129

Whether Reservists Must Exhaust Available Leave 

Under 5 U.S.C. § 6323(b) Before Taking Leave 

Under 5 U.S.C. § 6323(a)

A reservist who performs military service that qualifies for leave under 5 U.S.C. 

§§ 6323(a) and 6323(b) may elect to take leave under section 6323(a) without first 

using all of his or her available leave under section 6323(b).

April 3, 2012

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF VETERANS AFFAIRS

The Department of Veterans Affairs (“VA”) has asked whether a federal employee who performs military service that qualifies for leave under 

both 5 U.S.C. § 6323(a) (2006) and 5 U.S.C. § 6323(b) (2006 & Supp. IV 

2010) must exhaust available leave under section 6323(b) before taking 

leave under section 6323(a). Letter for Eric Holder, Attorney General, 

from Will A. Gunn, General Counsel, VA at 6 (Apr. 1, 2011) (“Opinion 

Request”). In our view, the statute does not impose such an exhaustion 

requirement. An employee who otherwise qualifies for leave under both 

section 6323(a) and section 6323(b) may elect to take leave under section 

6323(a) even if the employee has unused leave under section 6323(b).

As we explain in detail below, the text of section 6323(a), which entitles an employee to military leave under specified conditions, does not 

require that an employee first exhaust available military leave under 

section 6323(b). Nor does anything in the text of section 6323(b) suggest 

that exhaustion of the leave it provides is a prerequisite to an employee’s 

use of leave under section 6323(a). We do not find section 6323(a) and (b) 

ambiguous with respect to exhaustion. Indeed, had we found any ambiguity in these leave provisions, we would have construed them in favor of 

those who perform military service. See Henderson ex rel. Henderson v. 

Shinseki, 131 S. Ct. 1197, 1206 (2010).

The conclusion that exhaustion is not required is also supported by the 

legislative and drafting history of section 6323(b), which demonstrates 

that this provision was enacted to supplement the existing leave provided

by section 6323(a), not to displace or restrict it. Our reading of section 

6323(a) and (b) is also consistent with the provisions of, and practice 

under, other federal leave statutes: Some of these statutes use language 
36 Op. O.L.C. 129 (2012)

130

similar to that in section 6323, yet they generally do not oblige an employee to use one type of leave before or instead of another when the 

employee qualifies for multiple types of leave. Finally, reading an exhaustion requirement into section 6323(b) would frustrate Congress’s purposes 

in enacting the statute, which included expansion of existing military 

leave and alleviation of the financial hardship of employees who perform 

military service. If exhaustion were required, some employees who perform military service would be worse off than they were before the statute’s enactment.

Some agencies appear to have concluded that a 1996 amendment to the 

statute, which clarified that employees may elect to use annual leave or 

compensatory time instead of leave under section 6323(b), indicates that

section 6323(b) leave must be exhausted before military leave may be 

taken under section 6323(a). That inference is unwarranted. The 1996 

amendment does not address whether employees may use leave under 

section 6323(a) before or instead of section 6323(b) leave, and the 

amendment is consistent with the conclusion that they may.

For all of these reasons, we conclude that employees are not required to 

exhaust military leave under section 6323(b) before using the military 

leave conferred by section 6323(a).

I.

A federal employee (as defined by 5 U.S.C. § 2105 (2006)) who is a 

member of the National Guard or another reserve component of the 

armed forces (“reservist”) is entitled to two overlapping types of paid 

leave from his or her civilian job for military service. The first and most 

longstanding type of military leave is conferred by section 6323(a). That 

provision states that a reservist is “entitled to leave without loss in pay, 

time, or performance or efficiency rating for active duty, inactive-duty 

training . . . , funeral honors duty . . . , or engaging in field or coast 

defense training.” 5 U.S.C. § 6323(a). Thus, reservists may use section 

6323(a) leave for both annual training exercises, see 10 U.S.C. § 10147 

(2006); 32 U.S.C. § 502 (2006), and active duty, which generally includes all “full-time duty in the active military service of the United 

States,” 10 U.S.C. § 101(d)(1) (2006), including service to assist in civil 

law enforcement or to perform traditional military operations. See Opinion Request at 3; Leave of Absence—Civilians on Military Duty—Excess 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

131

Leave, 47 Comp. Gen. 761, 762 (1986). Section 6323(a) leave accrues at 

the rate of 15 days per fiscal year, and a reservist may carry forward up 

to 15 days of accumulated leave into the next fiscal year. Id. A reservist 

taking section 6323(a) leave receives his or her full civilian salary as well 

as military pay.

Section 6323(a) leave is nearly a century old. It originated with Public 

Law 65-11, 40 Stat. 40, 72 (1917), which provided

[t]hat all officers and employees of the United States or of the District of Columbia who shall be members of the Officers’ Reserve 

Corps shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during 

which they shall be ordered to duty with troops or at field exercises, 

or for instruction, for periods not to exceed fifteen days in anyone 

calendar year.

In its original form, as today, section 6323(a) provided leave for both 

training (“field exercises” or “instruction”) and active duty (“duty with 

troops”). Id. By the mid-1960s, section 6323(a) had evolved to closely 

resemble its current version and provided that covered reservists were 

“entitled to leave without loss of pay, time, or performance or efficiency 

rating for each day, not in excess of 15 days in a calendar year,” devoted 

to “active duty” or “field or coast defense training.” 5 U.S.C. § 6323(a) 

(Supp. II 1966).1

Beginning around the mid-1960s, the government increasingly began to 

call upon reservists to perform active-duty military service, particularly in 

aid of civil law enforcement, for significant periods of time. Due to those 

additional demands, the 15 days of leave provided by section 6323(a) 

 1 Congress has made few substantive changes to section 6323(a) since that time. In 

1970, Congress expanded section 6323(a) to cover all reservists, eliminating an exception 

for certain postal field service employees. See Postal Reorganization Act, Pub. L. No. 91-

375, § 6(c)(18), 84 Stat. 719, 776. In 1980, the statute was revised to provide that leave 

would accrue on a fiscal year basis and that employees could carry over up to 15 days of 

accrued leave into the next fiscal year. See Pub. L. No. 96-431, § 1, 94 Stat. 1850, 1850

(1980). In 1999, Congress added inactive-duty training as a qualifying form of military 

service, see National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-

65, § 1106(a), 113 Stat. 512, 777; and, in 2001, Congress added funeral honors duty, see

National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, div. A, 

§ 563, 115 Stat. 1012, 1120.
36 Op. O.L.C. 129 (2012)

132

often proved insufficient to cover all of a reservist’s military service. See

H.R. Rep. No. 90-1560, at 3, 4–5 (1968); S. Rep. No. 90-1443, at 2 

(1968). Reservists frequently would use up the leave provided by section 

6323(a) while performing service in aid of law enforcement and therefore 

would be forced to use annual leave, or to go on military furlough without 

civilian pay, for their remaining military service, including their training. 

See H.R. Rep. No. 90-1560, at 2–3; 114 Cong. Rec. 11,114 (1968) (statement of Rep. Machen).

Members of Congress viewed the “personal inconvenience” and “financial hardship” caused by the inadequacy of section 6323(a) leave as an 

“inequity” in need of correction. H.R. Rep. No. 90-1560, at 3–4; 114 

Cong. Rec. at 11,114 (statement of Rep. Machen); 114 Cong. Rec. at 

19,390 (same). Consequently, in 1968, Congress enacted a second type of 

military leave, now codified in section 6323(b), to provide “additional” 

leave that would supplement the 15 days of military leave already provided by section 6323(a). H.R. Rep. No. 90-1560, at 2, 6; S. Rep. No. 90-

1443, at 1.2 That supplemental leave was, however, less expansive and 

somewhat less advantageous to reservists than the basic leave provided 

under section 6323(a). As originally enacted, section 6323(b) stated that a 

covered reservist who performed either federal service “for the purpose of 

providing military aid to enforce the law” or “full-time military service 

for his State, the District of Columbia,” or a federal territory was, except 

as provided in 5 U.S.C. § 5519, “entitled, during and because of such 

service, to leave without loss of, or reduction in, pay, leave to which he 

otherwise [was] entitled, credit for time or service, or performance or 

efficiency rating.” Pub. L. No. 90-588, § 2(a), 82 Stat. 1151 (1968).

3

Section 6323(b) did not provide additional leave for all types of active 

duty covered by section 6323(a) leave, but instead provided extra leave 

for only the specific kind of military service—service in aid of civil law 

 2 As originally enacted, the new provision was denominated section 6323(c). Pub. L. 

No. 90-588, § 2(a), 82 Stat. at 1151. It was re-designated as section 6323(b) in 1979. Pub. 

L. No. 96-54, § 2(a)(40), 93 Stat. 381, 383 (1979). We refer to the provision as section 

6323(b) throughout this opinion.

3 The reservists covered by section 6323(b) originally included all federal employees 

under 5 U.S.C. § 2105 except certain employees of the postal field service. Congress 

eliminated the exception for postal employees in 1970, at the same time that it eliminated 

the parallel exception under section 6323(a). Postal Reorganization Act § 6(c)(18), 84 

Stat. at 776; supra note 1.
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

133

enforcement—that had created problems with the adequacy of existing 

leave. Congress also limited section 6323(b) leave to “22 workdays in a 

calendar year” and did not permit reservists to carry over any unused 

section 6323(b) leave to the following year. Id. In addition, in section 

5519, Congress required that the military pay received by a reservist 

while on leave under section 6323(b) be credited against his or her civilian pay (so that a reservist taking leave under section 6323(b) would 

receive the higher of his or her military or civilian pay, but not both). See

5 U.S.C. § 5519 (2006).

In 1969, the United States Civil Service Commission, the predecessor 

agency to the Office of Personnel Management (“OPM”), requested the 

Comptroller General’s views on several interpretative questions concerning section 6323(b). In responding to that request, the Comptroller General opined that an employee who performs military duty qualifying for 

leave under section 6323(b), and who has available leave under that 

provision, (1) may not “involuntarily be charged annual leave or any other 

type of leave” for the time spent performing military duty and (2) “may 

not elect to use” annual or other available leave. To Chairman, United 

States Civil Service Commission, 49 Comp. Gen. 233, 237 (1969) (“1969 

CG Opinion”). The Comptroller General stated that this conclusion followed from the language in section 6323(b) admonishing that an employee is entitled to leave “without loss of[,] or reduction in[,] . . . leave to 

which he otherwise is entitled.” Id. at 236 (quoting section 6323(b)).

The 1969 CG Opinion provoked no immediate response from Congress. 

Beginning with the appropriations act for the Department of Defense for 

fiscal year 1991, however, Congress began including in the Defense 

Department appropriations acts language making clear that reservists 

could use annual leave instead of leave under section 6323(b) if they so 

requested. See Pub. L. No. 101-511, § 8086, 104 Stat. 1856, 1895–96

(1990); Pub. L. No. 102-172, § 8068, 105 Stat. 1150, 1187 (1991); Pub. L. 

No. 102-396, § 9064, 106 Stat. 1876, 1916–17 (1992); Pub. L. No. 103-

139, § 8047, 107 Stat. 1418, 1450–51 (1993); Pub. L. No. 103-335, 

§ 8042, 108 Stat. 2599, 2627 (1994).

In 1996, Congress amended section 6323(b) to make that clarification 

permanent. The 1996 amendment added the following language to the end 

of the subsection:
36 Op. O.L.C. 129 (2012)

134

Upon the request of an employee, the period for which an employee 

is absent to perform service [that qualifies for leave under this subsection] 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.

National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 

104-106, § 516(a), 110 Stat. 186, 309 (“NDAA for FY 1996”). The 1996 

amendment thus only addressed the relationship between section 6323(b) 

leave and annual leave, compensatory time, and sick leave, not the relationship between section 6323(b) leave and any other type of leave, including leave under section 6323(a).

Apart from the 1996 amendment, the only other changes that Congress 

has made to section 6323(b) have been expansions in the types of military service that qualify for leave. In 1991, Congress added, as qualifying 

service, military service “for the purpose of providing assistance to civil 

authorities in the protection or saving of life or property or the prevention 

of injury.” National Defense Authorization Act for Fiscal Years 1992 and 

1993, Pub. L. No. 102-190, div. A, sec. 528, § 6323(b)(2), 105 Stat. 

1290, 1364. And, in 2003, Congress added “full-time military service as 

a result of a call or order to active duty in support of a contingency 

operation.” National Defense Authorization Act for Fiscal Year 2004, 

Pub. L. No. 108-136, div. A, sec. 1113(a), § 6323(b)(2)(B), 117 Stat. 

1392, 1635.4 Those expansions in the types of active duty that qualify for 

leave under section 6323(b) have increased the overlap between section 

6323(b) leave and section 6323(a) leave. At the same time, Congress has 

retained the provisions that make section 6323(b) leave less advanta-

 4 A “contingency operation” is 

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 . . . during a war or during a national emergency declared 

by the President or Congress. 

10 U.S.C. § 101(a)(13) (2006).
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

135

geous to reservists than section 6323(a) leave, most notably the provision 

limiting a reservist’s pay while on section 6323(b) leave to the higher of 

his military or civilian pay.

As explained in its letter requesting our opinion, the VA sees nothing 

in section 6323 that requires a reservist to exhaust available leave under 

section 6323(b) before taking leave under section 6323(a), and the VA 

therefore believes that its reservist employees may elect, at their option, 

to use military leave under section 6323(a) rather than section 6323(b). 

Opinion Request at 2. OPM has adopted a contrary interpretation of the 

statute, citing the 1969 CG Opinion. See OPM, OPM Policy Guidance 

Regarding Reservist Differential Under 5 U.S.C. 5538 at 5–6 (Apr. 13, 

2011) (“Reservist Differential Policy Guidance”). The VA, however, 

maintains that neither the text nor the legislative history of section 6323 

supports an exhaustion requirement. See Opinion Request at 3–4. The 

VA believes that the 1996 amendment to section 6323(b) has undermined the reasoning in the 1969 CG Opinion. See id. at 5. The VA also 

contends that OPM’s interpretation is inconsistent with an OPM regulation implementing the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–

4334 (2006 & Supp. IV 2010), and that OPM’s interpretation would, in 

some instances, force employees to forfeit accrued leave under section 

6323(a). Opinion Request at 5–6.

In response to the VA’s opinion request, we solicited the views of 

OPM, which adhered to the position expressed in its policy guidance 

that a reservist is required to exhaust available leave under section 

6323(b) before using leave under section 6323(a). Letter for John E. 

Bies, Deputy Assistant Attorney General, Office of Legal Counsel, 

Department of Justice, from R. Alan Miller, Associate General Counsel, 

United States Office of Personnel Management at 7 (Sept. 2, 2011) 

(“OPM Views Letter”). We also requested the views of the Department 

of Defense (“DoD”), which informed us that it considers the question a 

close one but agrees with OPM. Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Jeh Charles Johnson, General Counsel, Dep’t of Defense, at 2 (Nov. 10, 2011) (“DoD 

Views Letter”).
36 Op. O.L.C. 129 (2012)

136

II.

We have carefully considered the text, context, legislative history, and 

purposes of section 6323, as well as the interpretations of the agencies 

whose views we solicited. In light of these factors, and cognizant of the 

principle that statutes providing benefits to individuals engaged in military service should be construed in the beneficiaries’ favor, we conclude 

that a reservist need not exhaust his or her available leave under section 

6323(b) before using leave under section 6323(a).

A.

Section 6323 does not contain an express exhaustion requirement, and 

we can identify no basis for reading the text to include such a requirement. As described above, section 6323(a) states that an employee “is 

entitled to leave” under that provision “for active duty, inactive-duty 

training . . . , funeral honors duty . . . , or engaging in field or coast defense training . . . as a Reserve of the armed forces or a member of the 

National Guard.” Nothing in that language suggests that leave under 

section 6323(a) is contingent on an employee’s first using leave available 

under other provisions. Instead, Congress’s use of the word “entitled” 

indicates that an employee has a right to leave under that provision so 

long as he or she performs certain military activities as a Reserve or 

National Guard member. The ordinary meaning of the word “entitled,” in 

legal and general usage, is “give[n] a right or title to,” “qualif[ied] . . . 

for,” or “furnish[ed] with proper grounds for seeking or claiming something.” Webster’s Third New International Dictionary 758 (1993) (“Webster’s Dictionary”); accord Random House Dictionary of the English 

Language 649 (2d ed. 1987) (“Random House Dictionary”); see Ingalls 

Shipbuilding, Inc. v. Dir., Office of Workers’ Comp. Programs, Dep’t of 

Labor, 519 U.S. 248, 255–56 (1997). The statute does not condition the 

employee’s right to leave on satisfaction of additional prerequisites, such 

as exhaustion of other available types of leave.

Similarly, nothing in the text of section 6323(b) indicates that exhaustion of the leave it provides is a prerequisite to an employee’s use of leave 

under section 6323(a). Section 6323(b) states that an employee who “(1) 

is a member of a reserve component of the Armed Forces . . . or the 

National Guard” and (2) performs one of three specified types of military 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

137

service “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.” As discussed 

above, use of the word “entitled” makes clear that the employee has “a 

right” to leave under section 6323(b) if he or she satisfies the listed conditions. It does not suggest that the employee is required to take section 

6323(b) leave, much less that the employee is required to take section 

6323(b) leave before using a different type of leave to which the employee has a right under another statutory provision.

We have found no reason to depart from the plain meaning of section 

6323 and to import into the statute a requirement that employees exhaust 

section 6323(b) leave before using section 6323(a) leave. On the contrary, 

as explained below, reading section 6323 to contain an exhaustion requirement would be in tension with its legislative and drafting history, 

would be inconsistent with the interpretation of other leave statutes, and 

would undermine Congress’s purposes in enacting section 6323(b), which 

included improving the financial situation of reservists by supplementing 

the military leave already available to them. See infra Part II.B–D.

OPM advances two textual arguments in support of an exhaustion requirement. First, OPM observes that sometimes when a statute provides 

that an individual is “entitled” to a certain benefit, the individual is 

required to accept that benefit. OPM Views Letter at 2. For example, 

OPM notes, employees who are “entitled” to pay under various statutory 

provisions must accept that pay and cannot chose to waive it. Id. (citing 

5 U.S.C. §§ 5334(b), 5363, 5534, 5562 (2006); 5 U.S.C. §§ 5551, 5595 

(2006 & Supp. IV 2010)). OPM thus contends that “the word ‘entitled’ 

in section 6323(b) should be interpreted as meaning ‘required.’” Id. at 3.

OPM is correct that federal employees are prohibited from waiving 

pay to which they are statutorily entitled, but the basis for that prohibition is not that the word “entitled” means “required.” Instead, the prohibition derives from the principle, first recognized in Glavey v. United 

States, 182 U.S. 595 (1901), that allowing a federal employee to agree to 

accept a salary lower than the one set by Congress would violate public 

policy. See Employment of Retired Army Officer as Superintendent of 

Indian School, 30 Op. Att’y Gen. 51, 56 (1913). Such salary waivers are 

against public policy because permitting them would effectively cede to 

the Executive Branch Congress’s power to fix the salaries of federal 
36 Op. O.L.C. 129 (2012)

138

officials and would disadvantage those individuals who are unable or 

unwilling to work for less than the salary prescribed by the legislature. 

See Glavey, 182 U.S. at 609. We are not aware of any comparable public 

policy that requires federal employees to use all of the leave for which 

they qualify. On the contrary, employees may donate annual leave to 

other employees, 5 U.S.C. § 6332 (2006), or forfeit leave by not using it, 

see, e.g., id. § 6304 (2006 & Supp. IV 2010). In any event, reading the 

word “entitled” to mean “required” would not support a rule that employees must use leave under section 6323(b) before they may use leave 

under section 6323(a), because section 6323(a) also states that employees 

are “entitled” to leave under its provisions. Thus, the word “entitled” 

provides no basis for requiring an employee to exhaust section 6323(b) 

leave before using leave under section 6323(a).5

Second, OPM (along with DoD) contends that an exhaustion requirement is mandated by section 6323(b)’s admonition that leave under its 

provisions is “without loss of, or reduction in, pay, leave to which [the 

employee] otherwise is entitled, credit for time or service, or performance 

or efficiency rating.” 5 U.S.C. § 6323(b); see OPM Views Letter at 3; 

DoD Views Letter at 2. OPM and DoD maintain that requiring an employee to use all available leave under section 6323(b) before using leave 

under section 6323(a) is necessary to prevent “loss of” or “reduction in” 

section 6323(a) leave, which is “leave to which [the employee] otherwise 

is entitled.” OPM Views Letter at 3; DoD Views Letter at 2. That position, however, is based on the faulty premise that a reservist loses or 

suffers a reduction in section 6323(a) leave by taking that leave.

The use of leave is not a loss of leave. The word “loss” means a “deprivation” or a “decrease in amount, magnitude, or degree.” Webster’s 

Dictionary at 1338; accord Random House Dictionary at 1137. Similarly, 

the word “reduction” generally means “a decrease in size, amount, extent, or number,” a “diminution,” a “limitation in scope,” or some other 

“restriction.” Webster’s Dictionary at 1905; accord Random House Dic-

 5 OPM also points out that entitlements may be conditioned on the satisfaction of statutory prerequisites, so that even though section 6323(a) states that an employee is “entitled” to leave, the employee may not be able to take that leave unless he or she satisfies 

certain conditions, such as first exhausting other available leave. OPM Views Letter at 3. 

We agree that entitlements may be conditional, but, as discussed above, nothing in the 

text of section 6323 conditions the use of leave under section 6323(a) on exhaustion of 

leave under section 6323(b).
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

139

tionary at 1618. An employee’s voluntary decision to take leave under 

section 6323(a) for the purposes for which it is provided is not a “deprivation” of, “diminution” in, or other “limitation” or “restriction” on that 

leave. Thus, just as an employee does not suffer a “loss of ” or “reduction 

in” annual leave when the employee chooses to take such leave to go on 

vacation, an employee does not suffer a “loss of” or “reduction in” section 6323(a) leave when the employee chooses to take that leave, rather 

than leave under section 6323(b), to perform military service.

In fact, a requirement that employees use section 6323(b) leave before 

using section 6323(a) leave may itself contravene the prohibition against 

loss of, or reduction in, other leave. Requiring an employee to exhaust 

available leave under section 6323(b) before using leave under section 

6323(a) can be viewed as a “reduction in” section 6323(a) leave. The 

exhaustion requirement can be seen as a “limitation” or “restriction” on 

section 6323(a) leave because it mandates that employees first use another, less desirable form of leave. Moreover, at least in some cases, an 

exhaustion requirement might result in an employee’s actual “loss of ” 

section 6323(a) leave. As the VA points out, reservists are permitted to 

carry forward no more than 15 days of section 6323(a) leave into the next 

fiscal year. Opinion Request at 6. Thus, if 15 days before the end of the 

fiscal year a reservist with a leave balance under section 6323(a) of 30 

days were called to participate in active duty that qualified for leave under 

both section 6323(a) and section 6323(b), and the reservist were required 

by the exhaustion requirement to use section 6323(b) leave for those 15 

days, the reservist would forfeit 15 days of section 6323(a) leave. Id.

Absent an exhaustion requirement, the reservist could use those 15 days 

of section 6323(a) leave rather than forfeiting them.

Even assuming the existence of some ambiguity about whether section 

6323’s text imposes an exhaustion requirement, we would resolve that 

ambiguity by declining to read the statute to contain such a requirement. 

Section 6323 provides benefits for federal employees who perform military service, and it is well established that “provisions for benefits to 

members of the Armed Services are to be construed in the beneficiaries’ 

favor.” Henderson, 131 S. Ct. at 1206 (quoting King v. St. Vincent’s 

Hosp., 502 U.S. 215, 220–21 n.9 (1991)); see also, e.g., Fishgold v. 

Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (observing 

that the Selective Training and Service Act of 1940 should “be liberally 

construed for the benefit of those who left private life to serve their coun-
36 Op. O.L.C. 129 (2012)

140

try in its hour of great need”). Accordingly, we conclude that the statutory 

text does not require that employees exhaust leave under section 6323(b) 

before using leave under section 6323(a).

B.

The legislative and drafting history of section 6323(b) confirms our 

interpretation of the statute’s text. The committee reports and floor 

statements accompanying section 6323(b)’s enactment make clear that it 

was intended to supplement existing leave under section 6323(a), not to 

displace or restrict it. The committee reports and individual Members of 

Congress consistently described section 6323(b) as providing “additional” leave, above and beyond the military leave already provided by 

section 6323(a). See, e.g., H.R. Rep. No. 90-1560, at 2, 6; S. Rep. No. 

90-1443, at 1; 114 Cong. Rec. at 19,388 (statement of Rep. Henderson); 

114 Cong. Rec. at 19,389 (statement of Rep. Corbett); 114 Cong. Rec. at 

22,496 (description of legislation by Senate’s Assistant Legislative 

Clerk); 114 Cong. Rec. at 27,321 (statement of Rep. Dulski); 114 Cong. 

Rec. at 29,633 (statement of Sen. Mansfield).

The House Committee Report explained that, although reservists were 

already “entitled to leave, not in excess of 15 days in a calendar year, for 

active duty,” “[t]he 15 days generally [were] sufficient to cover only the 

statutory required participation during each year by such employees in 

training.” H.R. Rep. No. 90-1560, at 3. As a result, reservists who were 

called to perform further military duties—for example, to help quell the 

civil disturbances in the spring of 1968—were forced to take annual leave 

or leave without civilian pay for some of their military service. See id. at 

2–3; 114 Cong. Rec. at 11,114 (statement of Rep. Machen) (“A number of 

members of the Maryland National Guard who are Federal employees 

informed me that because of their activation for civil disturbance duty 

they would be forced to take annual leave later this year when they go 

into their 2-week annual training periods.”). Section 6323(b) was enacted 

to provide “more military leave” in order to “correct this inequity.” 114 

Cong. Rec. at 19,390 (statement of Rep. Machen); id. at 11,114 (same); 

see H.R. Rep. No. 90-1560, at 2–4 (stating that the “additional leave” 

provided by section 6323(b) would alleviate the “personal inconvenience” 

and “financial hardship” caused by the inadequacy of existing military 

leave).
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

141

The legislative history’s discussion of the language “without loss of, 

or reduction in, . . . leave to which [the employee] otherwise is entitled,” 

5 U.S.C. § 6323(b), in no way suggests that this language was intended 

to impose a requirement that employees exhaust other available leave 

before using leave under section 6323(b). The sole reference to the 

language appears in the House Committee Report, which stated that

[t]he leave to be granted under [section 6323(b)] is to be granted 

without loss or reduction in pay; leave to which [the employee] 

otherwise is entitled, whether annual leave, sick leave, or military 

training leave; credit for time or service; or performance or efficiency rating.

H.R. Rep. No. 90-1560, at 6. The phrasing in the Report suggests that the 

prohibition on loss of or reduction in leave becomes relevant only once 

leave is “granted” and thus does not impose a requirement that an employee request section 6323(b) leave whenever entitled to it or before 

using other leave. In addition, the Report suggests that the qualification 

“without loss of, or reduction in,” applies to leave in the same manner that 

it applies to pay, credit for time or service, and performance or efficiency 

rating, and the concept of exhaustion makes no sense with respect to the 

latter items. For these reasons, the Report supports the conclusion drawn 

from the statutory text—that the phrase is best and most naturally read as 

protecting employees from being deprived of other leave (or being otherwise penalized) when they use leave under section 6323(b).

This interpretation of the statutory language is confirmed by the drafting history of section 6323(b). An earlier version of the legislation did not 

contain language prohibiting loss of or reduction in “leave to which [the 

employee] otherwise is entitled” but stated only that section 6323(b) leave 

would be “without loss of pay, time, or efficiency rating.” H.R. 2635, 

90th Cong. (1967). The Civil Service Commission recommended various 

technical changes to that version of the bill, including modifications to 

“mak[e] clear that leave provided by it is in addition to military leave 

provided by [section 6323(a)].” H.R. Rep. No. 90-1560, at 12 (Letter for 

L. Mendel Rivers, Chairman, House Committee on Armed Services, from 

John M. Macy, Jr., Chairman, Civil Service Commission (Apr. 19, 1968))

(emphasis added). The House Committee on the Post Office and Civil 

Service subsequently reported a new version of the legislation, which for 

the first time contained the phrase “without loss of or reduction in . . . 
36 Op. O.L.C. 129 (2012)

142

leave to which [the employee] otherwise is entitled.” Id. at 6. The Committee Report explained that the Civil Service Commission’s recommendations had been “embodied” in the changes that the Committee had made 

to the bill. Id. at 2. Thus, the drafting history suggests that the phrase 

“without loss of, or reduction in, . . . pay to which [the employee] otherwise is entitled” was intended to clarify that section 6323(b) leave is 

supplemental to other available leave, not to impose an exhaustion requirement.

OPM and DoD maintain that the legislative history supports the inference of an exhaustion requirement because, at the end of its discussion of 

the provisions added by the 1968 legislation, the House Committee Report 

states that “[t]he granting of leave and the reduction in civilian pay under 

these provisions are mandatory, and neither the agency nor the employee 

will have any discretion in this regard as to the application of the provisions involved.” H.R. Rep. No. 90-1560, at 7; see OPM Views Letter at 

4–5; DoD Views Letter at 2. In our view, this passage does not suggest 

that section 6323(b) contains an exhaustion requirement or make the 

“requesting” of leave mandatory. It states that the “granting” of leave is 

mandatory, which indicates only that an agency must grant leave if an 

employee requests it. The passage also says that “neither the agency nor 

the employee will have any discretion in this regard as to the application 

of the provisions involved.” H.R. Rep. No. 90-1560, at 7 (emphasis added). But the statement that the employee lacks discretion appears to refer 

to the fact that an employee who chooses to take section 6323(b) leave 

must accept “the reduction in civilian pay” mandated by section 5519, not 

to require employees to request leave whenever they are entitled to it. 

Accordingly, the legislative and drafting history does not suggest that 

section 6323(b) contains an exhaustion requirement.

C.

Related statutory provisions also support the conclusion that section 

6323(b) does not contain an exhaustion requirement. Generally, other 

statutes providing for leave do not require an employee to use one type of 

leave before, or instead of, another if the employee’s activity qualifies for 

multiple types of leave.

For example, employees are “entitled” to annual leave under 5 U.S.C. 

§ 6303 (2006) and sick leave under 5 U.S.C. § 6307 (2006). When an 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

143

employee qualifies for both annual and sick leave for the same time 

period, the employee is not required to exhaust one type of leave before 

using the other. See 5 C.F.R. § 630.401(a) (2011) (stating that an employing agency “must” grant sick leave if an employee meets specified criteria); General Accounting Office, GAO/OGC-96-6, Civilian Personnel 

Law Manual, Title II—Leave at 2-15 (4th ed. 1996) (noting that “[a]n 

absence which is otherwise chargeable to sick leave may be charged to 

annual leave if the employee so requests and the agency agrees”).

The same interpretation and practice are followed under statutes that, 

like section 6323(b), state that leave under their provisions is “without 

loss of, or reduction in, . . . leave to which [the employee] otherwise is 

entitled.”6 For example, 5 U.S.C. § 6323(d)(1) (2006) provides that a 

military reserve technician 

is entitled at such person’s request to leave without loss of, or reduction in, pay, leave to which such person is otherwise entitled, credit 

for time or service, or performance or efficiency rating, for each day, 

not to exceed 44 workdays in a calendar year, in which such person 

is on active duty without pay . . . for participation in operations outside the United States, its territories and possessions. 

DoD guidance, with which OPM has expressed its agreement, makes 

clear that a military reserve technician may choose to use other forms of 

leave, including annual leave and leave under section 6323(a), before 

using section 6323(d)(1) leave. See Memorandum for Human Resources 

Offices and Civilian Personnel Offices from Earl T. Payne, Director, 

Civilian Personnel Management Service, DoD, Subject: Military Leave

att. 2, at 2–3 (Apr. 2, 1996) (“1996 DoD Memorandum”); Memorandum 

to Directors of Personnel from Office of Compensation Policy, OPM, 

Subject: Military Leave (Apr. 24, 1996). That conclusion is confirmed by 

 6 Many of these provisions, unlike section 6323(b), do not entail a concomitant reduction in pay. An employee therefore has little or no incentive to substitute another type of 

leave for the leave provided, as he or she does in the case of section 6323(b) leave. In our 

view, however, the salient fact about these provisions is that an employee retains the right 

to make such a substitution notwithstanding the fact that the provisions contain the same 

admonition as section 6323(b) that the leave provided is “without loss of, or reduction in,” 

other types of leave.
36 Op. O.L.C. 129 (2012)

144

section 6323(d)(1)’s text, which states that leave under its provisions is 

“at [the technician’s] request.”7

Similarly, 5 U.S.C. § 6326 (2006), which was enacted by the same law 

as section 6323(b), see Pub. L. No. 90-588, §§ 1(a), 2(a), 82 Stat. at 1151, 

provides that an employee is 

entitled to not more than three days of leave without loss of, or reduction in, pay, leave to which he is otherwise entitled, credit for 

time or service, or performance or efficiency rating, to make arrangements for, or attend the funeral of, or memorial service for, an 

immediate relative who died as a result of wounds, disease, or injury 

incurred while serving as a member of the Armed Forces in a combat 

zone. 

OPM guidance on section 6326 does not require that an employee exhaust available section 6326 leave before using annual leave or another 

applicable type of leave. See OPM, Leave for Funerals and Bereavement, 

Funeral Leave for Combat-Related Death of an Immediate Relative, 

http://opm.gov/oca/leave/HTML/Funeral.asp (last visited ca. Apr. 2012). 

Moreover, OPM’s regulations suggest that an employee may use other 

types of leave before, or instead of, taking leave under section 6326, 

because the regulations provide that section 6326 leave shall be granted 

“as is needed and requested by” the employee. 5 C.F.R. § 630.804 

(2011).8

 7 Although, unlike section 6323(d)(1), section 6323(b) does not expressly state that its 

leave is “at [the employee’s] request,” the absence of that language does not imply that 

section 6323(b) leave is mandatory. Section 6323(b) and section 6323(d)(1) were 

enacted by separate laws, 28 years apart. Compare Pub. L. No. 90-588, § 2(a), 82 Stat. at 

1151 (originally enacting what is now section 6323(b), as amended), with NDAA for FY 

1996, § 1039, 110 Stat. at 432–33 (originally enacting section 6323(d)(1)). In those 

circumstances, the presumption that Congress acts intentionally when it includes language in one section of a statute but omits it in another section of the same act does not 

apply. See Johnson v. United States, 130 S. Ct. 1265, 1272–73 (2010). Moreover, leave 

statutes generally do not include language stating that leave is “at [the employee’s] 

request” even when the leave provided is voluntary rather than mandatory. See, e.g., 

5 U.S.C. § 6303 (annual leave); 5 U.S.C. § 6307 (sick leave).

8 OPM guidance on 5 U.S.C. § 6328 (2006)—which provides that “[a] Federal law 

enforcement officer or a Federal firefighter may be excused from duty without loss of, or 

reduction in, pay or leave to which such officer is otherwise entitled, or credit for time or 

service, or performance or efficiency rating, to attend the funeral of a fellow Federal law 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

145

OPM guidance on 5 U.S.C. § 6327 (2006) also suggests that an employee may choose which type of applicable leave he or she wants to use. 

That statute provides that an employee is “entitled to leave without loss 

of or reduction in pay, leave to which [the employee is] otherwise entitled, credit for time or service, or performance or efficiency rating, for 

the time,” up to certain annual limits, “necessary to permit such employee to serve as a bone-marrow or organ donor.” Id. OPM’s guidance states 

that an employee “may,” rather than “must,” use section 6327 leave and 

that such leave “is in addition to annual leave and sick leave.” OPM, 

Bone Marrow or Organ Donor Leave, http://www.opm.gov/oca/leave/

html/DONOR.asp (last visited ca. Apr. 2012).

9

 

enforcement officer or Federal firefighter, who was killed in the line of duty”—also gives 

no indication that section 6328’s funeral leave must be used instead of annual leave or 

other applicable types of leave. See OPM, Leave for Funerals and Bereavement, Funeral 

Leave for First Responders, http://opm.gov/oca/leave/HTML/Funeral.asp (last visited ca. 

Apr. 2012).

9 We are aware of only one leave statute that may not permit employees to choose 

among multiple available types of leave. Under 5 U.S.C. § 6322 (2006), an employee is 

“entitled to leave without loss in, or reduction in, pay, leave to which he otherwise is 

entitled, credit for time or service, or performance or efficiency rating” for jury service 

or service as a witness in certain cases to which the government is a party. OPM’s 

guidance on section 6322 does not state that an employee must use leave under that 

section rather than other applicable leave, see OPM, Court Leave, http://www.opm.gov/

oca/leave/HTML/courtlv.asp (last visited ca. Apr. 2012), but the Comptroller General 

has concluded that, where applicable, leave under section 6322 must be used, rather than 

annual leave. See, e.g., Mr. Thomas, B-119969, 1969 WL 4324, at *2 (Comp. Gen. Mar. 

21, 1969) (“1969 CG Letter”); Richard A. Gresham, B-119969, 1955 WL 1962, at *1 

(Comp. Gen. Mar. 3, 1955) (“1955 CG Letter”); Witnesses; Jurors—Government Employees—Compensation, etc., 27 Comp. Gen. 83, 87–88 (1947). The Comptroller General based that conclusion, however, on analyses of earlier, different versions of the 

statute, which also differed from section 6323(b). See 1955 CG Letter at *1 (quoting 

section 1 of Public Law 76-676, 54 Stat. 689, 689, which provided that time for jury 

service “shall not . . . be deducted from the time allowed for any leave of absence 

authorized by law”); 1969 CG Letter at 2 (quoting 5 U.S.C. § 6322 (Supp. IV 1968), 

which provided that “[t]he period of absence for jury service is without deduction from 

other leave of absence authorized by statute”). We have found no Comptroller General 

guidance attempting to reconcile this interpretation of section 6322 with the current 

statutory language. In fact and to the contrary, a 1981 Comptroller General opinion 

concluded that section 6322’s prohibition on “loss of, or reduction in, . . . leave to which 

[the employee] otherwise is entitled” “specifically prohibited” a forfeiture of annual 

leave that resulted when an agency required an employee to use leave under section 6322 

instead of “use it or lose it” annual leave. George J. DiGiulio—Restoration of Forfeited 
36 Op. O.L.C. 129 (2012)

146

In sum, we believe that Congress expected that, like most leave statutes, section 6323(b) would be interpreted to allow employees to choose 

between using leave under its provisions and using other applicable types 

of leave.

D.

Interpreting section 6323(b) to contain an exhaustion requirement 

would also be contrary to the purposes underlying the statute. As discussed above, Congress enacted section 6323(b) to supplement the existing 15 days of military leave provided in section 6323(a) and to alleviate 

the financial hardship of employees who were being forced to take leave 

without civilian pay when they performed military duty in excess of those 

15 days. See supra Part II.B (discussing legislative history). Requiring 

employees to exhaust section 6323(b) leave before using leave under 

section 6323(a) would frustrate those purposes in two ways.

First, interpreting section 6323(b) to contain an exhaustion requirement 

would undermine Congress’s intent to supplement the leave granted under 

section 6323(a). An exhaustion requirement would reduce the value of 

section 6323(a) leave by making it subject to an additional limitation—

that it may not be used until after an alternative, less favorable form of 

leave has been used. Moreover, as described above, an exhaustion requirement could cause some employees to forfeit section 6323(a) leave 

that they could otherwise have used. See supra p. 139. Those consequences would conflict both with Congress’s intent that section 6323(b) supplement existing leave and with the specific statutory admonition that 

section 6323(b) not trigger any “loss of, or reduction in” other leave to 

which employees are entitled.

Second, reading section 6323(b) to contain an exhaustion requirement 

would undermine Congress’s intent to alleviate the financial hardship 

faced by employees who perform military duty, because it would put

some of those employees in a worse financial position than before section 

6323(b) was enacted. For employees whose military pay exceeds their 

 

Annual Leave, B-201093, 1981 WL 22549, at *2–3, *4 (Comp. Gen. July 15, 1981). In 

any event, the Comptroller General’s construction of section 6322 would not determine 

the proper interpretation of section 6323(b).
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

147

civilian pay, taking section 6323(b) leave does not provide a significant 

financial advantage over taking leave without civilian pay, because, in 

either scenario, the employees receive only military pay.10 Taking section 

6323(a) leave, in contrast, provides a significant financial advantage over 

taking leave without civilian pay, because employees on section 6323(a) 

leave receive both civilian pay and military pay. As a result, a requirement that employees exhaust section 6323(b) leave before using section 

6323(a) leave could increase the financial hardship of some employees 

whose military pay exceeds their civilian pay. For example, before section 

6323(b) was enacted, if such employees were called to active duty to aid 

in law enforcement for 20 days, they could receive both military and 

civilian pay for the first 15 days and then military pay alone for the five 

remaining days (while on leave without civilian pay). If section 6323(b) 

were interpreted to contain an exhaustion requirement, those employees 

would now be required to use section 6323(b) leave for the entire 20 days, 

during which time they would receive only military pay.11 It is doubtful 

that Congress intended that result.

E.

In support of their view that section 6323(b) contains an exhaustion 

requirement, OPM and DoD rely in significant part on developments 

subsequent to the statute’s original enactment. See OPM Views Letter at 

5–6; DoD Views Letter at 2–3. In particular, they point to the statutory 

language added in 1996, which states that, at an employee’s request, an 

absence that qualifies for leave under section 6323(b) may instead “be 

 10 In some situations, if an employee’s military service is of especially long duration, 

taking leave under section 6323(b) might provide a slight financial advantage because 

extended periods of leave without pay can adversely affect an employee’s right to benefits. See OPM, Effect of Extended Leave Without Pay (LWOP) (or Other Nonpay Status) 

on Federal Benefits and Programs, http://www.opm.gov/oca/leave/html/LWOP_eff.asp

(last visited ca. Apr. 2012).

11 If those employees also performed their 15 days of annual training later in the same 

fiscal year, then the financial disadvantage would be minimal, because the employees 

would have to use leave without civilian pay, rather than section 6323(a) leave, for the 

training period. Even in that situation, however, an exhaustion requirement would deprive 

the employees of the opportunity to choose which ordering of leave was most advantageous in light of all their financial and other personal circumstances.
36 Op. O.L.C. 129 (2012)

148

charged to the employee’s accrued annual leave or to compensatory time 

available to the employee,” but “[t]he period of absence may not be 

charged to sick leave.” 5 U.S.C. § 6323(b) (as amended by the NDAA for 

FY 1996, § 516(a), 110 Stat. at 309). OPM and DoD reason that, by 

adding this language, which makes clear that employees need not exhaust 

section 6323(b) leave before using annual leave or compensatory time, 

Congress must have intended that employees be required to exhaust leave 

under section 6323(b) before using any type of leave not specified in the 

amendment, including leave under section 6323(a). See OPM Views 

Letter at 5–6; DoD Views Letter at 2–3.

We do not believe, however, that it is appropriate to draw that negative 

inference from the 1996 amendment. Although the 1996 amendment 

expressly permits use of annual leave or compensatory time instead of 

section 6323(b) leave without mentioning section 6323(a) leave, the 

amendment likewise expressly prohibits use of sick leave instead of 

section 6323(b) leave without mentioning section 6323(a) leave. As a 

result, one could draw a negative inference from the amendment in either 

direction—that using section 6323(a) leave in lieu of section 6323(b) 

leave is not permitted, because of the express permission granted for 

annual leave, or that using section 6323(a) leave is not prohibited, because 

of the express prohibition regarding sick leave. Because it is not possible 

to draw both of those contradictory inferences, we think it is not appropriate to draw either. Moreover, inferring from Congress’s silence a requirement that reservists must exhaust section 6323(b) leave before using 

section 6323(a) leave would be contrary to the well-established principle, 

discussed above, that provisions governing benefits for individuals who 

perform military service must be construed in the beneficiaries’ favor. 

Accordingly, the 1996 language should be read to mean only what it says: 

Reservists may choose to use annual leave or compensatory time in lieu of 

section 6323(b) leave, and they may not choose to use sick leave. The 

1996 amendment simply does not address whether reservists may use 

other types of leave, such as section 6323(a) leave, instead of or before 

using section 6323(b) leave.

OPM and DoD nonetheless suggest that, because the Comptroller General had interpreted section 6323(b) to require exhaustion before use of all 

other types of leave, and the 1996 amendment addressed only whether 

exhaustion is required before use of annual leave and compensatory time, 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

149

Congress’s failure to address whether exhaustion is required before use 

of other types of leave, including leave under section 6323(a), should be 

construed as ratifying the exhaustion requirement as applied to those 

types of leave. See OPM Views Letter at 5; DoD Views Letter at 2. 

Although the Supreme Court has sometimes found that Congress has 

ratified or acquiesced in a prior judicial or administrative interpretation 

by reenacting the statutory language on which that interpretation was 

based, that principle does not apply here.

Recent Supreme Court cases make clear that the concept of congressional acquiescence in prior statutory interpretations must be applied 

“with extreme care” and that courts should conclude that Congress has 

ratified a prior administrative interpretation only if there is “overwhelming evidence of acquiescence” in the agency’s interpretation. 

Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169–

70 & n.5 (2001). The circumstances surrounding the 1996 amendment 

to section 6323(b) do not present “overwhelming” evidence of congressional ratification. Indeed, several requirements for congressional 

ratification identified in the Court’s recent cases are not satisfied.

First, ratification occurs only when Congress has reenacted without 

change the precise language that was the subject of the prior interpretation. See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 

349 (2005); United States v. Wells, 519 U.S. 482, 495–96 (1997); Estate 

of Cowart v. Nicklas Drilling Co., 505 U.S. 469, 478 (1992). The 1996 

amendment did not reenact the language on which the Comptroller General based his 1969 interpretation (“without loss of, or reduction in, . . . 

leave to which he otherwise is entitled”); instead, the amendment added 

new language making clear that exhaustion of section 6323(b) leave is not 

required before use of annual leave or compensatory time, a result that is 

inconsistent with the reasoning in the Comptroller General’s opinion.

Second, the Court’s cases indicate that courts should find ratification 

only when “the record of congressional discussion preceding reenactment 

makes” some “reference” to the prior interpretation or there is “other 

evidence to suggest that Congress was . . . aware of ” that interpretation. 

Brown v. Gardner, 513 U.S. 115, 121 (1994); see also Solid Waste Agency, 531 U.S. at 169 n.5 (suggesting that the legislative record must show 

that Congress considered the “precise issue”). Nothing in the legislative 
36 Op. O.L.C. 129 (2012)

150

history of the 1996 amendment, however, indicates that Congress was 

aware of a requirement that employees exhaust leave under section 

6323(b) before using leave under section 6323(a).12 The relevant committee reports simply state that, under the amendment, employees could 

“elect, when performing public safety duty, to use either military leave, 

annual leave, or compensatory time to which they are otherwise entitled.” 

S. Rep. No. 104-112, at 241 (1995); H.R. Rep. No. 104-406, at 803 

(1995); H.R. Rep. No. 104-450, at 794 (1996) (Conf. Rep.).13

 

12 DoD notes that it had consistently interpreted the statute to contain such a requirement, and it presumes that Congress was aware of its interpretation. See DoD Views 

Letter at 2. But we have not been able to locate any DoD articulation of its interpretation 

predating the 1996 amendment. On the contrary, shortly before the amendment’s enactment, DoD published its regulations implementing USERRA, one of which stated that 

“[a]n employee performing service with the uniformed services must be []permitted, upon 

request, to use any accrued annual leave (or sick leave, if appropriate), or military leave 

during such service.” 5 C.F.R. § 353.208 (1996). That regulation seems inconsistent with 

the proposition that section 6323(b) contains an exhaustion requirement, because the 

regulation states that an employee performing military service “must be []permitted, upon 

request, to use any . . . military leave during such service,” id., and “military leave” 

includes section 6323(a) leave in addition to section 6323(b) leave. OPM asserts that the 

regulation does not override the statutory conditions that generally apply to the various 

leave types and therefore would not displace any exhaustion requirement imposed by 

section 6323(b). See OPM Views Letter at 7. But even assuming that the regulation is not 

actually inconsistent with an exhaustion requirement, it provides no indication that such a 

requirement exists.

13 As DoD notes, the 1996 amendment essentially made permanent language that had 

been included in appropriations legislation for the several preceding fiscal years. See DoD 

Views Letter at 2. Nothing in the text or history of those appropriations acts shows 

congressional awareness of a requirement that an employee exhaust leave under section 

6323(b) before using leave under section 6323(a). We know of only one document 

arguably suggesting that some in Congress may have been aware of an administrative 

policy requiring such exhaustion. During 1990 hearings held by a subcommittee of the 

House Appropriations Committee, Gen. Donald Burdick, Director of the Army National 

Guard, and Maj. Gen. Philip G. Killey, Director of the Air National Guard, stated, in 

response to questions about whether military technicians could be assigned to drug 

interdiction missions in Active Duty for Special Work status, that they could, “exhausting 

first their law enforcement leave and then election of either annual leave, compensatory 

time, leave without payor unused military leave.” Dep’t of Def. Appropriations for 1991: 

Hearings Before the Subcomm. on the Dep’t of Def. of the H. Appropriations Comm., 

pt. 3, 101st Cong. 405, 506 (1990). If the phrase “law enforcement leave” was intended to 

refer to leave under section 6323(b), and the phrase “military leave” was intended to refer 

to leave under section 6323(a), then Gen. Burdick’s and Maj. Gen. Killey’s remarks may 
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b)

151

Finally, congressional ratification occurs only when the statutory language can reasonably be read to embody the prior administrative or judicial interpretation. See Brown, 513 U.S. at 121 (“[w]here the law is plain, 

subsequent reenactment does not constitute an adoption of a previous 

administrative construction” (quoting Demarest v. Manspeaker, 498 U.S. 

184, 190 (1991) (internal quotation marks omitted))). As explained above, 

the text of section 6323(b) cannot be read to impose an exhaustion requirement. See supra Part II.A. The language stating that an employee is 

entitled to section 6323(b) leave “without loss of[,] or reduction in[,] . . . 

leave to which he otherwise is entitled,” 1969 CG Opinion at 236 (quoting 

section 6323(b)), fails to support, and is arguably inconsistent with, an exhaustion requirement. See supra p. 138.

14

At most, in the 1996 amendment, Congress failed to reject the 

Comptroller General’s interpretation of section 6323(b) as applied to 

leave types other than annual leave and compensatory time. Such 

“[c]ongressional inaction lacks persuasive significance because several 

equally tenable inferences [about Congress’s intent] may be drawn 

 

have reflected their belief that reservists were required to exhaust section 6323(b) leave 

before using section 6323(a) leave. Neither witness, however, explained which statutory 

provisions they were referring to, and leave under both subsections (a) and (b) of section 

6323 is commonly called “military leave.” We think it very unlikely that any legislators 

who heard or read this testimony would have understood it to articulate the legal position 

that reservists must exhaust section 6323(b) leave before using section 6323(a) leave or 

would have retained awareness of the testimony when a different Congress amended 

section 6323(b) six years later.

14 The Supreme Court has accepted ratification arguments in only three cases over the 

past 20 years, each involving circumstances very different from those presented here. In 

Forest Grove School District v. T.A., 557 U.S. 230, 239–40 (2009), Congress had reenacted the precise language that the Supreme Court had previously interpreted. In Barnhart v. 

Walton, 535 U.S. 212, 220 (2002), Congress had “frequently amended or reenacted the 

relevant provisions without change,” and the Court viewed those reenactments only as 

“further evidence” for giving deference to the agency’s longstanding construction of its 

statute under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 

(1984). In FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143–56 (2000), the 

Court concluded that Congress had ratified the agency’s longstanding interpretation by 

enacting six pieces of legislation that were inconsistent with the agency’s recent attempt 

to alter that interpretation. Indeed, even cases from an earlier era more hospitable to 

claims of congressional ratification generally involved enactment of the precise language 

on which the prior interpretation was based, coupled with specific evidence that Congress 

was aware of the interpretation. See, e.g., Lorillard v. Pons, 434 U.S. 575, 580–82 (1978).
36 Op. O.L.C. 129 (2012)

152

from” it. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994) (internal quotation marks omitted).15

III.

For these reasons, we conclude that section 6323(b) does not contain an 

exhaustion requirement. A reservist who performs military service that 

qualifies for leave under both section 6323(a) and section 6323(b) may 

elect to take leave under section 6323(a) without first using all of his or 

her available leave under section 6323(b).

VIRGINIA A. SEITZ

Assistant Attorney General

Office of Legal Counsel

 

15 OPM and DoD do not argue that their interpretation of section 6323(b) is entitled to 

deference. Nonetheless, we considered whether, if the statute were ambiguous, their view 

would receive deference from a court under either Chevron or Skidmore v. Swift & Co., 

323 U.S. 134 (1944). But neither OPM nor DoD has “express congressional authorization[] to engage in the process of rulemaking or adjudication,” as is generally required for 

an agency to receive deference under Chevron. See United States v. Mead Corp., 533 U.S. 

218, 229 (2001). Nor would OPM and DoD’s interpretation receive significant weight 

under Skidmore. Neither OPM nor DoD is charged with administering section 6323, and 

neither OPM’s Reservist Policy Differential Guidance nor the 1996 DoD Memorandum 

articulates a thorough analysis of the exhaustion issue confronted here. Instead, both rely 

almost exclusively on the 1969 CG Opinion. See Reservist Policy Differential Guidance

at 5–6; 1996 DoD Memorandum. In any event, traditional tools of statutory construction 

demonstrate that section 6323(b) does not contain an exhaustion requirement. See Chevron, 467 U.S. at 842–43 (deference to agency is overcome where Congress has resolved 

the issue).