MILITARY LEAVE DIFFERENTIAL PAY USERRA VICTORY

People get called up for active military service for a variety of reasons ranging from being assigned to the front lines of a battle to providing direct or indirect support for soldiers in battle to attending a school required for a pending promotion. One of the benefits of those activated is that law requires that their military pay be supplemented by their agency to equal what they were being paid in their federal civilian position. That is called differential pay. See 5 U.S.C. § 5538(a) When a VA civilian employee was selected for promotion to an officer position, he was required to attend Officer Candidate School. However, when he asked the VA to provide him differential pay, it refused claiming the type of service he would perform while activated did not qualify for differential pay. The employee appealed to MSPB because even though he was not heading into a war zone or combat, Trump’s White House had proclaimed the country was under a “national emergency” at the time.   Here is the Board’s reasoning. (Given all the national emergencies Trump declares from week to week, union’s would be wise to  circulate this information among members to make sure they get what they deserve.)

Section 5538(a) of Title 5 “requires the [G]overnment to provide differential pay to a [F]ederal civilian employee reservist when the military orders him to active-duty service ‘under . . . a provision of law referred to in [10 U.S.C. §] 101(a)(13)(B).’” Feliciano, 605 U.S. at 42 (quoting 5 U.S.C. § 5538(a)). Section 101(a)(13)(B), in turn, defines certain types of military operations as “contingency operation[s],” including a catchall category for those that result “in the call or order to, or retention on, active duty . . . under . . . any other provision of law during a war or during a national emergency declared by the President or Congress.” In its decision in Feliciano, which was issued after the initial decision in this case, the U.S. Supreme Court interpreted the term “during” in section 101(a)(13)(B) to mean “contemporaneous with” a national emergency. Feliciano, 605 U.S. at 44-45. The Court rejected the U.S. Court of Appeals for the Federal Circuit’s determination in Adams v. Department of Homeland Security, 3 F.4th 1375, 1379-80 (Fed. Cir. 2021), abrogated by Feliciano, 605 U.S. at 43-56, that differential pay is contingent on “directly . . . serv[ing] in a contingency operation.” Accordingly, to be entitled to differential pay under 5 U.S.C. § 5538(a), an appellant is only required to show that his active -duty service occurred at the same time as a national emergency.

Because the appellant’s active duty under 10 U.S.C. § 12301(d) to attend Officer Training School temporally coincided with a declared national emergency, he is entitled to differential pay pursuant to 5 U.S.C. § 5538(a) from August 25 through October 21, 2020.

For more details, check out 2026 MSPB 1 Docket No. DC-4324-21-0052-I-4 Michael Sopko, Appellant, v. Department of Veterans Affairs, Agency. January 22, 2026