a)(13)(B) define what qualifies as a “contingency

operation.” Thus, for Mr. Adams to be entitled to

differential pay, he must have served pursuant to a call to

active duty that meets the statutory definition of

contingency operation. We conclude that none of Mr.

Adams’s service qualifies as an active duty contingency

operation.

A

We first consider Mr. Adams’s title 32 orders to

perform annual training and conclude that Mr. Adams is

not entitled to differential pay for this period of service

because training does not qualify as “active duty” as

required by 5 U.S.C. § 5538(a). Active duty is defined as

“full-time duty in the active military service of the United

States . . . [but] [s]uch term does not include full-time

National Guard duty.” 10 U.S.C. § 101(d)(1). As relevant

here, full-time National Guard duty is defined as:

[T]raining or other duty, other than inactive duty,

performed by a member of the . . . Air National

Guard of the United States in the member’s status

as a member of the National Guard of a State or

territory . . . under section . . . 502 . . . of title 32 for

which the member is entitled to pay from the

United States or for which the member has waived

pay from the United States.

Id. § 101(d)(5).

Mr. Adams was ordered to annual training under 32

U.S.C. § 502(a). Since training under § 502 of title 32 is

explicitly included in the definition of full-time National

6a

Guard duty, and since full-time National Guard duty is

explicitly excluded from the definition of active duty, Mr.

Adams was not called to active duty during the period of

service that he spent in training. Because only members

of the military who are called to active duty are entitled to

differential pay under 5 U.S.C. § 5538(a), Mr. Adams is

not entitled to differential pay for his time spent in annual

training.

B

We next consider Mr. Adams’s title 10 activation

orders to support MPA tours and conclude that Mr.

Adams is not entitled to differential pay for these periods

of service because his service did not qualify as a

“contingency operation” as required by 5 U.S.C. § 5538(a).

As relevant to this case, 10 U.S.C. § 101(a)(13)(B) defines

the term “contingency operation” 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.

Mr. Adams was not called to duty under any

enumerated section in the definition of contingency

operation, and his orders expressly stated that they were

“non-contingency” activation orders. Nevertheless, Mr.

Adams argues that he was serving in a contingency

operation because the statutory definition includes

members of the military called to service under “any other

provision of law” during a declared national emergency.

Mr. Adams argues that he was called to duty under a

provision of law, 10 U.S.C. § 12301(d), and that the United

States has been in a continuous state of national

7a

emergency since September 11, 2001. See 84 Fed. Reg.

48,545 (declaration of the President continuing the

national emergency for the year 2019– 2020). Thus, Mr.

Adams argues that every military reservist ordered to

duty is performing a contingency operation so long as the

national emergency continues.

We have previously rejected such an expansive

reading of the definition of contingency operation. See

O’Farrell, 882 F.3d at 1086 n.5 (explaining that not all

reservists called to active duty during a national

emergency are acting in support of a contingency

operation). In O’Farrell, we considered 5 U.S.C. § 6323(b),

which entitled military reservists to military leave

benefits if they were called to active duty “in support of a

contingency operation.” There, we found that the

Petitioner’s activation orders under 10 U.S.C. § 12301(d)

qualified for benefits because the Petitioner was called to

active duty to replace a member of the Navy who had been

deployed to Afghanistan, and we therefore reasoned that

Petitioner was indirectly supporting the contingency

operation in Afghanistan. Id. at 1087–88. We find no

inconsistency between O’Farrell and the agency’s

decision to deny differential pay to Mr. Adams. The

requirements to qualify for differential pay under

§ 5538(a) are stricter than those for entitlement to

benefits under § 6323(b), because § 5538(a) does not

entitle a claimant to benefits when they are activated “in

support” of a contingency operation, only when they are

directly called to serve in a contingency operation.1

Moreover, unlike the Petitioner in O’Farrell, Mr. Adams

Illustrative of the difference in the stringency of the statutes, here

the agency awarded emergency military leave to Mr. Adams under

§ 6323(b)(2)(B), even while denying differential pay under § 5538(a).

J.A. 342.

1

8a

has not alleged any similar connection between his service

and the declared national emergency.

In determining the meaning of the statutory phrase

“any other provision of law,” we consider the context of

the enumerated provisions that qualify as a contingency

operation under the statutory definition and find that all

of the identified statutes involve a connection to the

declared national emergency. See 10 U.S.C. § 688(c)

(authorizing the activation of retired military personnel to

perform duties that “the Secretary considers necessary in

the interests of national defense”); § 12301(a) (authorizing

activation of reservists “[i]n time of war or of national

emergency”); § 12302 (authorizing activation in the Ready

Reserve “[i]n time of national emergency”); § 12304

(authorizing activation of reservists “when the President

determines that it is necessary to augment the active

forces”); § 12305 (authorizing the suspension of laws

relating to promotion, retirement, or separation for a

member of the military that “the President determines is

essential to the national security of the United States”); §

12406 (authorizing activation of service members when

the United States “is invaded or is in danger of invasion

by a foreign nation”); Chapter 13 (categorizing provisions

including authorization to call state militia into federal

service during time of insurrection “to suppress the

rebellion”); 14 U.S.C. § 3713 (authorizing activation “to

aid in prevention of imminent, serious natural or

manmade disaster, accident, catastrophe, act of

terrorism, or transportation security incident”). By

contrast, § 12301(d) authorizes the activation of reservists

“at any time . . . with the consent of that member.” Under

the principle of ejusdem generis, “[w]here general words

follow specific words in a statutory enumeration, the

general words are construed to embrace only objects

similar in nature to those objects enumerated by the

preceding specific words.” Cir. City Stores, Inc. v. Adams,

9a

532 U.S. 105, 114 (2001) (alteration in original) (quoting

2A N. Singer, Sutherland on Statutes and Statutory

Construction § 47.17 (1991)). We find it implausible that

Congress intended for the phrase “any other provision of

law during a war or national emergency,” to necessarily

include § 12301(d) voluntary duty that was unconnected to

the emergency at hand.

Our reading of § 5538(a) is consistent with the policy

guidance from the Office of Personnel Management

(OPM) on the matter. OPM guidance instructs that

“qualifying active duty does not include voluntary active

duty under 10 U.S.C. 12301(d).” See OPM Policy

Guidance Regarding Reservist Differential Under 5

U.S.C. § 5538 at 18 (available at https://www.opm.

gov/policy-data-oversight/payleave/pay-administration

/reservist -differential/ policy guidance. pdf). The

guidance also explains that “[t]he term ‘contingency

operation’ means a military operation that is designated

by the Secretary of Defense as an operation in which

members of the armed forces are or may become involved

in military actions, operations, or hostilities against an

enemy of the United States or against an opposing

military force.” Id. at 22. Mr. Adams does not allege that

he was ordered to perform such service.

We conclude that Mr. Adams’s service supporting

MPA tours under § 12301(d) was not a contingency

operation. Therefore, Mr. Adams is not entitled to

differential pay for these periods of service.

IV

Because none of Mr. Adams’s service qualifies as an

active duty contingency operation, as required by 5 U.S.C.

§ 5538(a), the agency properly denied differential pay. We

affirm the decision of the Board.

AFFIRMED

No costs.

APPENDIX B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER FIELD OFFICE

BRYAN ADAMS,

Appellant,

DOCKET NUMBER

DE-4324-19-0288-I-1

v.

DEPARTMENT OF

HOMELAND SECURITY,

Agency.

DATE: February 4, 2020

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

appellant.

Dean L. Lynch, Esquire, Tucson, Arizona, for the

agency.

Samantha Kooiker, Washington, D.C. for the agency.

BEFORE

Evan J. Roth

Administrative Judge

INITIAL DECISION

On May 30, 2019, Bryan Adams (“the appellant”) filed

an initial appeal in which he alleged he was denied

differential pay contrary to the Uniformed Services

Employment and Reemployment Rights Act of 1994

(codified as amended at 38 U.S.C. §§ 4301-4335)

(“USERRA”) (Initial Appeal File (“IAF”), Tab 1). On

(10a)

11a

June 29, 2019, I granted the appellant’s motion to amend

his claim to include an allegation the agency also violated

USERRA by requiring him to “buy back” time for

military service periods when he was in a Leave Without

Pay (“LWOP”) status (IAF, Tab 11). On August 5, 2019,

the appellant waived a hearing in favor a decision based

on written submissions (IAF, Tab 21). On September 13,

2019, the record closed (IAF, Tab 21). For the reasons

below, I DENY corrective action.

The appellant failed to carry his burden of proof

In a USERRA discrimination appeal, the appellant

bears the burden to establish by preponderant evidence

that his military service was a motivating factor in the

challenged actions. DeJohn v. Department of the Army,

106 M.S.P.R. 574, ¶ 6 (2007), aff’d, 298 F. App’x 991 (Fed.

Cir. 2008). Preponderant evidence is the “degree of

relevant evidence that a reasonable person, considering

the record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than untrue.”

5 C.F.R. § 1201.4.

Here, I find the appellant failed to carry that burden.

Indeed, I find the appellant failed to provide any credible

supporting or rebuttal evidence.

Specifically, on May 30, 2019, the appellant filed his

initial appeal in the form of a complaint (IAF, Tab 1). The

complaint was signed by the appellant’s attorney, but the

appellant did not swear to the allegations (IAF, Tab 1).

The same is true of the amended complaint (IAF, Tab 10).

On August 5, 2019, I set the merits briefing schedule

(IAF, Tab 21). Among other things, I explained that

“[f]actual assertions need to be supported by sworn

affidavits or declarations” (IAF, Tab 21). I specifically

provided the parties with the 28 U.S.C. § 1746 declaration

format (IAF, Tab 21, n.2). I also explained that a

declaration made under penalty of perjury is entitled to

12a

considerable weight unless it is rebutted” (IAF, Tab 21,

n.3).

On September 5, 2019, the appellant filed his opening

brief, but he did not support his factual assertions with

any affidavits or declarations (IAF, Tab 24). In contrast,

the agency’s opening brief was supported by the

declaration of Michelle Griffith, Supervisory Accountant

in the agency’s Payroll Branch (IAF, Tab 25, pages 13-16

of 60). I credit the Griffith declaration because it was

plausible, detailed, consistent with the record, under

penalty of perjury, and based on first-hand knowledge.

Hillen v. Department of the Army, 35 M.S.P.R. 453

(1987). On September 13, 2019, the appellant filed his

response brief, but again there were no affidavits or

declarations (IAF, Tab 26).1 Accordingly, the agency’s

Griffith declaration was unrebutted and entitled to

considerable weight. Vercelli v. U.S. Postal Service, 70

M.S.P.R. 322, 327 (1996). The agency’s reply brief

essentially rested on its prior assertions, together with a

correction regarding agency retirement credit (IAF, Tab

27, pages 4-5 of 12).

In sum, as a factual matter, I find the appellant failed

to carry his burden of proof because he failed to provide

credible affirmative or rebuttal evidence. In contrast, I

find the agency’s Griffith declaration was unrebutted and

entitled to considerable weight.

“[A]n essential element of a [USERRA]

discrimination claim is that the contested agency decision

was based on an improper motivation.” Clavin v. U.S.

Instead of providing affidavits for declarations, the appellant made

an evidentiary objection to the agency’s “Venn Diagram,” which

showed the overlapping relationship among various statutes (IAF,

Tab 26). I DENY the appellant’s objection, and I accept the agency’s

Venn Diagram as demonstrative evidence, which I found helpful to

explain the somewhat complicated statutory structure.

1

13a

Postal Service, 99 M.S.P.R. 619, 623 (2005); Swidecki v.

Department of Commerce, 113 M.S.P.R. 168, 173 (2010)

(“the appellant must prove by preponderant evidence that

his military status was at least a motivating or substantial

factor in the agency’s decision to deny him employment”).

Discriminatory motivation or intent may be proven by

direct or circumstantial evidence. McMillan v.

Department of Justice, 812 F.3d 1364, 1372 (2016) (citing

Sheehan v. Department of Navy, 240 F.3d 1009, 1014

(Fed. Cir. 2001)). Military service is a motivating factor if

the employer “relied on, took into account, considered, or

conditioned its decision” on it. McMillan, 812 F.3d at 1372

(quoting Erickson v. U.S. Postal Service, 571 F.3d 1364,

1368 (Fed. Cir. 2009)). Because employers rarely concede

an improper motivation, employees may satisfy their

burden with evidence that such a motive may be fairly

inferred. McMillan, 812 F.3d at 1372. The analysis is

guided by the following four nonexclusive factors: (1)

proximity in time between the employee’s military

activity and the adverse employment action; (2)

inconsistencies between the proffered reason and other

actions of the employer; (3) an employer’s expressed

hostility towards members protected by the statute

together with knowledge of the employee’s military

activity; and (4) disparate treatment of certain employees

compared to other employees with similar work records

or offenses. McMillan, 812 F.3d at 1372 (citing Sheehan,

240 F.3d at 1014).

Here, the first factor (proximity in time) is fairly clear

from the underlying documents, but the appellant failed

to provide credible evidence regarding any of the other

factors. In contrast, the agency provided credible

evidence that it did not discriminate, which the appellant

failed to rebut. Accordingly, I find the appellant failed to

carry his USERRA burden of proof because he failed to

14a

provide evidence (let alone credible evidence) of an

improper motivation.

The agency proved it did not discriminate

With respect to discrimination claims, USERRA

provides, in pertinent part, that a person who has

performed (or has an obligation to perform) service in a

uniformed service shall not be denied initial employment,

reemployment, retention in employment, promotion, or

any benefit of employment on the basis of performance of

that service or obligation. 38 U.S.C. § 4311(a). In this case,

there is no dispute the appellant is a member of the

Arizona Air National Guard (IAF, Tab 1). The issue was

whether the agency discriminated on account of the

appellant’s uniformed service.

The appellant raises two forms of alleged

discrimination. In both cases, I find the agency proved it

did not discriminate. I address each in turn below.

First, the appellant contends it was discrimination to

deny him “differential pay,” which was a benefit of

employment (IAF, Tabs 1, 10). The appellant sought

differential pay for three periods of time: (1) April 11, 2018

to July 13, 2018, when the appellant was mobilized on 10

U.S.C. § 12301(d) orders; (2) July 16, 2018 to July 30, 2018,

when the appellant was performing Annual Training

pursuant to 32 U.S.C. § 502(a) orders; and (3) July 28, 2018

to September 30, 2018 when the appellant was again

mobilized on 10 U.S.C. § 12301(d) orders (Griffith

Declaration ¶ 4). However, for each of those periods of

time, the agency proved it had legitimate nondiscriminatory reasons to deny differential pay.

In order to qualify for differential pay, the appellant

was required to be on “active duty” for certain specified

operations, generally known as “contingency operations”

(Griffith Declaration ¶¶ 3, 6, 7, 10, 11). However, for the

time periods at issue, the appellant did not qualify.

15a

Specifically, for the first and third time periods, the

appellant was mobilized pursuant to 10 U.S.C. § 12301(d)

orders, which did not qualify (Griffith Declaration ¶ 4), as

confirmed by Office of Personnel Management (“OPM”)

guidance (Griffith Declaration ¶ 6). In addition, for the

second time period, the appellant was performing Annual

Training, pursuant to 32 U.S.C. § 502(a) orders, which

likewise did not qualify (Griffith Declaration ¶ 11), as

further confirmed by OPM (Griffith Declaration ¶ 12). I

find those were legitimate non-discriminatory reasons for

the agency to deny the appellant’s differential pay

request. Accordingly, I DENY USERRA corrective

action regarding the appellant’s first claim.

Second, the appellant contends it was discrimination

to require him to “buy back” retirement credit for his

activated military service between April and September

2018. For that issue, I find the agency proved it did not

discriminate (Griffith Declaration ¶ 13). In accordance

with OPM guidance, the appellant was treated the same

as other Federal Employee Retirement System

(“FERS”) employees who are required to make a deposit

in order to “buy back” credit (Griffith Declaration ¶ 15).

When an employee is in a Leave Without Pay (“LWOP”)

status while in National Guard/Reserve service, the

employee has the option to “buy back” credit (Griffith

Declaration ¶ 15). In contrast, when an employee is in a

paid leave status, retirement credit automatically accrues

(Griffith Declaration ¶ 16). I find the agency’s decision to

require the appellant to “buy back” retirement credit was

based on legitimate and non-discriminatory reasons that

applied equally to other FERS employees. Accordingly, I

DENY USERRA corrective action regarding the

appellant’s second claim.

16a

Conclusion

For the foregoing reasons, I find the appellant failed

to carry his burden of proving USERRA discrimination. I

also find the agency proved the absence of USERRA

discrimination. Accordingly, I DENY USERRA

corrective action.

DECISION

The appellant’s request for corrective action is

DENIED.

FOR THE BOARD:

/S/

Evan J. Roth

Administrative Judge

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRYAN ADAMS,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

2020-1649

Petition for review of the Merit Systems Protection

Board in No. DE-4324-19-0288-I-1.

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,

PROST, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES,

STOLL, AND CUNNINGHAM, Circuit Judges.

PER CURIAM.

ORDER

Bryan Adams filed a combined petition for panel

rehearing and rehearing en banc. A response to the

petition was invited by the court and filed by The

Department of Homeland Security. Reserve Organization

of America requested leave to file a brief as amicus curiae,

which the court granted. The petition was referred to the

(17a)

18a

panel that heard the appeal, and thereafter the petition

for rehearing en banc was referred to the circuit judges

who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on January 5,

2022.

FOR THE COURT

December 29, 2021

Date

/s/ Peter R. Marksteiner

Peter Marksteiner

Clerk of Court

APPENDIX D

5 U.S.C. § 5538 - Nonreduction in pay while serving in

the uniformed services or National Guard

(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 section 12304b of title

10 or a provision of law referred to in section 101(a)(13)(B)

of title 10 shall be entitled, while serving on active duty, to

receive, for each pay period described in subsection (b),

an amount equal to the amount by which—

(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

interrupted by that service, exceeds (if at all)

(2) the amount of pay and allowances which (as

determined under subsection (d))—

(A) is payable to such employee for that

service;

and

(B) is allocable to such pay period.

(b) Amounts under this section shall be payable with

respect to each pay period (which would otherwise apply

if the employee’s civilian employment had not been

interrupted)—

(1) 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 subsection (a)); and

(2) for which such employee does not otherwise

receive basic pay (including by taking any annual,

military, or other paid leave) to which such employee

(19a)

20a

is entitled by virtue of such employee’s civilian

employment with the Government.

(c) Any amount payable under this section to an

employee shall be paid—

(1) by such employee’s employing agency;

(2) from the appropriation or fund which would

be used to pay the employee if such employee were in

a pay status; and

(3) to the extent practicable, at the same time and

in the same manner as would basic pay if such

employee’s civilian employment had not been

interrupted.

(d) The Office of Personnel Management shall, in

consultation with Secretary of Defense, prescribe any

regulations necessary to carry out the preceding

provisions of this section.

(e)(1) The head of each agency referred to in section

2302(a)(2)(C)(ii) shall, in consultation with the Office,

prescribe procedures to ensure that the rights under this

section apply to the employees of such agency.

(2) The Administrator of the Federal Aviation

Administration shall, in consultation with the Office,

prescribe procedures to ensure that the rights under this

section apply to the employees of that agency.

(f) For purposes of this section—

(1)

the

terms

“employee”,

“Federal

Government”, and “uniformed services” have the

same respective meanings as given those terms in

section 4303 of title 38;

(2) the term “employing agency”, as used with

respect to an employee entitled to any payments

under this section, means the agency or other entity

of the Government (including an agency referred to

in section 2302(a)(2)(C)(ii)) with respect to which such

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employee has reemployment rights under chapter 43

of title 38; and

(3) the term “basic pay” includes any amount

payable under section 5304.

APPENDIX E

5 U.S.C. § 6323 - Military leave; Reserves and National

Guardsmen

****

(b) Except as provided by section 5519 of this title, an

employee as defined by section 2105 of this title or an

individual employed by the government of the District of

Columbia, permanent or temporary indefinite, who—

(1) is a member of a Reserve component of the

Armed Forces, as described in section 10101 of title

10, or the National Guard, as described in section 101

of title 32; and

(2)(A) performs, for the purpose of providing

military aid to enforce the law or for the purpose of

providing assistance to civil authorities in the

protection or saving of life or property or the

prevention of injury—

(i) Federal service under section 331, 332,

333, or 12406 of title 10, or other provision of law,

as applicable, or

(ii) full-time military service for his State, the

District of Columbia, the Commonwealth of

Puerto Rico, or a territory of the United States;

or

(B) 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 section 101(a)(13)

of title 10;

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. Leave granted by this

subsection shall not exceed 22 workdays in a calendar

year. Upon the request of an employee, the period for

(22a)

23a

which an employee is absent to perform service described

in paragraph (2) 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 subsection. The period

of absence may not be charged to sick leave.

APPENDIX F

10 U.S.C. § 101 - Definitions

(a) IN GENERAL.—The following definitions apply in

this title:

****

(13) The term “contingency operation” means a

military operation that—

(A) is designated by the Secretary of

Defense as an operation in which members of the

armed forces are or may become involved in

military actions, operations, 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 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.

(24a)

APPENDIX G

10 U.S.C. § 12301 - Reserve components generally

****

(d) At any time, an authority designated by the

Secretary concerned may order a member of a reserve

component under his jurisdiction to active duty, or retain

him on active duty, with the consent of that member.

However, a member of the Army National Guard of the

United States or the Air National Guard of the United

States may not be ordered to active duty under this

subsection without the consent of the governor or other

appropriate authority of the State concerned.

(25a)

APPENDIX H

10 U.S.C. § 12304 - Selected Reserve and certain

Individual Ready Reserve members; order to active

duty other than during war or national emergency

(a) AUTHORITY.—Notwithstanding the provisions of

section 12302(a) or any other provision of law, when the

President determines that it is necessary to augment the

active forces for any named operational mission or that it

is necessary to provide assistance referred to in

subsection (b), he may authorize the Secretary of Defense

and the Secretary of Homeland Security with respect to

the Coast Guard when it is not operating as a service in

the Navy, without the consent of the members concerned,

to order any unit, and any member not assigned to a unit

organized to serve as a unit of the Selected Reserve (as

defined in section 10143(a) of this title), or any member in

the Individual Ready Reserve mobilization category and

designated as essential under regulations prescribed by

the Secretary concerned, under their respective

jurisdictions, to active duty for not more than 365

consecutive days.

(b) SUPPORT FOR RESPONSES TO CERTAIN

EMERGENCIES.— The authority under subsection (a)

includes authority to order a unit or member to active

duty to provide assistance in responding to an emergency

involving—

(1) a use or threatened use of a weapon of mass

destruction; or

(2) a terrorist attack or threatened terrorist

attack in the United States that results, or could

result, in significant loss of life or property.

(c) LIMITATIONS.—(1) No unit or member of a

reserve component may be ordered to active duty under

this section to perform any of the functions authorized by

chapter 13 or section 12406 of this title or, except as

(26a)

27a

provided in subsection (b), to provide assistance to either

the Federal Government or a State in time of a serious

natural or manmade disaster, accident, or catastrophe.

(2) Not more than 200,000 members of the Selected

Reserve and the Individual Ready Reserve may be on

active duty under this section at any one time, of whom

not more than 30,000 may be members of the Individual

Ready Reserve.

(3) No unit or member of a reserve component may

be ordered to active duty under this section to provide

assistance referred to in subsection (b) unless the

President determines that the requirements for

responding to an emergency referred to in that subsection

have exceeded, or will exceed, the response capabilities of

local, State, and Federal civilian agencies.

(d) EXCLUSION FROM STRENGTH LIMITATIONS.—

Members ordered to active duty under this section shall

not be counted in computing authorized strength in

members on active duty or members in grade under this

title or any other law.

(e) POLICIES AND PROCEDURES.— The Secretary of

Defense and the Secretary of Homeland Security shall

prescribe such policies and procedures for the armed

forces under their respective jurisdictions as they

consider necessary to carry out this section.

(f) NOTIFICATION OF CONGRESS.— Whenever the

President authorizes the Secretary of Defense or the

Secretary of Homeland Security to order any unit or

member of the Selected Reserve or Individual Ready

Reserve to active duty, under the authority of subsection

(a), he shall, within 24 hours after exercising such

authority, submit to Congress a report, in writing, setting

forth the circumstances necessitating the action taken

under this section and describing the anticipated use of

these units or members.

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(g) TERMINATION OF DUTY.— Whenever any unit of

the Selected Reserve or any member of the Selected

Reserve not assigned to a unit organized to serve as a unit,

or any member of the Individual Ready Reserve, is

ordered to active duty under authority of subsection (a),

the service of all units or members so ordered to active

duty may be terminated by—

(1) order of the President, or

(2) law.

(h) RELATIONSHIP TO WAR POWERS RESOLUTION.—

Nothing contained in this section shall be construed as

amending or limiting the application of the provisions of

the War Powers Resolution (50 U.S.C. 1541 et seq.).

(i) CONSIDERATIONS FOR INVOLUNTARY ORDER TO

ACTIVE DUTY.—(1) In determining which members of the

Selected Reserve and Individual Ready Reserve will be

ordered to duty without their consent under this section,

appropriate consideration shall be given to—

(A) the length and nature of previous service, to

assure such sharing of exposure to hazards as the

national security and military requirements will

reasonably allow;

(B) the frequency of assignments during service

career;

(C) family responsibilities; and

(D) employment necessary to maintain the

national health, safety, or interest.

(2) The Secretary of Defense shall prescribe such

policies and procedures as the Secretary considers

necessary to carry out this subsection.

(j) DEFINITIONS.— In this section:

(1) The term “Individual Ready Reserve

mobilization category” means, in the case of any

reserve component, the category of the Individual

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Ready Reserve described in section 10144(b) of this

title.

(2) The term “weapon of mass destruction” has

the meaning given that term in section 1403 of the

Defense Against Weapons of Mass Destruction Act of

1996 (50 U.S.C. 2302(1))