NOTE: This disposition is nonprecedential.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

______________________ 

BRIAN J. LAWLER, Pilot Law, PC, San Diego, CA, argued 

for petitioner. 

 MARGARET JANTZEN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY. 

 ______________________ 

Before LOURIE, HUGHES, and STARK, Circuit Judges.

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

HUGHES, Circuit Judge. 

Charles Flynn appeals the final decision of the Merit 

Systems Protection Board denying his request for differential pay for his military service in the Army Reserve. Because our holdings in Adams v. Department of Homeland 

Security, 3 F.4th 1375 (Fed. Cir. 2021) and Nordby v. Social 

Security Administration, 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) requires 

the employee to serve in a contingency operation, we affirm. 

I 

The facts and procedural history of this appeal largely 

mirror those laid out in Nordby. In Nordby, the federal employee was activated under 10 U.S.C. § 12301(d) to serve in 

the military. Upon conclusion of his service, he requested 

differential pay to make up the difference between the military and civilian compensation. The agency 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. § 5538. The Board affirmed. 

Similarly, Mr. Flynn was employed by the United 

States 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. § 12301 (d) at the Office of Military Commissions at 

the 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: 05/15/2023
FLYNN 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 aside 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 substantial 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. 

The factual and procedural similarities between 

Nordby and this case compel us to reach the same outcome 

here. To receive differential pay, an employee “must have 

served 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 voluntary activation under 10 U.S.C. § 12301(d) to qualify as a 

contingency 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 any connection between his 

Case: 22-1220 Document: 43 Page: 3 Filed: 05/15/2023
4 FLYNN v. DEPARTMENT OF STATE

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 

properly denied differential pay and affirm the decision of 

the Board. 

AFFIRMED 

COSTS

No costs. 

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