N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CHARLES FLYNN, Petitioner

v.

DEPARTMENT OF STATE, Respondent

______________________

2022

- 1220

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 4324

- 21

- 0367 -I- 1.

______________________

Decided: May 15, 2023

______________________

B RIAN J. L AWLER , Pilot Law, PC, San Diego, CA, argued for petitioner.

M ARGARET J ANTZEN , Commercial Litigation Branch,Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by B RIAN M. B OYNTON , C LAUDIA B URKE , P ATRICIA M. M C C ARTHY

.

______________________

Before L OURIE , H UGHES , and S TARK , Circuit Judges

. Case: 22-1220 Document: 43 Page: 1 Filed: 05/15/2023FLYNN v. DEPARTMENT OF STATE 2

H UGHES , Circuit Judge

. Charles Flynn appeals the final decision of the MeritSystems Protection Board denying his request for differential pay for his military service in the Army Reserve . Because our holdings in Adams v. Dep artment of Homeland Security

, 3 F.4th 1375 (Fed. Cir. 2021) and Nord by v. S ocial S ecurity A dministration , No. 21

- 2280 (Fed. Cir. May 11

, 2023) dictate that the entitlement to differential pay under 5 U.S.C. § 5538 (a) and 10 U.S.C. § 101(a)(13) (B) requiresthe employee to serve in a contingency operation, we affirm.

I
The facts and procedural history of th is appeal largely mirror those laid out in Nordby

. In Nordby

, the federal employee w as activated under 10 U.S.C. § 12301(d) to serve in the military . Upon conclusion of his service, he r equested differential pay to mak e up the difference between the military and civilian compensatio n. The agenc y denied the request, determining that military service under 10 U.S.C. § 12301(d) does not qualify for differential pay under 5 U.S.C. § 55 38. The Board affirmed.
Similarly, Mr. Flynn was employe d by the UnitedStates Department of State as a Special Agent in the Bureau of Diplomatic Security . He also served as Lieutenant Colonel in the United States Army Reserve. From March 2020 to March 2022 , he performed active duty under 10 U.S.C. § 1230 1 (d) at the Office of Military Commissions atthe Pentagon, providing support on a variety of legal issues. For this duty period, he requested differential pay from the agency. The agency denied his request

, determining that those called to voluntary active duty pursuant to 10 U.S.C. § 12301(d) are not entitled to differential pay under 5 U.S.C. § 5538(a ). He appealed the decision to the Merit Systems Protection Board. The Board affirmed, holding that he was not entitled to differential pay as a matter Case: 22-1220 Document: 43 Page: 2 Filed: 05/15/2023FLYNN v. DEPARTMENT OF STATE 3

of law because his activation orders under 10 U.S.C. § 12301(d) did not qualify as a contingency operation

, for which differential pay could be awarded under 5 U.S.C §5538

. Mr. Flynn now appeals.

II

We set a side the Board’s decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantia l evidence.” 5 U.S.C. § 7703(c). Legal conclusions by the Board are reviewed de

novo. Wrocklage v. Dep’t of Homeland Sec. , 769 F.3d 1363, 1366 (Fed. Cir. 2014).

III

Mr. Flynn concedes that our holding in Adams affects the outcome of this case

. Pet. Br. vi, 4– 5. He dedicates all of his argument to challenging Adams and does not purport to show how his activation under 10 U.S.C. § 12301(d) warrants a different outcome from that of Adams

. He also concedes that the petitioners in Nordby raise the same question : whether federal employees activated under 10 U.S.C. § 12301(d) are entitled to differential pay under 5 U.S.C. § 5538(a)

. Pet. Br. vi, 5

. T he factual and procedural similarities between Nordby and this case compel us to reach the same outcome here. To receive differential pay, an employee “must haveserved pursuant to a call to active duty that meets the statutory definition of contingency operation.” Adams

, 3 F.4th at 1378; Nordby , No. 21

- 2280 . slip op. at 4

. And for vol untary activation under 10 U.S.C. § 12301(d) to qualify as acontingency operation, “there must be a connection between the voluntary military service and the declared national emergency.” Nordby , No. 21

- 2280 . slip op. at 5 . But Mr. Flynn has not alleged a ny connection between his Case: 22-1220 Document: 43 Page: 3 Filed: 05/15/2023FLYNN v. DEPARTMENT OF STATE 4

service and an ongoing national emergency , and thus failed
to demonstrate that his voluntary, active service under 10 U.S.C. § 12301(d) met the statutory definition of a contingency operation. Accordingly, we hold that the Board

p roperly denied differential pay and affirm the decision of the Board.

AFFIRMED

C OSTS

No costs

. Case: 22-1220 Document: 43 Page: 4 Filed: 05/15/2023