b'Entitlement to Reservist Differential Pay Under\nPre-Amendment Version of 5 U.S.C. \xc2\xa7 5538\nUnder the pre-amendment version of 5 U.S.C. \xc2\xa7 5538, covered employees may receive\nreservist differential pay not only for pay periods that occur when they are serving on\nactive duty, but also for those pay periods that fall within the additional period in\nwhich they have re-employment rights following the completion of that duty.\nJune 28, 2010\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nYou have asked for our views on how to interpret the pre-amendment\nversion of 5 U.S.C. \xc2\xa7 5538, a law that provides a monetary payment to\nqualifying federal employees who are called to active duty from the\nmilitary reserves. 1 Under section 5538, reservists who take a leave of\nabsence from federal civilian employment \xe2\x80\x9cin order to perform active\nduty in the uniformed services pursuant to a call or order to active duty\xe2\x80\x9d\nunder certain statutory authorities are entitled to additional compensation\nfor pay periods in which their military pay would be less than their basic\ncivilian pay. Section 5538 thus ensures that such reservists do not experience a pay cut because of a call to active duty. You have asked whether\nthe pay periods during which eligible federal employees are entitled to\nreceive this additional compensation, commonly known as \xe2\x80\x9creservist\ndifferential pay,\xe2\x80\x9d include only those that occur within the period of active\nduty, or whether they also include those pay periods that fall within the\nadditional period of time, specified by 38 U.S.C. \xc2\xa7 4312, in which a\nIn addition to the views we received from the Office of Personnel Management, we\nalso solicited and received the views of the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d). See Memorandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Elaine D. Kaplan, General Counsel, Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d),\nRe: Request for OLC Opinion Regarding Entitlement to Payment of the Reservist Differential Under 5 U.S.C. \xc2\xa7 5538 During Periods of Time After Active Duty Ends, and\nDuring Which an Employee Is Entitled to Reemployment Rights Under the Uniformed\nServices Employment and Reemployment Rights Act (Nov. 19, 2009); E-mail for Jeannie\nRhee, Deputy Assistant Attorney General, Office of Legal Counsel, from James Smyser,\nAssociate Deputy General Counsel, Department of Defense, Re: FW: Opinion Request\nfrom OPM on interpretation of 5 USC 5538 (Reservist Differential Pay) (Feb. 4, 2010)\n(\xe2\x80\x9cDoD E-mail\xe2\x80\x9d).\n1\n\n193\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nreturning reservist is generally entitled to report for re-employment at his\nor her civilian workplace. We conclude that under the pre-amendment\nstatute, covered employees may receive reservist differential pay not\nonly for pay periods that occur when they are serving on active duty,\nbut also for those pay periods that fall within the additional period in\nwhich they have re-employment rights following the completion of that\nduty. 5 U.S.C. \xc2\xa7 5538(b)(2)(B). 2\nI.\nFirst enacted on March 11, 2009 (see Omnibus Appropriations Act,\n2009, Pub. L. No. 111-8, div. D, \xc2\xa7 751(a), 123 Stat. 524, 693), 5 U.S.C.\n\xc2\xa7 5538 contains three provisions relevant to your question. The first,\nsubsection (a), describes the requirements a federal employee must meet\nto be eligible for reservist differential pay and sets forth the method for\ncalculating the amount:\n(a) An employee who is absent from a position of employment\nwith the Federal Government in order to perform active duty in the\nuniformed services pursuant to a call or order to active duty under a\nprovision of law referred to in section 101(a)(13)(B) of title 103 shall\nbe entitled, while serving on active duty, to receive, for each pay period described in subsection (b), an amount equal to the amount by\nwhich\xe2\x80\x94\n\nIn December 2009, Congress amended section 5538 in a manner that OPM and DoD\nbelieve makes clear \xe2\x80\x9cthat the reservist differential is not payable for periods following\ncompletion of active duty.\xe2\x80\x9d OPM, Reservist Differential, Guidance, Qualifying Periods,\nhttp://www.opm.gov/reservist/guidance/qualifying.asp (last visited ca. 2010); see also\nConsolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C, \xc2\xa7 745(a), 123 Stat.\n3034, 3219 (2009). We express no opinion on that interpretation, although we note that\nsection 5538 gives OPM, \xe2\x80\x9cin consultation with [the] Secretary of Defense,\xe2\x80\x9d the discretion\nto \xe2\x80\x9cprescribe any regulations necessary to carry out the preceding provisions of this\nsection.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5538(d).\n3 As an OPM guidance document explains, section 101(a)(13)(B) references \xe2\x80\x9cspecific\nprovisions in title 10 of the United States Code\xe2\x80\x9d which function as \xe2\x80\x9cauthorities for certain\nmilitary contingency operations for which a reservist (i.e., member of a Reserve component or the National Guard) may be called or ordered to active duty.\xe2\x80\x9d OPM, Reservist\nDifferential, Guidance, Appendix D, http://www.opm.gov/reservist/guidance/appendixd.\nasp (last visited ca. 2010).\n2\n\n194\n\n\x0cEntitlement to Reservist Differential Pay\n\n(1) the amount of basic pay which would otherwise have been\npayable to such employee for such pay period if such employee\xe2\x80\x99s\ncivilian employment with the Government had not been interrupted by that service, exceeds (if at all)\n(2) the amount of pay and allowances which (as determined under subsection (d))\xe2\x80\x94\n(A) is payable to such employee for that service; and\n(B) is allocable to such pay period.\n5 U.S.C. \xc2\xa7 5538(a) (emphasis added).\nSecond, subsection (b)(1) describes the \xe2\x80\x9cpay period[s]\xe2\x80\x9d referenced in\nsubsection (a) during which an eligible employee is entitled to receive\nreservist differential payments:\n(b) (1) Amounts under this section shall be payable with respect to\neach pay period (which would otherwise apply if the employee\xe2\x80\x99s civilian employment had not been interrupted)\xe2\x80\x94\n(A) during which such employee is entitled to reemployment\nrights under chapter 43 of title 38 with respect to the position\nfrom which such employee is absent (as referred to in subsection (a)); and\n(B) for which such employee does not otherwise receive\nbasic pay (including by taking any annual, military, or other\npaid leave) to which such employee is entitled by virtue of such\nemployee\xe2\x80\x99s civilian employment with the Government.\n5 U.S.C. \xc2\xa7 5538(b)(1).\nThird, as originally enacted, subsection (b) also contained an additional\nprovision, paragraph (2), that provided a further gloss on the period during which an employee would be \xe2\x80\x9centitled to reemployment rights under\nchapter 43 of title 38\xe2\x80\x9d:\n(2) For purposes of this section, the period during which an employee is entitled to reemployment rights under chapter 43 of title\n38\xe2\x80\x94\n\n195\n\n\x0c34 Op. O.L.C. 193 (2010)\n\n(A) shall be determined disregarding the provisions of section\n4312(d) of title 38; 4 and\n(B) shall include any period of time specified in section 4312(e)\nof title 38 within which an employee may report or apply for employment or reemployment following completion of service on active duty to which called or ordered as described in subsection\n(a).\n5 U.S.C. \xc2\xa7 5538(b)(2) (emphasis added).\nSection 5538(b)\xe2\x80\x99s references to \xe2\x80\x9cchapter 43 of title 38\xe2\x80\x9d are to the Uniformed Services Employment and Reemployment Rights Act of 1994\n(\xe2\x80\x9cUSERRA\xe2\x80\x9d), 38 U.S.C. \xc2\xa7\xc2\xa7 4301\xe2\x80\x934335 (2006 & West Supp. 2010). 5\nAmong other things, USERRA broadly requires an employer to promptly\nreemploy a returning reservist to \xe2\x80\x9cthe position for which qualified that he\nor she would have attained if continuously employed,\xe2\x80\x9d or, in the case of\nactive service periods lasting 91 days or more, \xe2\x80\x9ca position of like seniority, status, and pay.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 353.207 (2009); see 38 U.S.C. \xc2\xa7 4312. To\ntake advantage of this entitlement, an employee must timely report for\nwork or submit an application for reemployment \xe2\x80\x9cupon the completion of\na period of service in the uniformed services\xe2\x80\x9d and by a statutorily prescribed deadline. 38 U.S.C. \xc2\xa7 4312(e)(1). Persons \xe2\x80\x9cwhose period of\nservice in the uniformed services was less than 31 days\xe2\x80\x9d must report to\ntheir employer on the first work day following completion of their service, a period allowing for safe travel back to their residence, and an\nSection 4312(d) excuses employers from their reemployment obligations when they\nare able to demonstrate: (1) \xe2\x80\x9cthe employer\xe2\x80\x99s circumstances have so changed as to make\nsuch reemployment impossible or unreasonable\xe2\x80\x9d; (2) \xe2\x80\x9csuch employment would impose\nan undue hardship on the employer\xe2\x80\x9d; or (3) the reservist was employed for \xe2\x80\x9ca brief,\nnonrecurrent period\xe2\x80\x9d prior to active service and \xe2\x80\x9cthere is no reasonable expectation that\nsuch employment will continue indefinitely or for a significant period.\xe2\x80\x9d 38 U.S.C.\n\xc2\xa7 4312(d)(1).\n5 USERRA\xe2\x80\x99s general purposes are: \xe2\x80\x9c(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and\nemployment which can result from such service; (2) to minimize the disruption to the\nlives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt\nreemployment of such persons upon their completion of such service; and (3) to prohibit\ndiscrimination against persons because of their service in the uniformed services.\xe2\x80\x9d 38\nU.S.C. \xc2\xa7 4301(a) (2006).\n4\n\n196\n\n\x0cEntitlement to Reservist Differential Pay\n\nadditional \xe2\x80\x9ceight hours.\xe2\x80\x9d Id. \xc2\xa7 4312(e)(1)(A)(i). Those who serve for\n\xe2\x80\x9cmore than 30 days but less than 181 days\xe2\x80\x9d must submit an \xe2\x80\x9capplication\nfor reemployment . . . not later than 14 days after the completion\xe2\x80\x9d of\ntheir service. Id. \xc2\xa7 4312(e)(1)(C). And those who serve for \xe2\x80\x9cmore than\n180 days\xe2\x80\x9d must submit an application for reemployment \xe2\x80\x9cnot later than\n90 days after the completion\xe2\x80\x9d of their service. Id. \xc2\xa7 4312(e)(1)(D). 6\nII.\nYour question regarding the duration of a federal employee\xe2\x80\x99s entitlement to \xe2\x80\x9creservist differential pay\xe2\x80\x9d arises because two provisions of the\noriginal statutory text could be read to give conflicting indications as to\nhow long that entitlement was intended to last. On the one hand, section\n5538(a) declared that eligible employees are \xe2\x80\x9centitled, while serving on\nactive duty, to receive, for each pay period described in subsection (b),\xe2\x80\x9d\nreservist differential pay\xe2\x80\x94a provision that, at least in isolation, seemed to\nindicate that employees would be entitled to receive such pay only \xe2\x80\x9cwhile\nserving on active duty.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5538(a) (emphasis added). On the\nother hand, section 5538(b)\xe2\x80\x94which described the pay periods during\nwhich an employee is entitled to receive reservist differential pay\xe2\x80\x94\nprovided that the \xe2\x80\x9cperiod . . . during which such employee is entitled to\xe2\x80\x9d\ndifferential pay \xe2\x80\x9cshall include any period of time . . . within which an\nemployee may report or apply for employment or reemployment following\ncompletion of service on active duty.\xe2\x80\x9d Id. \xc2\xa7 5538(b)(1)(A) & (2)(B) (emphasis added). In contrast to section 5538(a), section 5538(b)(2)(B) appeared to contemplate that an eligible employee could receive differential\npay during periods that \xe2\x80\x9cfollow[] completion of service on active duty.\xe2\x80\x9d\nIn the time since we received your opinion request, Congress has\namended section 5538 by, in effect, deleting subsection (b)(2). See\nConsolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C,\n\n6 These deadlines are extended in the case of \xe2\x80\x9c[a] person who is hospitalized for, or\nconvalescing from, an illness or injury incurred in, or aggravated during, the performance\nof service in the uniformed services.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 4312(e)(2)(A). Such a person may\nreport or apply for reemployment after recovering from the illness or injury. This recovery period is limited to two years, except where reporting for reemployment within that\nperiod is made impossible or unreasonable by circumstances beyond the person\xe2\x80\x99s control.\nId.\n\n197\n\n\x0c34 Op. O.L.C. 193 (2010)\n\n\xc2\xa7 745(a), 123 Stat. 3034, 3219 (2009) (deleting the original subsection\n(b) and inserting in its place a new subsection (b) that contains all of the\nlanguage of former subsection (b)(1) and none of the language of former\nsubsection (b)(2)). The conference report termed this change a \xe2\x80\x9ctechnical correction\xe2\x80\x9d to section 5538, but did not otherwise discuss the\nintended purpose or import of this amendment. See H.R. Rep. No. 111366, at 946 (2009) (Conf. Rep.). As we understand it, OPM and DoD\nagree that this amendment \xe2\x80\x9cclarif[ies] that the reservist differential is\nnot payable for periods following completion of active duty.\xe2\x80\x9d OPM,\nReservist Differential, Guidance, Qualifying Periods, http://www.opm.\ngov/reservist/guidance/qualifying.asp (last visited ca. 2010). However,\nyour opinion request remains outstanding, in light of continued disagreement regarding the proper interpretation of the original statute, as it\napplies to those who served on active duty and were entitled to reemployment rights during the pre-amendment period.\nA.\nThe principle that \xe2\x80\x9c[a] statute should be construed so that effect is given to all its provisions so that no part will be inoperative or superfluous,\nvoid or insignificant\xe2\x80\x9d is \xe2\x80\x9cone of the most basic interpretive canons.\xe2\x80\x9d\nCorley v. United States, 129 S. Ct. 1558, 1566 (2009). See also, e.g.,\nAlaska Dep\xe2\x80\x99t of Envtl. Conserv. v. EPA, 540 U.S. 461, 489 n.13 (2004)\n(\xe2\x80\x9cIt is . . . a cardinal principle of statutory construction that a statute\nought, upon the whole, to be so construed that, if it can be prevented, no\nclause, sentence, or word shall be superfluous, void, or insignificant.\xe2\x80\x9d)\n(quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation\nmarks omitted)); Market Co. v. Hoffman, 101 U.S. 112, 115\xe2\x80\x9316 (1879) (\xe2\x80\x9ca\nstatute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant\xe2\x80\x9d); Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (quoting Reiter\nv. Sonotone Corp., 442 U.S. 330, 339 (1979) (\xe2\x80\x9cwe are obliged to give\neffect, if possible, to every word Congress used\xe2\x80\x9d). When presented with\nprovisions that appear to be in conflict, we must therefore endeavor to\nreconcile those provisions by adopting a construction that refrains from\ntreating any provision as void or meaningless, in accordance with the\nmaxim that \xe2\x80\x9c[t]he cardinal principle of statutory construction is to save\nand not to destroy.\xe2\x80\x9d United States v. Menasche, 348 U.S. 528, 538\xe2\x80\x9339\n198\n\n\x0cEntitlement to Reservist Differential Pay\n\n(1955); see also Moskal v. United States, 498 U.S. 103, 109 (1990) (rejecting proposed construction that would fail to give meaning to certain\nstatutory language because such a reading would \xe2\x80\x9cviolate[] the established\nprinciple that a court should give effect, if possible, to every clause and\nword of a statute\xe2\x80\x9d) (quotation marks omitted); Hoffman, 101 U.S. at 116\n(\xe2\x80\x9cevery part of a statute must be construed in connection with the whole,\nso as to make all the parts harmonize, if possible, and give meaning to\neach\xe2\x80\x9d); 2A Norman J. Singer & J.D. Shamble Singer, Sutherland Statutes\nand Statutory Construction \xc2\xa7 46.6 (7th ed. 2007) (\xe2\x80\x9cSinger\xe2\x80\x9d) (\xe2\x80\x9cNo clause,\nsentence or word shall be construed as superfluous, void or insignificant if\na construction can be found which will give force to and preserve all the\nwords of the statute.\xe2\x80\x9d).\nIt is clearly possible to read subsection (a)\xe2\x80\x99s \xe2\x80\x9cwhile serving on active\nduty\xe2\x80\x9d provision, at least in isolation, to permit employees to receive\nreservist differential pay only for pay periods that occur within the period\nof active duty. However, adopting this reading of subsection (a) would\ndeprive a substantial part of subsection (b) of meaning, since the latter\nprovision states that such pay \xe2\x80\x9cshall by payable with respect to each pay\nperiod . . . during which such employee is entitled to re-employment\nrights under chapter 43 of title 38\xe2\x80\x9d (5 U.S.C. \xc2\xa7 5538(b)(1)), a category\nthat is then expressly defined to include the time \xe2\x80\x9cfollowing completion of\nservice on active duty\xe2\x80\x9d (5 U.S.C. \xc2\xa7 5538(b)(2)(B) (emphasis added)).\nReading subsection (a) as controlling the meaning of section 5538 in this\nway thus would effectively read subsection (b)(2)(B) out of the statute\nand produce a reading that contradicts its plain language\xe2\x80\x94a result that\nwould be difficult to square with the statutory construction principles we\nhave just described. See 2A Singer \xc2\xa7 46:6 (\xe2\x80\x9cA statute should be construed\nso that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not\ndestroy another unless the provision is the result of obvious mistake or\nerror.\xe2\x80\x9d); Menasche, 348 U.S. at 538\xe2\x80\x9339 (\xe2\x80\x9cIt is our duty to give effect, if\npossible, to every clause and word of a statute, rather than to emasculate\nan entire section\xe2\x80\x9d) (quotation marks omitted). Reading subsection (a) in\nthis manner would also introduce an internal tension in subsection (a)\nitself: subsection (a) states that eligible employees \xe2\x80\x9cshall be entitled\xe2\x80\x9d to\nreceive reservist differential pay \xe2\x80\x9cfor each pay period described in subsection (b),\xe2\x80\x9d but on this interpretation of section 5538, such employees in\n199\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nfact would not be entitled to receive differential pay for each pay period\ndescribed in subsection (b)\xe2\x80\x94they would not receive such pay for the\nperiods \xe2\x80\x9cfollowing completion of service on active duty\xe2\x80\x9d described in\nsubsection (b)(2)(B).\nIn view of these difficulties, we believe subsection (a) should not be\nread as restricting reservist differential pay to those periods during which\na reservist is actually serving on active duty if another plausible reading\nof the statute is available. And here, we think such a reading is available:\nit is also possible to read subsection (a)\xe2\x80\x99s phrase \xe2\x80\x9centitled, while serving\non active duty, to receive\xe2\x80\x9d reservist differential pay to mean that an employee\xe2\x80\x99s entitlement to receive such pay accrues and vests during his or\nher service on active duty. On this reading, the employee accrues the\n\xe2\x80\x9centitle[ment]\xe2\x80\x9d to receive reservist differential pay during \xe2\x80\x9ceach pay\nperiod described in subsection (b)\xe2\x80\x9d by virtue of service on active duty.\nHowever, the duration of the entitlement that would thereby vest, on this\nreading, would not be limited solely to the term of active service, but\nwould also encompass \xe2\x80\x9ceach pay period described in subsection (b),\xe2\x80\x9d\nincluding those periods that \xe2\x80\x9cfollow[] completion of service on active\nduty.\xe2\x80\x9d This reading harmonizes subsection (a) and subsection (b)(2)(B),\navoiding the apparent conflict that would arise from the narrower reading\nof subsection (a) discussed above.\nIn addition to avoiding any apparent conflict with subsection (b), this\nreading gives distinct meaning to each of the references in subsection (a)\nto \xe2\x80\x9cactive duty.\xe2\x80\x9d The first part of subsection (a) states that the entitlement\nto reservist differential pay applies to employees who are absent from\nfederal employment \xe2\x80\x9cin order to perform active duty in the uniformed\nservices pursuant to a call or order to active duty\xe2\x80\x9d under certain specified\nstatutory provisions. This language makes clear that an employee qualifies\nfor reservist differential pay only if he or she is absent for the purpose of\nserving on active duty, as opposed to other forms of service, and only\nif that service on active duty is pursuant to a call or order under one of the\nreferenced statutory provisions. 7 Subsection (a) then refers to \xe2\x80\x9cactive\nReemployment rights under chapter 43 apply to persons \xe2\x80\x9cwhose absence from a position of employment is necessitated by reason of service in the uniformed services.\xe2\x80\x9d 38\nU.S.C. \xc2\xa7 4312(a). The term \xe2\x80\x9cservice in the uniformed services,\xe2\x80\x9d in turn, is defined as \xe2\x80\x9cthe\nperformance of duty on a voluntary or involuntary basis in a uniformed service under\n7\n\n200\n\n\x0cEntitlement to Reservist Differential Pay\n\nduty\xe2\x80\x9d a second time, in the provision at issue here, stating that an eligible\nemployee \xe2\x80\x9cshall be entitled, while serving on active duty, to receive\xe2\x80\x9d\nreservist differential pay. On the reading proposed here, this second\nreference to \xe2\x80\x9cactive duty\xe2\x80\x9d clarifies that the right to reservist pay accrues\nand vests only if the employee actually performs active duty.\nIt is true that the word \xe2\x80\x9cwhile\xe2\x80\x9d suggests a bounded duration, circumscribed by the time period or event to which it refers, rather than an\nopen-ended period initiated by that time period or event. See Webster\xe2\x80\x99s\nThird New International Dictionary 2604 (1993) (defining \xe2\x80\x9cwhile,\xe2\x80\x9d when\nused as a conjunction in similar contexts, to mean \xe2\x80\x9cduring the time that,\xe2\x80\x9d\n\xe2\x80\x9cuntil the end of the time that,\xe2\x80\x9d or \xe2\x80\x9cduring which time\xe2\x80\x9d). And on our\nreading, the period in which an employee would receive reservist differential pay would not be confined to the bounded duration of the employee\xe2\x80\x99s period of active service. However, our reading is nonetheless consistent with understanding the word \xe2\x80\x9cwhile\xe2\x80\x9d to connote a circumscribed\nduration, because the employee\xe2\x80\x99s receipt of reservist differential pay\nwould be defined, in two distinct but related respects, by the period of\ntime that the employee spends in active service. First, during each day of\nactive duty\xe2\x80\x94i.e., \xe2\x80\x9cwhile serving on active duty\xe2\x80\x9d\xe2\x80\x94an eligible employee\nis entitled to reservist differential pay that corresponds to that day. Second, and simultaneously, each day of active duty counts towards the total\nlength of service that determines, in turn, the period following the completion of active duty during which the employee is entitled to reemployment rights and, consequently, reservist differential pay. See 5 U.S.C.\n\xc2\xa7 5538(b)(2)(B).\nWe therefore do not believe that section 5538 presents the rare circumstance in which it is necessary to resort to the \xe2\x80\x9celimination of words\xe2\x80\x9d in\norder to \xe2\x80\x9cgive [an] act meaning, effect or intelligibility\xe2\x80\x9d or \xe2\x80\x9cavoid inconsistencies and to make the provisions of the act harmonize.\xe2\x80\x9d 2A Singer\n\xc2\xa7 47:37. As we have explained above, consistent with the view expressed\nby OPM, we believe there is a reading of the statute that is permissible\nand gives meaning to all its provisions. As such, we do not face a circumcompetent authority and includes active duty, active duty for training, initial active duty\nfor training, inactive duty training, full-time National Guard duty, a period for which a\nperson is absent . . . for the purpose of an examination to determine the fitness of the\nperson to perform any such duty, and a period for which a person is absent . . . for the\npurpose of performing funeral honors duty.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 4303(13).\n\n201\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nstance comparable to that at issue in Chickasaw Nation v. United States,\n534 U.S. 84 (2001), where the Supreme Court adopted a construction of a\nfederal statute that concededly \xe2\x80\x9cdeprive[d] the words \xe2\x80\x98chapter 35\xe2\x80\x99 of any\neffect,\xe2\x80\x9d id. at 93. The unusual circumstances of that case compelled the\nCourt to conclude, after applying ordinary tools of statutory construction,\nthat \xe2\x80\x9cno other reasonable reading of the statute\xe2\x80\x9d was available. Id. at 89.\nMoreover, the language the Court deprived of meaning in Chicksaw\nNation appeared in an illustrative parenthetical. See id. at 90 (emphasizing\nthat the words \xe2\x80\x9cchapter 35\xe2\x80\x9d appeared in a parenthetical phrase and that\n\xe2\x80\x9c[t]he use of parentheses emphasizes the fact that that which is within is\nmeant simply to be illustrative, hence redundant\xe2\x80\x9d); id. at 89\xe2\x80\x9390 (finding\nthat \xe2\x80\x9cthe language outside the parenthetical is unambiguous,\xe2\x80\x9d and \xe2\x80\x9ctoo\nstrong to bend as the Tribes would wish\xe2\x80\x94i.e., so that it gives the chapter\n35 reference independent operative effect,\xe2\x80\x9d without \xe2\x80\x9cseriously rewriting\nthe language of the rest of the statute\xe2\x80\x9d or resorting to a construction \xe2\x80\x9cfar\ntoo convoluted to believe Congress intended it\xe2\x80\x9d); id. at 91 (noting that the\nlegislative history of the provision at issue \xe2\x80\x9con balance supports our\nconclusion\xe2\x80\x9d). Here, in contrast, the language that would be disregarded if\nwe did not adopt our reading is not a single example in an arguably illustrative parenthetical, but rather an entire subsection\xe2\x80\x94one that employs\nmandatory language and thus suggests on its own terms that it was intended to have substantive meaning. See 5 U.S.C. \xc2\xa7 5538(b)(2) (\xe2\x80\x9cthe period\nduring which an employee is entitled to reemployment rights under chapter 43 of title 38 . . . (B) shall include any period of time specified in\nsection 4312(e) of title 38\xe2\x80\x9d). There is nothing in the text to indicate that\nCongress intended subsection (b)(2)(B) to be merely illustrative, or otherwise ineffectual. We therefore do not believe that the provision at issue\nhere is one that may be treated as void, in contravention of the ordinary\nrule that no portion of a statute should be treated as \xe2\x80\x9cinoperative\nor superfluous, void or insignificant.\xe2\x80\x9d Corley, 129 S. Ct. at 1566.\nWe also do not think that the inclusion of subsection (b)(2)(B) can be\nviewed as \xe2\x80\x9cthe result of obvious mistake or error.\xe2\x80\x9d See 2A Singer \xc2\xa7 46:6.\nSo far as we have been able to discern, all but one of the precursors to\nthe bill originally enacted as section 5538, dating back as far as 2001,\nincluded subsection (b)(2)(B), cast in similar or even identical terms.\nSee, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,\n107th Cong. (introduced Dec. 13, 2001). The only exception of which we\n202\n\n\x0cEntitlement to Reservist Differential Pay\n\nare aware was H.R. 4247, introduced in 2007. It too would have provided\nfor reservist differential pay following the completion of active service,\neven though, unlike subsection (b)(2)(B), it did not expressly reference\nUSERRA\xe2\x80\x99s reemployment rights provisions to define the scope of that\ncoverage. 8 Moreover, we know of no precedent for treating such a lengthy\nstatutory phrase as the product of mere inadvertence or error. We would\nbe particularly reluctant to accord such treatment to subsection (b)(2)(B)\nbecause the text of section 5538 suggests that the drafters viewed subsections (a) and (b)\xe2\x80\x94including subsection (b)(2)(B)\xe2\x80\x94as parts of an integrated whole that defined the benefit that Congress intended to confer. Subsection (a) expressly cross-references subsection (b) in describing the\nperiod for which employees will be entitled to receive reservist differential pay; subsection (b)(2)(B) clarifies that the period \xe2\x80\x9cduring which such\nemployee is entitled to reemployment rights under chapter 43 of title 38,\xe2\x80\x9d\nas that phrase is used in subsection (b)(1)(A), \xe2\x80\x9cshall include any period of\ntime\xe2\x80\x9d \xe2\x80\x9cwithin which an employee may report or apply for employment or\nreemployment rights following completion of service on active duty\xe2\x80\x9d; and\nsubsection (b)(2)(B) expressly refers back to subsection (a)\xe2\x80\x99s \xe2\x80\x9ccall or\norder to active duty\xe2\x80\x9d requirement. In view of these circumstances, we are\nnot persuaded that the inclusion of subsection (b)(2)(B) could be reasonably viewed as the result of inadvertence. The better course, we think, is to\naccord meaning to that subsection, in keeping with its plain terms.\nWe are aware of the argument that the statute should not be so construed because it is doubtful that Congress would have intended that\n\xe2\x80\x9creservist differential pay would continue during periods in which the\n[covered employee] is not serving on active duty and not receiving military pay,\xe2\x80\x9d particularly given that subsection (a) of the statute defines the\namount of the reservist differential as an \xe2\x80\x9camount equal to the amount by\nwhich [a covered employee\xe2\x80\x99s] basic pay . . . exceeds [the covered employee\xe2\x80\x99s] military pay and allowances.\xe2\x80\x9d DoD E-mail (emphasis removed)\n(citing 5 U.S.C. \xc2\xa7 5538(a)). We acknowledge that the statute does not\n8 See H.R. 4247, 110th Cong. \xc2\xa7 4(b)(1) (introduced Nov. 15, 2007) (providing for\nreservist differential pay \xe2\x80\x9c(A) while the employee serves on active duty for a period of\nmore than 30 days; (B) while the employee is hospitalized for, or convalescing from, an\nillness or injury incurred in, or aggravated during, the performance of such active duty;\nor (C) during the 14-day period beginning at the end of such active duty or the end of the\nperiod referred to in subparagraph (B)\xe2\x80\x9d).\n\n203\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nexpressly contemplate that the amount of military pay and allowances\nallocable to a particular pay period might be zero: subsection (a) refers to\n\xe2\x80\x9cthe amount of pay and allowances\xe2\x80\x9d allocable to a given pay period, not,\nfor example, \xe2\x80\x9cthe amount, if any, of pay and allowances\xe2\x80\x9d allocable to a\ngiven period. See 5 U.S.C. \xc2\xa7 5538(a)(2); cf. id. \xc2\xa7 5538(a)(1) (referring to\nthe amount, \xe2\x80\x9cif at all,\xe2\x80\x9d by which basic pay exceeds military pay for a\ngiven pay period). But reservist differential pay may still be calculated\nunder subsection (a) even if military pay and allowances are zero. And\nthis argument with respect to subsection (a) does not indicate any alternate way of giving meaning to subsection (b)(2)(B)\xe2\x80\x94the difficulty that,\nas discussed above, necessitates our approach.\nThe interpretation set forth above, moreover, is consistent with the\noverall purpose of the statutory scheme\xe2\x80\x94to prevent federal employees\nfrom suffering a reduction in pay and thereby incurring a financial burden in the performance of active duty pursuant to one of the referenced\nstatutory provisions. See 5 U.S.C. \xc2\xa7 5538(a); cf. 149 Cong. Rec. 5764\n(2003) (statement of Sen. Durbin, introducing a prior version of section\n5538) (\xe2\x80\x9cI would like to discuss the financial burden faced by many of the\nmen and women who serve in the military Reserves or National Guard\nand who are forced to take unpaid leave from their jobs when called to\nactive duty . . . . It is unfair to ask the men and women who have volunteered to serve their country . . . to also face a financial strain on their\nfamilies.\xe2\x80\x9d). Section 5538\xe2\x80\x99s reference to USERRA to determine the pay\nperiods during which reservist pay is available is consistent with this\nobjective. USERRA operates to \xe2\x80\x9cminimize the disruption to the lives of\npersons performing service in the uniformed services as well as to their\nemployers.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 4301(a) (2006). As the House report accompanying USERRA states, Congress included a reemployment period after\nuniformed service because \xe2\x80\x9c[o]ne of the basic purposes of the reemployment statute is to maintain the servicemember\xe2\x80\x99s civilian job as an \xe2\x80\x98unburned bridge.\xe2\x80\x99\xe2\x80\x9d H.R. Rep. No. 103-65, at 26 (1993). The period ensures\nthat servicemembers are \xe2\x80\x9cnot pressed for a decision immediately on\n[their] discharge, but ha[ve] the opportunity to make plans for the future\nand readjust [themselves] to civilian life.\xe2\x80\x9d Id. (quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284 (1946)). Accordingly, it\nis entirely consistent with Congress\xe2\x80\x99s objective to mitigate the financial\nburden of those called to active duty to provide, when the term of active\n204\n\n\x0cEntitlement to Reservist Differential Pay\n\nduty ends, reservist differential pay during their period of statutory\nreadjustment to civilian life\xe2\x80\x94a period during which they could otherwise\nhave remained gainfully employed at their original government job had\nthey not been ordered to active duty.\nFor the reasons discussed above, we think the better reading of section\n5538, viewed as a whole, would permit eligible employees to receive\ndifferential pay in accordance with the plain language of subsection\n(b)(2)(B). That reading is also consistent with and gains support from\nthe interpretive canon that \xe2\x80\x9cprovisions for benefits to members of the\nArmed Services are to be construed in the beneficiaries\xe2\x80\x99 favor.\xe2\x80\x9d King v.\nSt. Vincent\xe2\x80\x99s Hosp., 502 U.S. 215, 220 n.9 (1991) (interpreting a provision of the Veterans\xe2\x80\x99 Reemployment Rights Act, a USERRA precursor);\nsee also, e.g., Fishgold, 328 U.S. at 285 (\xe2\x80\x9cThis legislation [the Selective\nTraining and Service Act of 1940] is to be liberally construed for the\nbenefit of those who left private life to serve their country in its hour of\ngreat need.\xe2\x80\x9d).\nB.\nIn our view, neither the pre-enactment nor post-enactment legislative\nhistory of section 5538 offers much aid in interpreting the original text.\nBeginning in about 2001, numerous measures were introduced in both\nhouses of Congress regarding reservist differential pay. Many of these\nbills were phrased in terms very similar to the bill first enacted as section\n5538. However, there were significant differences in certain bills. For\nexample, the earliest bills omitted the phrase \xe2\x80\x9cwhile serving on active\nduty,\xe2\x80\x9d from subsection (a), thus providing simply that that eligible federal employees would be \xe2\x80\x9centitled to receive\xe2\x80\x9d a reservist differential \xe2\x80\x9cfor\neach pay period described in subsection (b)\xe2\x80\x9d\xe2\x80\x94a subsection that, in each\ncase, included the language eventually enacted as subsection (b)(2)(B).\nSee, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,\n107th Cong. (introduced Dec. 13, 2001); H.R. 217, 108th Cong. (introduced Jan. 7, 2003). If such a bill had been adopted by Congress, the\napparent tension in the pre-amendment text of subsections (a) and (b) of\nsection 5538 would not have been presented. That tension first emerged\nin 2003. See S. 593, 108th Cong. (introduced Mar. 11, 2003). As originally introduced, S. 593 did not contain the phrase \xe2\x80\x9cwhile serving on\n205\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nactive duty\xe2\x80\x9d in subsection (a). That phrase was added in committee, in\nthe same place it appears in the first-enacted version of subsection (a).\nSee S. 593, 108th Cong. (reported out of Committee on Governmental\nAffairs, Nov. 16, 2004). Notably, however, the conference report for the\namended S. 593 does not list the addition of the phrase \xe2\x80\x9cwhile serving on\nactive duty\xe2\x80\x9d as among the changes made to the bill, or discuss the intended interplay between subsections (a) and (b). See S. Rep. No. 108-409\n(Nov. 16, 2004).\nIt appears that nearly every bill subsequently introduced regarding reservist differential pay incorporated both the phrase \xe2\x80\x9cwhile serving on\nactive duty\xe2\x80\x9d in subsection (a) and the phrase \xe2\x80\x9cfollowing completion of\nservice on active duty\xe2\x80\x9d in subsection (b)(2)(B), just as did the bill that\nultimately became law. See, e.g., S. 989, 109th Cong. (introduced May\n10, 2005); H.R. 5525, 109th Cong. (introduced June 6, 2006); Financial\nServices and General Government Appropriations Act, 2009, S. 3260,\n110th Cong. \xc2\xa7 750(a) (introduced July 14, 2008). But see H.R. 4247,\n110th Cong. \xc2\xa7 4 (introduced Nov. 15, 2007) (omitting the \xe2\x80\x9cwhile serving\non active duty\xe2\x80\x9d language from subsection (a) and providing in subsection\n(b) that reservist differential payments would be due \xe2\x80\x9c(A) while the\nemployee serves on active duty for a period of more than 30 days; (B)\nwhile the employee is hospitalized for, or convalescing from, an illness\nor injury incurred in, or aggravated during, the performance of such\nactive duty; or (C) during the 14-day period beginning at the end of such\nactive duty or the end of the period referred to in subparagraph (B).\xe2\x80\x9d).\nWe are not aware of any legislative history of any of these predecessor\nbills that illuminates the question you have asked.\nThe legislative history of the original enactment similarly sheds little\nlight on congressional intent. Section 5538 was passed as part of an omnibus appropriations bill, and it appears that the only mention of this statute\nin the legislative history is contained in an explanatory statement submitted by Representative Obey. That statement says, simply, that \xe2\x80\x9cSection\n751 provides for nonreduction in pay for Federal employees while serving\nin the uniformed services or National Guard.\xe2\x80\x9d 155 Cong. Rec. H2704\n(daily ed. Feb. 23, 2009).\nThere have been some significant post-enactment developments, although we ultimately do not believe that Congress\xe2\x80\x99s subsequent actions\nin this area provide clear direction as to its purpose in enacting the origi206\n\n\x0cEntitlement to Reservist Differential Pay\n\nnal statute. Cf. PBGC v. LTV Corp., 496 U.S. 633, 650 (1990) (cautioning that \xe2\x80\x9csubsequent legislative history is a hazardous basis for inferring\nthe intent of an earlier Congress\xe2\x80\x9d) (internal quotation marks omitted). As\nwe previously noted, Congress amended section 5538 in December 2009,\nnine months after it was originally enacted. Both OPM and DoD have\nexpressed the view, on which we offer no opinion, that, as revised, section 5538 no longer permits employees to receive reservist differential\npay during the period after active service during which they continue to\nenjoy reemployment rights. See OPM, Reservist Differential, Guidance,\nQualifying Periods, http://www.opm.gov/reservist/guidance/qualifying.\nasp (last visited ca. 2010). In some circumstances, when \xe2\x80\x9ca former statute\nis amended, or a doubtful meaning clarified by subsequent legislation,\nsuch amendment or subsequent legislation is strong evidence of the\nlegislative intent of the first statute.\xe2\x80\x9d 2A Singer \xc2\xa7 49:11; see also Bailey\nv. Clark, 88 U.S. 284, 288 (1874) (statutory amendment \xe2\x80\x9cwas evidently\nintended to remove any doubt previously existing as to the meaning of\nthe statute and declare its true construction and meaning\xe2\x80\x9d); Brown v.\nMarquette Sav. & Loan Ass\xe2\x80\x99n, 686 F.2d 608, 615 (7th Cir. 1982) (same);\nPorter v. Comm\xe2\x80\x99r of Internal Revenue, 856 F.2d 1205, 1209 (8th Cir.\n1988) (\xe2\x80\x9cAmending legislation is perceived as clarifying, not changing, an\noriginal statute\xe2\x80\x99s intended meaning when a conflict of statutory interpretation has arisen.\xe2\x80\x9d).\nHowever, a statutory amendment does not invariably mean that the revised statute and the original statute share a common meaning. To the\ncontrary, the Supreme Court has acknowledged a \xe2\x80\x9ccanon of statutory\nconstruction requiring a change in language to be read, if possible, to have\nsome effect,\xe2\x80\x9d Am. Nat\xe2\x80\x99l Red Cross v. S.G., 505 U.S. 247, 263 (1992), and\nhas stated that \xe2\x80\x9c[t]he deliberate selection of language . . . differing from\nthat used in the earlier acts indicates that a change of law was intended.\xe2\x80\x9d\nBrewster v. Gage, 280 U.S. 327, 337 (1930) (\xe2\x80\x9cThere is no support for the\nsuggestion that subdivision (5) expressed the meaning, or was intended to\ngovern or affect the construction, of the earlier statutes.\xe2\x80\x9d); see also 2A\nSinger \xc2\xa7 49:11 (\xe2\x80\x9cA number of cases have held that where an act is amended or changed so that doubtful meaning is resolved such action constitutes\nevidence that the previous statue meant the contrary.\xe2\x80\x9d). Accordingly, the\nsignificance of a statutory revision\xe2\x80\x94i.e., whether it clarifies the original\nstatute, or amends it\xe2\x80\x94is appropriately determined by reference to the text\n207\n\n\x0c34 Op. O.L.C. 193 (2010)\n\nof the amendment and the context surrounding its adoption. See, e.g.,\nS.G., 505 U.S. at 263\xe2\x80\x9364 n.15 (relying on an absence of any indication in\nthe \xe2\x80\x9cAdvisory Report, the document both Houses of Congress acknowledged as the source for the amendment,\xe2\x80\x9d in rejecting the view that the\namendment was intended merely to clarify \xe2\x80\x9cthe Red Cross\xe2\x80\x99s clear preamendment capacity to sue in federal court\xe2\x80\x9d rather than amend the law);\nBarnes v. Cohen, 749 F.2d 1009, 1015\xe2\x80\x9316 (3d Cir. 1984) (determining in\nlight of legislative history and a subsequent agency interpretation that\nCongress\xe2\x80\x99s purpose in amending an ambiguous statute was to provide\n\xe2\x80\x9c\xe2\x80\x98clarification\xe2\x80\x99 rather than a \xe2\x80\x98change\xe2\x80\x99\xe2\x80\x9d).\nHere, there is no clear textual indication that the amendment was meant\nto explain the meaning of the existing statute, rather than modify its\nmeaning\xe2\x80\x94indeed, the statute itself is simply silent on that point. It is true\nthat the conference report described the amendment as a \xe2\x80\x9ctechnical correction\xe2\x80\x9d to the existing law, see H.R. Rep. No. 111-366, at 946 (2009)\n(Conf. Rep.), and that, in some instances, the phrase \xe2\x80\x9ctechnical correction\xe2\x80\x9d is used to denote that Congress does not intend to make a substantive change to an existing provision. See, e.g., N. Broward Hosp. Dist. v.\nShalala, 172 F.3d 90, 97 (D.C. Cir. 1999) (where statutory amendment\n\xe2\x80\x9cwas styled a \xe2\x80\x98technical correction,\xe2\x80\x99\xe2\x80\x9d \xe2\x80\x9conly clarification and not substantive change was intended\xe2\x80\x9d); Wilhelm Pudenz, GmbH v. Littlefuse, Inc.,\n177 F.3d 1204, 1211 (11th Cir. 1999) (\xe2\x80\x9cWhile the text of the corrections\ndoes not explicitly tell us whether the additions and subtractions constitute new law, their designation as technical corrections tends to indicate\nthat they were merely changes meant to clarify existing law.\xe2\x80\x9d); In re\nChateaugay Corp., 89 F.3d 942, 954 (2d Cir. 1996) (\xe2\x80\x9cBy labelling the\n1994 change a \xe2\x80\x98technical correction,\xe2\x80\x99 Congress recognized that the [prior]\namendment did not purport to change the substantive meaning of the\nlaw.\xe2\x80\x9d). However, courts have also recognized that such labels are not\ndeterminative of a statute\xe2\x80\x99s meaning and that amendments described by\nCongress as \xe2\x80\x9ctechnical\xe2\x80\x9d sometimes make significant changes in existing\nlaw. See, e.g., Graham County Soil & Water Conserv. Dist. v. United\nStates ex rel. Wilson, 130 S. Ct. 1396, 1407\xe2\x80\x9308 (2010) (\xe2\x80\x9cSignificant\nsubstantive changes\xe2\x80\x94including the introduction of the term we are construing in this case\xe2\x80\x94were inserted without floor debate, as \xe2\x80\x98technical\xe2\x80\x99\namendments.\xe2\x80\x9d); United States v. R.L.C., 503 U.S. 291, 305 n.5 (1992)\n(\xe2\x80\x9cThe dissent takes us to task for reliance upon a \xe2\x80\x98technical amendment.\xe2\x80\x99\n208\n\n\x0cEntitlement to Reservist Differential Pay\n\nBut a statute is a statute, whatever its label.\xe2\x80\x9d); Pub. Emps. Ret. Bd. v.\nShalala, 153 F.3d 1160, 1162 (10th Cir. 1998) (\xe2\x80\x9cCongress did not consider the 1984 change to be dramatic, labeling the amendment a technical\ncorrection. Nonetheless, that technical correction has become very important\xe2\x80\x9d because it made certain retirement plan contributions subject to\nFICA taxes.); cf. H.R. 3658, H.R. 8321, and Related Bills, Congressional\nReview of Administrative Rulemaking: Hearing Before the Subcomm. on\nAdmin. L. & Gov\xe2\x80\x99t Rels. of the H. Committee on the Judiciary, 94th Cong.\n376 (1975) (statement of Antonin Scalia, Assistant Attorney General,\nOffice of Legal Counsel) (\xe2\x80\x9cPresidents have sometimes vetoed \xe2\x80\x98clarifying\xe2\x80\x99\nlegislation on the grounds that, in their view, the amendment did not\nclarify but vitiated the intent of the original act.\xe2\x80\x9d). Accordingly, the mere\nfact that the committee labeled this change a \xe2\x80\x9ctechnical correction\xe2\x80\x9d does\nnot establish that it was intended to clarify the statute\xe2\x80\x99s meaning, rather\nthan amend it.\nIII.\nTaken as a whole, and giving effect to each of its provisions, the text\nof section 5538 prior to its recent amendment is consistent with the view\nthat the entitlement to reservist differential pay extends to the period\nfollowing the completion of active duty service during which a returning\nreservist may apply or report for reemployment at his or her civilian\nworkplace. Accordingly, we conclude that the pre-amendment version of\nsection 5538 entitled federal employees to receive reservist differential\npay during \xe2\x80\x9cany period of time specified in section 4312(e) of title 38\nwithin which an employee may report or apply for employment or reemployment following completion of service on active duty.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 5538(b)(2)(B).\nJEANNIE S. RHEE\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n209\n\n\x0c'