Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

12/01/2014

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Date

The claimant occupies the position of Assistant General Counsel, GG-905-15, with the Department of Defense’s Defense Intelligence Agency (agency).  With the claimant’s consent, he was ordered to active duty under the authority of 10 U.S.C. § 12301(d) pursuant to orders dated September 24, 2009, ordering the claimant to active duty for “365 days including accum [sic] leave” from September 28, 2009, and ending September 27, 2010.  The claimant filed a claim with the agency on or about April 4, 2012, asserting a phrase of 10 U.S.C. § 101(a)(13)(B) (“or any other provision of law during a war or during a national emergency declared by the President or Congress”) covers his activation under 10 U.S.C. § 12301(d), thereby entitling him to receive reservist differential under 5 U.S.C. § 5538.  He further states “[e]ach POTUS [President of the United States] has signed a declaration of national emergency related to 9/11 and one has continuously been in effect since 14 September 2001”, and “[i]n fact, [his] orders specifically reference this declaration signed by the President.”  In an August 26, 2013, decision, the agency denied the claim. 

Claimant now requests the U.S. Office of Personnel Management (OPM):  (1) reverse his agency’s denial of reservist differential under section 5538 of title 5, United States Code (U.S.C.); (2) rescind the Department of Defense’s June 14, 2010 memorandum[1] providing guidance for implementing the reservist differential insofar as it denies a claim for differential pay made for reserve component servicemembers who were mobilized under the authority of 10 U.S.C. § 12301(d); and, 3) order the agency to pay the reservist differential for his service on active duty from September 28, 2009, to September 27, 2010, and “interest for [his] differential pay in accordance with the Prompt Payment Act.”[2]  We received the claim on December 24, 2013, and the agency administrative report (AAR) on March 27, 2014.  For the reasons discussed herein, the claim is denied.

Reservist Differential- Relevant Statutory Provisions

Section 5538 of title 5 U.S.C. states the following regarding eligibility to receive reservist differential:

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 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), [a reservist differential, which reflects the amount equal to the amount by which the employee’s basic pay for civilian employment (which would otherwise have been payable but for the call to active duty in the uniformed services) exceeds the amount of pay and allowances paid for performing active duty in the uniformed services].

Eligibility for reservist differential is controlled by 10 U.S.C. § 101(a)(13)(B).  Section 101 currently provides, in relevant part:

(a)    In general.  The following definitions apply in this title:

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(13) The term "contingency operation" means a military operation that—

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(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 15 of this title, section 712 of title 14, or any other provision of law during a war or during a national emergency declared by the President or Congress.

Agency’s Position

In its August 26, 2013, claim denial, the agency states that, in accordance with its June 14, 2010 memorandum “Implementation of Reservist Differential under 5 U.S.C. 5538”:

Reservist differential under section 5538 is payable to an employee for a qualifying period during which the employee meets BOTH of the following conditions:

- An employee is absent from a Federal civilian position 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 10 U.S.C. 101(a)(13)(B), and is serving on such active duty under one of the following authorities:  10 USC 331, 10 USC 332, 10 USC 688, 10 USC 12301(a), 10 USC 12302, 10 USC 12304, 10 USC 12305, 10 USC 12406; and

- The employee is entitled to reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA-38 U.S.C. chapter 43) for such active duty.

The agency found that, because claimant was ordered to active duty under 10 U.S.C. § 12301(d), he did not meet the above criteria and was, therefore, ineligible to receive the reservist differential.

Claimant’s Position

The claimant disputes the agency’s denial of his claim, asserting that the plain language of the relevant statutes renders him eligible to receive the reservist differential.  In support of his claim, he also references the analysis contained in a complaint decision (Case No 12-GA-05 (VT)), dated December 27, 2012), issued by the Office of Compliance (OOC), a legislative branch entity, regarding a claim filed by a legislative branch employee. See generally 2 U.S.C. chap. 24.[3] 

In the OOC decision, the hearing officer determined that, in 5 U.S.C. § 5538, the phrase “a provision of law referred to in section 101(a)(13)(B) of title 10” encompasses not only the provisions of law specifically enumerated in 10 U.S.C. § 101(a)(13)(B), but also the catch-all provision in 10 U.S.C. § 101(a)(13)(B) (“or any other provision of law during a war or during a national emergency declared by the President or Congress”).  The hearing officer based this broad interpretation on his reading of principles of statutory construction, and determined that:  if Congress had wished to use more narrow language, it knew how to and would have done so; a narrow reading would render the catch-all phrase superfluous; and, a narrow reading would imply that the legislature was ignorant of the meaning of the language it employed.  The decision held that the reservist differential under 5 U.S.C. § 5538 applied to a civilian employee mobilized to active duty under 10 U.S.C. § 12301(d), based on a determination that the catch-all phrase in 10 U.S.C. § 101(a)(13)(B) included activations under 10 U.S.C. § 12301(d).

Analysis

As an initial matter, we address claimant’s request that OPM rescind the Department of Defense’s June 14, 2010 memorandum providing guidance for implementing the reservist differential insofar as it denies a claim for differential pay made for reserve component servicemembers who were mobilized under the authority of 10 U.S.C. § 12301(d).  OPM’s authority under 31 U.S.C. § 3702 is narrow and limited to adjudication of compensation and leave claims.  Section 3702 does not include the authority to order the rescinding of agency guidance as requested by the claimant.  As such, this request is denied.

Upon careful review and consideration of the claimant’s request that we reverse the agency’s denial of his claim and pay the reservist differential for his service on active duty from September 28, 2009, to September 27, 2010, we deny the claim.  We conclude that, in determining an employee’s eligibility to receive the reservist differential, the catch-all phrase in 10 U.S.C. § 101(a)(13)(B) (“or any other provision of law during a war or during a national emergency declared by the President or Congress”) does not include activations under 10 U.S.C. § 12301(d).  As such, activations under section 12301(d) are not covered for purposes of the reservist differential because the plain language of 5 U.S.C. § 5538 provides that the reservist differential may be paid to “[a]n employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed services pursuant to a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10.”  (emphasis added).  This would indicate that only the specifically enumerated provisions of section 101(a)(13)(B) are included for purposes of coverage under the reservist differential statute.  In fact, if Congress had intended to include all of the provisions of 10 U.S.C. § 101(a)(13)(B), it could have accomplished that without including such specific language (e.g., by paying the reservist differential to an employee performing active duty in the uniformed services pursuant to a call or order to active duty “in” (or “under”) section 101(a)(13)(B) of title 10).  The language “referred to” must be given meaning in order to not be rendered superfluous.  If all provisions of section 101(a)(13)(B) (including the catch-all provision) were intended to be included, then there would be no need to include the “referred to” language.[4] 

Subsequent legislative action by Congress confirms this reading.  In 2011, 10 U.S.C. § 101(a)(13)(B) was amended to include a new provision under the definition of “contingency operation”.  This new provision, section 12304a, added a newly-enacted authority to order Army Reservists, Navy Reservists, Marine Reservists, and Air Force Reservists to active duty to assist in responding to a major disaster or emergency to the list of specifically enumerated authorities included in the definition of “contingency operation” under section 101(a)(13)(B).  Pub. L. No. 112-81, Div A, Title V, Subtitle B, § 515, 125 Stat. 1395.  If such an authority to activate would have automatically been covered under the catch-all provision of section 101(a)(13)(B) (“under any other provision of law during a war or during a national emergency declared by the President or Congress”), there would have been no need to specifically add this provision to section 101(a)(13)(B). 

In a subsequent amendment even further illuminating of Congress’ intent, section 101(a)(13)(B) was amended in 2013 to include “section 712 of title 14” in the definition of “contingency operation” under section 101(a)(13)(B), thereby including activated Coast Guard service members under the definition of “contingency operation”.  Pub. L. No. 112-239, Div A, Title VI, Subtitle I, § 681(a), 126 Stat. 1795.  If these individuals had already been included under the catch-all provision of section 101(a)(13)(B), there would have been no need to amend the law to specifically add this authority to the definition. 

In this amendment, Congress even further evidenced its reading as to coverage of Coast Guard service members by specifically providing that retroactive coverage under 5 U.S.C. § 5538 be conferred to these individuals.  Pub. L. No. 112-289, § 681(d)(2)(A) (providing that, for any call or order to active duty under 14 U.S.C. § 712 on or after December 31, 2011, the amendments of this section shall be deemed to have been enacted on December 31, 2011, for purposes of applying the amendments to 5 U.S.C. § 5538).  If the pre-amendment language already covered such individuals under the catch-all provision of section 101(a)(13)(B), there would have been no need for Congress to include provisions for retroactive coverage for purposes of the reservist differential and other listed benefits provisions.  This amendment indicates that these employees were not covered under the catch-all provision of 10 U.S.C. § 101(a)(13)(B) or the reservist differential under 5 U.S.C. § 5538 until Congress specifically acted to provide coverage by specifically referring to “section 712 of title 14” in section 101(a)(13)(B).  In short, these amendments, consistent with the plain language of the statute, demonstrate congressional intent that only employees activated under the specifically enumerated authorities within section 101(a)(13)(B) are covered for purposes of the reservist differential.

Even assuming arguendo that the terms at issue may be considered ambiguous and subject to interpretation, we consider a reading limiting coverage for purposes of 5 U.S.C. § 5538 to the enumerated sections within 10 U.S.C. § 101(a)(13)(B) to be consistent with principles of statutory construction.  Under the canon of expressio unius, the inclusion of one thing in the text indicates the exclusion of others.  See, e.g., Tennesee Valley Auth. v. Hill, 437 U.S. 153, 188 (1978).  Since employees called or ordered to duty under provisions of law referred to in 10 U.S.C. § 101(a)(13)(B) are considered eligible for the reservist differential, then those called or ordered to duty under other provisions are not intended to be considered eligible for the reservist differential.

This interpretation is also consistent with the principle of statutory construction providing that interpretation of statutory language should avoid rendering statutory language as mere surplusage.  It is a cardinal principle of statutory construction that a statute ought to be construed such that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. Duncan v. Walker, 533 U.S. 167, 174 (2001).  Claimant’s assertion that 5 U.S.C. § 5538 applies to a Federal Government employee mobilized to active duty under 10 U.S.C. § 12301(d) by virtue of the catch-all phrase contained in 10 U.S.C. § 101(a)(13)(B) would render the reference to the enumerated sections of law in 10 U.S.C. § 101(a)(13)(B) unnecessary, because the enumerated sections are also provisions of law related to activating servicemembers during a war or other emergency situation.  The fact that certain activation provisions have been specifically referenced separately from the catch-all phrase has to be given meaning, or else there would be no need for the specific references to those authorities.  The specifically enumerated sections have been intentionally distinguished from the catch-all provision, and that distinction must be recognized to avoid rendering the language superfluous.[5]  As such, we disagree with the interpretation put forth by claimant, as it would require that the enumerated sections be subsumed within the catch-all phrase, thereby rendering the inclusion of the enumerated authorities superfluous.

This interpretation is also consistent with the canon of statutory construction recognizing that Congress knows how to say what it intends.  Koch Foods v. Department of Labor, 712 F.3d 476, 482 (11^th Cir. 2013) (quoting Griffith v. United States, 206 F.3d 1389, 1394 (11th Cir. 2000) (internal quotation omitted) ("[W]here Congress knows how to say something but chooses not to, its silence is controlling.")).  Had Congress intended to include individuals activated under 10 U.S.C. § 12301(d) for purposes of coverage under 5 U.S.C. § 5538, it knew how to do so.  Congress demonstrated such action when it extended coverage under 10 U.S.C. § 101(a)(13)(B) to Coast Guard servicemembers under 14 U.S.C. § 712.  It further demonstrated the reading that individuals not activated under provisions specifically enumerated under 10 U.S.C. § 101(a)(13)(B) are not covered for purposes of the reservist differential by extending retroactive coverage for purposes of the reservist differential to the newly-covered Coast Guard servicemembers in order to provide such coverage.  The logical reading based on the plain language of the statutes, and the review and application of the subsequent amendments to these provisions, is that individuals not called or ordered to active duty under the provisions specifically referred to in 10 U.S.C. § 101(a)(13)(B) are not covered for purposes of 5 U.S.C. § 5538. 

Thus, because Congress has not acted to amend 10 U.S.C. § 101(a)(13)(B) to specifically refer to activations under section 12301(d), employees activated under that provision are not eligible for the reservist differential under 5 U.S.C. § 5538.  Claimant is not entitled to receive a reservist differential for his service on active duty from September 28, 2009, to September 27, 2010.  Therefore, the claim is denied.

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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