UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ARMANDO SANTIAGO,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-4324-20-0796-I-1

DATE: August 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Keta J. Barnes, Durham, North Carolina, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

granted in part and denied in part the appellant’s request for corrective action 

under the Uniformed Services Employment and Reemployment Rights Act

(USERRA). For the reasons discussed below, we GRANT the agency’s petition 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

for review, and REVERSE the portion of the initial decision that found the 

appellant was entitled to differential pay under 5 U.S.C. § 5538(a). The initial 

decision is otherwise AFFIRMED. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 Generally, an employee making a USERRA claim under 38 U.S.C. § 4311

must show that (1) he was denied a benefit of employment, and (2) his military 

service was a substantial or motivating factor in the denial of such a benefit. 

Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). 

However, in a case such as this one, where the benefit in question is available 

only to members of the military, element (2) is redundant, and it is unnecessary 

for the employee to make an additional showing that his military service was a 

substantial or motivating factor. See Adams v. Department of Homeland Security, 

3 F.4th 1375, 1377-78 (Fed. Cir. 2021), certiorari denied, 142 S. Ct. 2835 (2022); 

Butterbaugh v. Department of Justice, 336 F.3d 1332, 1336 (Fed. Cir. 2003). 

Thus, the only issue to be decided in this case is whether the appellant was 

entitled to differential pay under 5 U.S.C. § 5538(a) based on his active duty 

service from October 8, 2018, through February 22, 2019. 

¶3 Title 5 U.S.C. § 5538(a) provides, in relevant part:

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 to [differential pay].

The administrative judge found that, whereas the appellant was entitled to 

additional military leave under 5 U.S.C. § 6323(b) only if he served “in support 

of a contingency operation,” 5 U.S.C. § 5538(a) includes no such requirement. 

Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 9. Accordingly, in 

addressing the appellant’s entitlement to differential pay, the administrative judge 

did not consider whether the appellant was performing active duty in or in 

support of a contingency operation. ID at 9-10. However, as the agency observes 
3

on review, 10 U.S.C. § 101(a)(13) defines the term “contingency operation,” and 

the provisions of law listed at 10 U.S.C. § 101(a)(13)(B) are part of that 

definition. Hence, the agency argues, the appellant is entitled to differential pay 

under 5 U.S.C. § 5538(a) only if he served active duty in a contingency operation. 

Petition for Review (PFR) File, Tab 1 at 6-9. 

¶4 Our reviewing court has since endorsed the agency’s interpretation. In 

Adams, the court examined the relevant statutory provisions and concluded that 

for a claimant to be entitled to differential pay under 5 U.S.C. § 5538(a), the 

claimant “must have served pursuant to a call to active duty that meets the 

statutory definition of contingency operation.” Adams, 3 F.4th at 1378. Thus, 

contrary to the administrative judge’s analysis, the requirements for entitlement 

to differential pay under section 5538(a) are stricter than those for entitlement to 

additional leave under section 6323(b). Whereas claimants may be entitled to 

benefits under section 6323 if they were called to duty “in support” of a 

contingency operation, differential pay under section 5538(a) is available only to 

claimants who were directly called to serve in a contingency operation. Adams, 

3 F.4th at 1379 & n.1. Accordingly, to establish his entitlement to differential 

pay under 5 U.S.C. § 5538, the appellant must show that he served active duty in 

a contingency operation, as defined at 10 U.S.C. § 101(13)(B). 

¶5 As relevant here, 10 U.S.C. § 101(a)(13)(B) defines the term “contingency 

operation” to include: 

[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, 12405, 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 .

Id. (emphasis added). Our reviewing court has held that the use of the term “any” 

indicates that the list of statutory provisions is nonexhaustive and that the phrase 

“other provision[s] of law” should be interpreted broadly. O’Farrell v. 

Department of Defense, 882 F.3d 1080, 1084-85 (Fed. Cir. 2018). In this case, 
4

the appellant was ordered to active duty under 10 U.S.C. § 12301(d), which is not 

one of the specific provisions listed in the definition. IAF, Tab 5 at 6. The 

appellant argued, and the administrative judge agreed, that the appellant’s service 

nonetheless falls under the catch-all provision of 10 U.S.C. § 101(a)(13)(B), as he 

was called to active duty “under a provision of law,” namely 10 U.S.C. 

§ 12301(d), and a national emergency has been in effect since September 11, 

2001. ID at 9-10; see 84 Fed. Reg. 48545 (Sept. 12, 2019) (declaration of the 

President continuing the national emergency for the year 2019-2020). 

¶6 However, while our reviewing court has held that the catch-all provision of 

10 U.S.C. § 101(a)(13)(B) should be read broadly, it has declined to read the 

statute so expansively that any reservist called to duty during a national 

emergency would be deemed to be performing a contingency operation. Adams, 

3 F.4th at 1379; 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). Rather, the court has found that the term “any other 

provision of law” must be read in the context of the enumerated statutes listed in 

10 U.S.C. § 101(a)(13)(B), which all involve some connection to the declared 

national emergency. Adams, 3 F.4th at 1380 (citing 10 U.S.C. §§ 688(c), 

12031(a), 12302, 12304, 12305, 12406 & chapter 13, and 14 U.S.C. § 3713). The 

court observed that, in contrast to the enumerated statutes, section 12301(d) 

makes no reference to a national emergency, but authorizes the activation of 

reservists “at any time . . . with the consent of that member.” Adams, 3 F.4th 

at 1380. Applying the principle of esjudem generis,

2

the court concluded that it 

was “implausible that Congress intended for the phrase ‘any other provision of 

law during a war or national emergency’ to necessarily include § 12301(d) 

 

2 Under the principle of esjudem 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.” Circuit

City Stores, Incorporated v. Adams, 532 U.S. 105, 114 (2001) (quoting 2A N. Singer, 

Sutherland on Statutes and Statutory Construction, § 47.15 (1991)). 
5

voluntary duty that was unconnected to the emergency at hand.” Adams, 3 F.4th 

at 1380.

¶7 The court further observed that its reading of the statute is consistent with 

Office of Personnel Management (OPM) guidance, which explicitly provides that 

duty qualifying for differential pay “does not include voluntary active duty under 

10 U.S.C. § 12301(d).” Id. (quoting OPM, Policy Guidance Regarding

Reservist Differential under 5 U.S.C. § 5538 (OPM Guidance), 18 (June 2015), ht

tps://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/reservistdifferential/policyguidance.pdf). The court further noted that OPM’s guidance 

explains that the 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.” OPM Guidance at 22. Here, as in Adams, the appellant does not allege 

that he was ordered to perform such service. See Adams, 3 F.4th at 1380.

¶8 Finally, we note that in finding that the appellant was not entitled to 

additional leave under 5 U.S.C. § 6323(a), which limits the benefit to employees 

who were absent for military service “as a result of a call or order to active duty 

in support of a contingency operation,” the administrative judge found that the 

appellant’s training was not even “in support” of a contingency operation—much 

less part of a contingency operation itself. ID at 7-8. The appellant does not 

dispute that finding on review, instead arguing that entitlement to differential pay 

under 5 U.S.C. § 5538(a) does not require that the claimant have been called to 

duty in or in support of a contingency operation. However, as discussed above, 

our reviewing court has explicitly rejected that interpretation of the statute.
6

¶9 In sum, we find that the appellant is not entitled to differential pay under 

5 U.S.C. § 5538(a).3 Accordingly, we reverse the portion of the initial decision 

that granted corrective action regarding the appellant’s claim for differential pay. 

The initial decision is otherwise affirmed. 

NOTICE OF APPEAL RIGHTS

4

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

 

3 Having so found, we need not address the agency’s remaining arguments. 

Accordingly, we do not make any findings regarding the analysis in then-Member 

Robbins’s separate opinion in Marquiz v. Department of Defense, 123 M.S.P.R. 479 

(2016) (nonprecedential split vote). 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 
8

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 
9

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
10

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board