Adams v. Department of Homeland Security, No. 20-1649 (Fed. Cir. 2021)Annotate this Case
Adams, a member of the Arizona Air National Guard, worked in human resources for Customs and Border Patrol (the agency). In 2018, Adams performed three periods of National Guard military service. Between April 11 and July 13, Adams was activated under 10 U.S.C. 12301(d) to support a military personnel appropriation (MPA) tour in support of Twelfth Air Force; July 18-July 30, he was ordered to attend annual training under 32 U.S.C. 502(a). Between July 28 and September 30, Adams was again activated under section 12301(d) to support an MPA tour. Both 12301(d) orders stated that they were “non-contingency” activation orders.
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 paid in their civilian employment during the time of their absence (differential pay). Adams requested differential pay for each of his periods of service. Adams appealed the agency's denials. The Merit Systems Protection Board held that the denials did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301–4335). The Federal Circuit affirmed. Entitlement to differential pay requires service under a call to active duty that meets the statutory definition of a contingency operation. None of Adams’s service meets the statutory requirements for differential pay,