Entitlement to Reservist Differential Pay Under Pre-Amendment Version of 5 U.S.C. § 5538 ( 2010 )

Entitlement to Reservist Differential Pay Under
Pre-Amendment Version of 5 U.S.C. § 5538
Under the pre-amendment version of 5 U.S.C. § 5538, covered employees may receive
reservist differential pay not only for pay periods that occur when they are serving on
active duty, but also for those pay periods that fall within the additional period in
which they have re-employment rights following the completion of that duty.
June 28, 2010
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF PERSONNEL MANAGEMENT
You have asked for our views on how to interpret the pre-amendment
version of 5 U.S.C. § 5538, a law that provides a monetary payment to
qualifying federal employees who are called to active duty from the
military reserves. 1 Under section 5538, reservists who take a leave of
absence from federal civilian employment “in order to perform active
duty in the uniformed services pursuant to a call or order to active duty”
under certain statutory authorities are entitled to additional compensation
for pay periods in which their military pay would be less than their basic
civilian pay. Section 5538 thus ensures that such reservists do not experi-
ence a pay cut because of a call to active duty. You have asked whether
the pay periods during which eligible federal employees are entitled to
receive this additional compensation, commonly known as “reservist
differential pay,” include only those that occur within the period of active
duty, or whether they also include those pay periods that fall within the
additional period of time, specified by 38 U.S.C. § 4312, in which a
1 In addition to the views we received from the Office of Personnel Management, we
also solicited and received the views of the Department of Defense (“DoD”). See Mem-
orandum for David Barron, Acting Assistant Attorney General, Office of Legal Counsel,
from Elaine D. Kaplan, General Counsel, Office of Personnel Management (“OPM”),
Re: Request for OLC Opinion Regarding Entitlement to Payment of the Reservist Differ-
ential Under 5 U.S.C. § 5538 During Periods of Time After Active Duty Ends, and
During Which an Employee Is Entitled to Reemployment Rights Under the Uniformed
Services Employment and Reemployment Rights Act (Nov. 19, 2009); E-mail for Jeannie
Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from James Smyser,
Associate Deputy General Counsel, Department of Defense, Re: FW: Opinion Request
from OPM on interpretation of 5 USC 5538 (Reservist Differential Pay) (Feb. 4, 2010)
(“DoD E-mail”).
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34 Op. O.L.C. 193 (2010)
returning reservist is generally entitled to report for re-employment at his
or her civilian workplace. We conclude that under the pre-amendment
statute, covered employees may receive reservist differential pay not
only for pay periods that occur when they are serving on active duty,
but also for those pay periods that fall within the additional period in
which they have re-employment rights following the completion of that
duty. 5 U.S.C. § 5538(b)(2)(B). 2
I.
First enacted on March 11, 2009 (see Omnibus Appropriations Act,
2009, Pub. L. No. 111-8, div. D, § 751(a), 123 Stat. 524, 693), 5 U.S.C.
§ 5538 contains three provisions relevant to your question. The first,
subsection (a), describes the requirements a federal employee must meet
to be eligible for reservist differential pay and sets forth the method for
calculating the amount:
(a) 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 103 shall
be entitled, while serving on active duty, to receive, for each pay pe-
riod described in subsection (b), an amount equal to the amount by
which—
2 In December 2009, Congress amended section 5538 in a manner that OPM and DoD
believe makes clear “that the reservist differential is not payable for periods following
completion of active duty.” OPM, Reservist Differential, Guidance, Qualifying Periods,
http://www.opm.gov/reservist/guidance/qualifying.asp (last visited ca. 2010); see also
Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C, § 745(a), 123 Stat.
3034, 3219 (2009). We express no opinion on that interpretation, although we note that
section 5538 gives OPM, “in consultation with [the] Secretary of Defense,” the discretion
to “prescribe any regulations necessary to carry out the preceding provisions of this
section.” 5 U.S.C. § 5538(d).
3 As an OPM guidance document explains, section 101(a)(13)(B) references “specific
provisions in title 10 of the United States Code” which function as “authorities for certain
military contingency operations for which a reservist (i.e., member of a Reserve compo-
nent or the National Guard) may be called or ordered to active duty.” OPM, Reservist
Differential, Guidance, Appendix D, http://www.opm.gov/reservist/guidance/appendixd.
asp (last visited ca. 2010).
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Entitlement to Reservist Differential Pay
(1) the amount of basic pay which would otherwise have been
payable to such employee for such pay period if such employee’s
civilian employment with the Government had not been interrupt-
ed by that service, exceeds (if at all)
(2) the amount of pay and allowances which (as determined un-
der subsection (d))—
(A) is payable to such employee for that service; and
(B) is allocable to such pay period.
5 U.S.C. § 5538(a) (emphasis added).
Second, subsection (b)(1) describes the “pay period[s]” referenced in
subsection (a) during which an eligible employee is entitled to receive
reservist differential payments:
(b) (1) Amounts under this section shall be payable with respect to
each pay period (which would otherwise apply if the employee’s ci-
vilian employment had not been interrupted)—
(A) during which such employee is entitled to reemployment
rights under chapter 43 of title 38 with respect to the position
from which such employee is absent (as referred to in subsec-
tion (a)); and
(B) for which such employee does not otherwise receive
basic pay (including by taking any annual, military, or other
paid leave) to which such employee is entitled by virtue of such
employee’s civilian employment with the Government.
5 U.S.C. § 5538(b)(1).
Third, as originally enacted, subsection (b) also contained an additional
provision, paragraph (2), that provided a further gloss on the period dur-
ing which an employee would be “entitled to reemployment rights under
chapter 43 of title 38”:
(2) For purposes of this section, the period during which an em-
ployee is entitled to reemployment rights under chapter 43 of title
38—
195
34 Op. O.L.C. 193 (2010)
(A) shall be determined disregarding the provisions of section
4312(d) of title 38; 4 and
(B) shall include any period of time specified in section 4312(e)
of title 38 within which an employee may report or apply for em-
ployment or reemployment following completion of service on ac-
tive duty to which called or ordered as described in subsection
(a).
5 U.S.C. § 5538(b)(2) (emphasis added).
Section 5538(b)’s references to “chapter 43 of title 38” are to the Uni-
formed Services Employment and Reemployment Rights Act of 1994
(“USERRA”), 38 U.S.C. §§ 4301–4335 (2006 & West Supp. 2010). 5
Among other things, USERRA broadly requires an employer to promptly
reemploy a returning reservist to “the position for which qualified that he
or she would have attained if continuously employed,” or, in the case of
active service periods lasting 91 days or more, “a position of like seniori-
ty, status, and pay.” 5 C.F.R. § 353.207 (2009); see 38 U.S.C. § 4312. To
take advantage of this entitlement, an employee must timely report for
work or submit an application for reemployment “upon the completion of
a period of service in the uniformed services” and by a statutorily pre-
scribed deadline. 38 U.S.C. § 4312(e)(1). Persons “whose period of
service in the uniformed services was less than 31 days” must report to
their employer on the first work day following completion of their ser-
vice, a period allowing for safe travel back to their residence, and an
4 Section 4312(d) excuses employers from their reemployment obligations when they
are able to demonstrate: (1) “the employer’s circumstances have so changed as to make
such reemployment impossible or unreasonable”; (2) “such employment would impose
an undue hardship on the employer”; or (3) the reservist was employed for “a brief,
nonrecurrent period” prior to active service and “there is no reasonable expectation that
such employment will continue indefinitely or for a significant period.” 38 U.S.C.
§ 4312(d)(1).
5 USERRA’s general purposes are: “(1) to encourage noncareer service in the uni-
formed services by eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service; (2) to minimize the disruption to the
lives of persons performing service in the uniformed services as well as to their employ-
ers, their fellow employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such service; and (3) to prohibit
discrimination against persons because of their service in the uniformed services.” 38
U.S.C. § 4301(a) (2006).
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Entitlement to Reservist Differential Pay
additional “eight hours.” Id. § 4312(e)(1)(A)(i). Those who serve for
“more than 30 days but less than 181 days” must submit an “application
for reemployment . . . not later than 14 days after the completion” of
their service. Id. § 4312(e)(1)(C). And those who serve for “more than
180 days” must submit an application for reemployment “not later than
90 days after the completion” of their service. Id. § 4312(e)(1)(D). 6
II.
Your question regarding the duration of a federal employee’s entitle-
ment to “reservist differential pay” arises because two provisions of the
original statutory text could be read to give conflicting indications as to
how long that entitlement was intended to last. On the one hand, section
5538(a) declared that eligible employees are “entitled, while serving on
active duty, to receive, for each pay period described in subsection (b),”
reservist differential pay—a provision that, at least in isolation, seemed to
indicate that employees would be entitled to receive such pay only “while
serving on active duty.” 5 U.S.C. § 5538(a) (emphasis added). On the
other hand, section 5538(b)—which described the pay periods during
which an employee is entitled to receive reservist differential pay—
provided that the “period . . . during which such employee is entitled to”
differential pay “shall include any period of time . . . within which an
employee may report or apply for employment or reemployment following
completion of service on active duty.” Id. § 5538(b)(1)(A) & (2)(B) (em-
phasis added). In contrast to section 5538(a), section 5538(b)(2)(B) ap-
peared to contemplate that an eligible employee could receive differential
pay during periods that “follow[] completion of service on active duty.”
In the time since we received your opinion request, Congress has
amended section 5538 by, in effect, deleting subsection (b)(2). See
Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. C,
6 These deadlines are extended in the case of “[a] person who is hospitalized for, or
convalescing from, an illness or injury incurred in, or aggravated during, the performance
of service in the uniformed services.” 38 U.S.C. § 4312(e)(2)(A). Such a person may
report or apply for reemployment after recovering from the illness or injury. This recov-
ery period is limited to two years, except where reporting for reemployment within that
period is made impossible or unreasonable by circumstances beyond the person’s control.
Id.
197
34 Op. O.L.C. 193 (2010)
§ 745(a), 123 Stat. 3034, 3219 (2009) (deleting the original subsection
(b) and inserting in its place a new subsection (b) that contains all of the
language of former subsection (b)(1) and none of the language of former
subsection (b)(2)). The conference report termed this change a “tech-
nical correction” to section 5538, but did not otherwise discuss the
intended purpose or import of this amendment. See H.R. Rep. No. 111-
366, at 946 (2009) (Conf. Rep.). As we understand it, OPM and DoD
agree that this amendment “clarif[ies] that the reservist differential is
not payable for periods following completion of active duty.” OPM,
Reservist Differential, Guidance, Qualifying Periods, http://www.opm.
gov/reservist/guidance/qualifying.asp (last visited ca. 2010). However,
your opinion request remains outstanding, in light of continued disa-
greement regarding the proper interpretation of the original statute, as it
applies to those who served on active duty and were entitled to re-
employment rights during the pre-amendment period.
A.
The principle that “[a] statute should be construed so that effect is giv-
en to all its provisions so that no part will be inoperative or superfluous,
void or insignificant” is “one of the most basic interpretive canons.”
Corley v. United States, 129 S. Ct. 1558, 1566 (2009). See also, e.g.,
Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 489 n.13 (2004)
(“It is . . . a cardinal principle of statutory construction that a statute
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.”)
(quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation
marks omitted)); Market Co. v. Hoffman, 101 U.S. 112, 115–16 (1879) (“a
statute ought, upon the whole, to be so construed that, if it can be prevent-
ed, no clause, sentence, or word shall be superfluous, void, or insignifi-
cant”); Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (quoting Reiter
v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“we are obliged to give
effect, if possible, to every word Congress used”). When presented with
provisions that appear to be in conflict, we must therefore endeavor to
reconcile those provisions by adopting a construction that refrains from
treating any provision as void or meaningless, in accordance with the
maxim that “[t]he cardinal principle of statutory construction is to save
and not to destroy.” United States v. Menasche, 348 U.S. 528, 538–39
198
Entitlement to Reservist Differential Pay
(1955); see also Moskal v. United States, 498 U.S. 103, 109 (1990) (re-
jecting proposed construction that would fail to give meaning to certain
statutory language because such a reading would “violate[] the established
principle that a court should give effect, if possible, to every clause and
word of a statute”) (quotation marks omitted); Hoffman, 101 U.S. at 116(“every part of a statute must be construed in connection with the whole,
so as to make all the parts harmonize, if possible, and give meaning to
each”); 2A Norman J. Singer & J.D. Shamble Singer, Sutherland Statutes
and Statutory Construction § 46.6 (7th ed. 2007) (“Singer”) (“No clause,
sentence or word shall be construed as superfluous, void or insignificant if
a construction can be found which will give force to and preserve all the
words of the statute.”).
It is clearly possible to read subsection (a)’s “while serving on active
duty” provision, at least in isolation, to permit employees to receive
reservist differential pay only for pay periods that occur within the period
of active duty. However, adopting this reading of subsection (a) would
deprive a substantial part of subsection (b) of meaning, since the latter
provision states that such pay “shall by payable with respect to each pay
period . . . during which such employee is entitled to re-employment
rights under chapter 43 of title 38” (5 U.S.C. § 5538(b)(1)), a category
that is then expressly defined to include the time “following completion of
service on active duty” (5 U.S.C. § 5538(b)(2)(B) (emphasis added)).
Reading subsection (a) as controlling the meaning of section 5538 in this
way thus would effectively read subsection (b)(2)(B) out of the statute
and produce a reading that contradicts its plain language—a result that
would be difficult to square with the statutory construction principles we
have just described. See 2A Singer § 46:6 (“A statute should be construed
so that effect is given to all its provisions, so that no part will be inopera-
tive or superfluous, void or insignificant, and so that one section will not
destroy another unless the provision is the result of obvious mistake or
error.”); Menasche, 348 U.S. at 538–39 (“It is our duty to give effect, if
possible, to every clause and word of a statute, rather than to emasculate
an entire section”) (quotation marks omitted). Reading subsection (a) in
this manner would also introduce an internal tension in subsection (a)
itself: subsection (a) states that eligible employees “shall be entitled” to
receive reservist differential pay “for each pay period described in subsec-
tion (b),” but on this interpretation of section 5538, such employees in
199
34 Op. O.L.C. 193 (2010)
fact would not be entitled to receive differential pay for each pay period
described in subsection (b)—they would not receive such pay for the
periods “following completion of service on active duty” described in
subsection (b)(2)(B).
In view of these difficulties, we believe subsection (a) should not be
read as restricting reservist differential pay to those periods during which
a reservist is actually serving on active duty if another plausible reading
of the statute is available. And here, we think such a reading is available:
it is also possible to read subsection (a)’s phrase “entitled, while serving
on active duty, to receive” reservist differential pay to mean that an em-
ployee’s entitlement to receive such pay accrues and vests during his or
her service on active duty. On this reading, the employee accrues the
“entitle[ment]” to receive reservist differential pay during “each pay
period described in subsection (b)” by virtue of service on active duty.
However, the duration of the entitlement that would thereby vest, on this
reading, would not be limited solely to the term of active service, but
would also encompass “each pay period described in subsection (b),”
including those periods that “follow[] completion of service on active
duty.” This reading harmonizes subsection (a) and subsection (b)(2)(B),
avoiding the apparent conflict that would arise from the narrower reading
of subsection (a) discussed above.
In addition to avoiding any apparent conflict with subsection (b), this
reading gives distinct meaning to each of the references in subsection (a)
to “active duty.” The first part of subsection (a) states that the entitlement
to reservist differential pay applies to employees who are absent from
federal employment “in order to perform active duty in the uniformed
services pursuant to a call or order to active duty” under certain specified
statutory provisions. This language makes clear that an employee qualifies
for reservist differential pay only if he or she is absent for the purpose of
serving on active duty, as opposed to other forms of service, and only
if that service on active duty is pursuant to a call or order under one of the
referenced statutory provisions. 7 Subsection (a) then refers to “active
7 Reemployment rights under chapter 43 apply to persons “whose absence from a posi-
tion of employment is necessitated by reason of service in the uniformed services.” 38
U.S.C. § 4312(a). The term “service in the uniformed services,” in turn, is defined as “the
performance of duty on a voluntary or involuntary basis in a uniformed service under
200
Entitlement to Reservist Differential Pay
duty” a second time, in the provision at issue here, stating that an eligible
employee “shall be entitled, while serving on active duty, to receive”
reservist differential pay. On the reading proposed here, this second
reference to “active duty” clarifies that the right to reservist pay accrues
and vests only if the employee actually performs active duty.
It is true that the word “while” suggests a bounded duration, circum-
scribed by the time period or event to which it refers, rather than an
open-ended period initiated by that time period or event. See Webster’s
Third New International Dictionary 2604 (1993) (defining “while,” when
used as a conjunction in similar contexts, to mean “during the time that,”
“until the end of the time that,” or “during which time”). And on our
reading, the period in which an employee would receive reservist differ-
ential pay would not be confined to the bounded duration of the employ-
ee’s period of active service. However, our reading is nonetheless con-
sistent with understanding the word “while” to connote a circumscribed
duration, because the employee’s receipt of reservist differential pay
would be defined, in two distinct but related respects, by the period of
time that the employee spends in active service. First, during each day of
active duty—i.e., “while serving on active duty”—an eligible employee
is entitled to reservist differential pay that corresponds to that day. Sec-
ond, and simultaneously, each day of active duty counts towards the total
length of service that determines, in turn, the period following the com-
pletion of active duty during which the employee is entitled to reemploy-
ment rights and, consequently, reservist differential pay. See 5 U.S.C.
§ 5538(b)(2)(B).
We therefore do not believe that section 5538 presents the rare circum-
stance in which it is necessary to resort to the “elimination of words” in
order to “give [an] act meaning, effect or intelligibility” or “avoid incon-
sistencies and to make the provisions of the act harmonize.” 2A Singer
§ 47:37. As we have explained above, consistent with the view expressed
by OPM, we believe there is a reading of the statute that is permissible
and gives meaning to all its provisions. As such, we do not face a circum-
competent authority and includes active duty, active duty for training, initial active duty
for training, inactive duty training, full-time National Guard duty, a period for which a
person is absent . . . for the purpose of an examination to determine the fitness of the
person to perform any such duty, and a period for which a person is absent . . . for the
purpose of performing funeral honors duty.” 38 U.S.C. § 4303(13).
201
34 Op. O.L.C. 193 (2010)
stance comparable to that at issue in Chickasaw Nation v. United States,
534 U.S. 84 (2001), where the Supreme Court adopted a construction of a
federal statute that concededly “deprive[d] the words ‘chapter 35’ of any
effect,” id. at 93. The unusual circumstances of that case compelled the
Court to conclude, after applying ordinary tools of statutory construction,
that “no other reasonable reading of the statute” was available. Id. at 89.
Moreover, the language the Court deprived of meaning in Chicksaw
Nation appeared in an illustrative parenthetical. See id. at 90 (emphasizing
that the words “chapter 35” appeared in a parenthetical phrase and that
“[t]he use of parentheses emphasizes the fact that that which is within is
meant simply to be illustrative, hence redundant”); id. at 89–90 (finding
that “the language outside the parenthetical is unambiguous,” and “too
strong to bend as the Tribes would wish—i.e., so that it gives the chapter
35 reference independent operative effect,” without “seriously rewriting
the language of the rest of the statute” or resorting to a construction “far
too convoluted to believe Congress intended it”); id. at 91 (noting that the
legislative history of the provision at issue “on balance supports our
conclusion”). Here, in contrast, the language that would be disregarded if
we did not adopt our reading is not a single example in an arguably illus-
trative parenthetical, but rather an entire subsection—one that employs
mandatory language and thus suggests on its own terms that it was intend-
ed to have substantive meaning. See 5 U.S.C. § 5538(b)(2) (“the period
during which an employee is entitled to reemployment rights under chap-
ter 43 of title 38 . . . (B) shall include any period of time specified in
section 4312(e) of title 38”). There is nothing in the text to indicate that
Congress intended subsection (b)(2)(B) to be merely illustrative, or oth-
erwise ineffectual. We therefore do not believe that the provision at issue
here is one that may be treated as void, in contravention of the ordinary
rule that no portion of a statute should be treated as “inoperative
or superfluous, void or insignificant.” Corley, 129 S. Ct. at 1566.
We also do not think that the inclusion of subsection (b)(2)(B) can be
viewed as “the result of obvious mistake or error.” See 2A Singer § 46:6.
So far as we have been able to discern, all but one of the precursors to
the bill originally enacted as section 5538, dating back as far as 2001,
included subsection (b)(2)(B), cast in similar or even identical terms.
See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,
107th Cong. (introduced Dec. 13, 2001). The only exception of which we
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Entitlement to Reservist Differential Pay
are aware was H.R. 4247, introduced in 2007. It too would have provided
for reservist differential pay following the completion of active service,
even though, unlike subsection (b)(2)(B), it did not expressly reference
USERRA’s reemployment rights provisions to define the scope of that
coverage. 8 Moreover, we know of no precedent for treating such a lengthy
statutory phrase as the product of mere inadvertence or error. We would
be particularly reluctant to accord such treatment to subsection (b)(2)(B)
because the text of section 5538 suggests that the drafters viewed subsec-
tions (a) and (b)—including subsection (b)(2)(B)—as parts of an integrat-
ed whole that defined the benefit that Congress intended to confer. Sub-
section (a) expressly cross-references subsection (b) in describing the
period for which employees will be entitled to receive reservist differen-
tial pay; subsection (b)(2)(B) clarifies that the period “during which such
employee is entitled to reemployment rights under chapter 43 of title 38,”
as that phrase is used in subsection (b)(1)(A), “shall include any period of
time” “within which an employee may report or apply for employment or
reemployment rights following completion of service on active duty”; and
subsection (b)(2)(B) expressly refers back to subsection (a)’s “call or
order to active duty” requirement. In view of these circumstances, we are
not persuaded that the inclusion of subsection (b)(2)(B) could be reasona-
bly viewed as the result of inadvertence. The better course, we think, is to
accord meaning to that subsection, in keeping with its plain terms.
We are aware of the argument that the statute should not be so con-
strued because it is doubtful that Congress would have intended that
“reservist differential pay would continue during periods in which the
[covered employee] is not serving on active duty and not receiving mili-
tary pay,” particularly given that subsection (a) of the statute defines the
amount of the reservist differential as an “amount equal to the amount by
which [a covered employee’s] basic pay . . . exceeds [the covered em-
ployee’s] military pay and allowances.” DoD E-mail (emphasis removed)
(citing 5 U.S.C. § 5538(a)). We acknowledge that the statute does not
8 See H.R. 4247, 110th Cong. § 4(b)(1) (introduced Nov. 15, 2007) (providing for
reservist differential pay “(A) while the employee serves on active duty for a period of
more than 30 days; (B) while the employee is hospitalized for, or convalescing from, an
illness or injury incurred in, or aggravated during, the performance of such active duty;
or (C) during the 14-day period beginning at the end of such active duty or the end of the
period referred to in subparagraph (B)”).
203
34 Op. O.L.C. 193 (2010)
expressly contemplate that the amount of military pay and allowances
allocable to a particular pay period might be zero: subsection (a) refers to
“the amount of pay and allowances” allocable to a given pay period, not,
for example, “the amount, if any, of pay and allowances” allocable to a
given period. See 5 U.S.C. § 5538(a)(2); cf. id. § 5538(a)(1) (referring to
the amount, “if at all,” by which basic pay exceeds military pay for a
given pay period). But reservist differential pay may still be calculated
under subsection (a) even if military pay and allowances are zero. And
this argument with respect to subsection (a) does not indicate any alter-
nate way of giving meaning to subsection (b)(2)(B)—the difficulty that,
as discussed above, necessitates our approach.
The interpretation set forth above, moreover, is consistent with the
overall purpose of the statutory scheme—to prevent federal employees
from suffering a reduction in pay and thereby incurring a financial bur-
den in the performance of active duty pursuant to one of the referenced
statutory provisions. See 5 U.S.C. § 5538(a); cf. 149 Cong. Rec. 5764
(2003) (statement of Sen. Durbin, introducing a prior version of section
5538) (“I would like to discuss the financial burden faced by many of the
men and women who serve in the military Reserves or National Guard
and who are forced to take unpaid leave from their jobs when called to
active duty . . . . It is unfair to ask the men and women who have volun-
teered to serve their country . . . to also face a financial strain on their
families.”). Section 5538’s reference to USERRA to determine the pay
periods during which reservist pay is available is consistent with this
objective. USERRA operates to “minimize the disruption to the lives of
persons performing service in the uniformed services as well as to their
employers.” 38 U.S.C. § 4301(a) (2006). As the House report accompa-
nying USERRA states, Congress included a reemployment period after
uniformed service because “[o]ne of the basic purposes of the reemploy-
ment statute is to maintain the servicemember’s civilian job as an ‘un-
burned bridge.’” H.R. Rep. No. 103-65, at 26 (1993). The period ensures
that servicemembers are “not pressed for a decision immediately on
[their] discharge, but ha[ve] the opportunity to make plans for the future
and readjust [themselves] to civilian life.” Id. (quoting Fishgold v. Sulli-
van Drydock & Repair Corp., 328 U.S. 275, 284 (1946)). Accordingly, it
is entirely consistent with Congress’s objective to mitigate the financial
burden of those called to active duty to provide, when the term of active
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Entitlement to Reservist Differential Pay
duty ends, reservist differential pay during their period of statutory
readjustment to civilian life—a period during which they could otherwise
have remained gainfully employed at their original government job had
they not been ordered to active duty.
For the reasons discussed above, we think the better reading of section
5538, viewed as a whole, would permit eligible employees to receive
differential pay in accordance with the plain language of subsection
(b)(2)(B). That reading is also consistent with and gains support from
the interpretive canon that “provisions for benefits to members of the
Armed Services are to be construed in the beneficiaries’ favor.” King v.
St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991) (interpreting a provi-
sion of the Veterans’ Reemployment Rights Act, a USERRA precursor);
see also, e.g., Fishgold, 328 U.S. at 285 (“This legislation [the Selective
Training and Service Act of 1940] is to be liberally construed for the
benefit of those who left private life to serve their country in its hour of
great need.”).
B.
In our view, neither the pre-enactment nor post-enactment legislative
history of section 5538 offers much aid in interpreting the original text.
Beginning in about 2001, numerous measures were introduced in both
houses of Congress regarding reservist differential pay. Many of these
bills were phrased in terms very similar to the bill first enacted as section
5538. However, there were significant differences in certain bills. For
example, the earliest bills omitted the phrase “while serving on active
duty,” from subsection (a), thus providing simply that that eligible feder-
al employees would be “entitled to receive” a reservist differential “for
each pay period described in subsection (b)”—a subsection that, in each
case, included the language eventually enacted as subsection (b)(2)(B).
See, e.g., H.R. 3337, 107th Cong. (introduced Nov. 16, 2001); S. 1818,
107th Cong. (introduced Dec. 13, 2001); H.R. 217, 108th Cong. (intro-
duced Jan. 7, 2003). If such a bill had been adopted by Congress, the
apparent tension in the pre-amendment text of subsections (a) and (b) of
section 5538 would not have been presented. That tension first emerged
in 2003. See S. 593, 108th Cong. (introduced Mar. 11, 2003). As origi-
nally introduced, S. 593 did not contain the phrase “while serving on
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34 Op. O.L.C. 193 (2010)
active duty” in subsection (a). That phrase was added in committee, in
the same place it appears in the first-enacted version of subsection (a).
See S. 593, 108th Cong. (reported out of Committee on Governmental
Affairs, Nov. 16, 2004). Notably, however, the conference report for the
amended S. 593 does not list the addition of the phrase “while serving on
active duty” as among the changes made to the bill, or discuss the intend-
ed interplay between subsections (a) and (b). See S. Rep. No. 108-409
(Nov. 16, 2004).
It appears that nearly every bill subsequently introduced regarding re-
servist differential pay incorporated both the phrase “while serving on
active duty” in subsection (a) and the phrase “following completion of
service on active duty” in subsection (b)(2)(B), just as did the bill that
ultimately became law. See, e.g., S. 989, 109th Cong. (introduced May
10, 2005); H.R. 5525, 109th Cong. (introduced June 6, 2006); Financial
Services and General Government Appropriations Act, 2009, S. 3260,
110th Cong. § 750(a) (introduced July 14, 2008). But see H.R. 4247,
110th Cong. § 4 (introduced Nov. 15, 2007) (omitting the “while serving
on active duty” language from subsection (a) and providing in subsection
(b) that reservist differential payments would be due “(A) while the
employee serves on active duty for a period of more than 30 days; (B)
while the employee is hospitalized for, or convalescing from, an illness
or injury incurred in, or aggravated during, the performance of such
active duty; or (C) during the 14-day period beginning at the end of such
active duty or the end of the period referred to in subparagraph (B).”).
We are not aware of any legislative history of any of these predecessor
bills that illuminates the question you have asked.
The legislative history of the original enactment similarly sheds little
light on congressional intent. Section 5538 was passed as part of an omni-
bus appropriations bill, and it appears that the only mention of this statute
in the legislative history is contained in an explanatory statement submit-
ted by Representative Obey. That statement says, simply, that “Section
751 provides for nonreduction in pay for Federal employees while serving
in the uniformed services or National Guard.” 155 Cong. Rec. H2704
(daily ed. Feb. 23, 2009).
There have been some significant post-enactment developments, al-
though we ultimately do not believe that Congress’s subsequent actions
in this area provide clear direction as to its purpose in enacting the origi-
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Entitlement to Reservist Differential Pay
nal statute. Cf. PBGC v. LTV Corp., 496 U.S. 633, 650 (1990) (caution-
ing that “subsequent legislative history is a hazardous basis for inferring
the intent of an earlier Congress”) (internal quotation marks omitted). As
we previously noted, Congress amended section 5538 in December 2009,
nine months after it was originally enacted. Both OPM and DoD have
expressed the view, on which we offer no opinion, that, as revised, sec-
tion 5538 no longer permits employees to receive reservist differential
pay during the period after active service during which they continue to
enjoy reemployment rights. See OPM, Reservist Differential, Guidance,
Qualifying Periods, http://www.opm.gov/reservist/guidance/qualifying.
asp (last visited ca. 2010). In some circumstances, when “a former statute
is amended, or a doubtful meaning clarified by subsequent legislation,
such amendment or subsequent legislation is strong evidence of the
legislative intent of the first statute.” 2A Singer § 49:11; see also Bailey
v. Clark, 88 U.S. 284, 288 (1874) (statutory amendment “was evidently
intended to remove any doubt previously existing as to the meaning of
the statute and declare its true construction and meaning”); Brown v.
Marquette Sav. & Loan Ass’n, 686 F.2d 608, 615 (7th Cir. 1982) (same);
Porter v. Comm’r of Internal Revenue, 856 F.2d 1205, 1209 (8th Cir.
1988) (“Amending legislation is perceived as clarifying, not changing, an
original statute’s intended meaning when a conflict of statutory interpre-
tation has arisen.”).
However, a statutory amendment does not invariably mean that the re-
vised statute and the original statute share a common meaning. To the
contrary, the Supreme Court has acknowledged a “canon of statutory
construction requiring a change in language to be read, if possible, to have
some effect,” Am. Nat’l Red Cross v. S.G., 505 U.S. 247, 263 (1992), and
has stated that “[t]he deliberate selection of language . . . differing from
that used in the earlier acts indicates that a change of law was intended.”
Brewster v. Gage, 280 U.S. 327, 337 (1930) (“There is no support for the
suggestion that subdivision (5) expressed the meaning, or was intended to
govern or affect the construction, of the earlier statutes.”); see also 2A
Singer § 49:11 (“A number of cases have held that where an act is amend-
ed or changed so that doubtful meaning is resolved such action constitutes
evidence that the previous statue meant the contrary.”). Accordingly, the
significance of a statutory revision—i.e., whether it clarifies the original
statute, or amends it—is appropriately determined by reference to the text
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34 Op. O.L.C. 193 (2010)
of the amendment and the context surrounding its adoption. See, e.g.,
S.G., 505 U.S. at 263–64 n.15 (relying on an absence of any indication in
the “Advisory Report, the document both Houses of Congress acknowl-
edged as the source for the amendment,” in rejecting the view that the
amendment was intended merely to clarify “the Red Cross’s clear pre-
amendment capacity to sue in federal court” rather than amend the law);
Barnes v. Cohen, 749 F.2d 1009, 1015–16 (3d Cir. 1984) (determining in
light of legislative history and a subsequent agency interpretation that
Congress’s purpose in amending an ambiguous statute was to provide
“‘clarification’ rather than a ‘change’”).
Here, there is no clear textual indication that the amendment was meant
to explain the meaning of the existing statute, rather than modify its
meaning—indeed, the statute itself is simply silent on that point. It is true
that the conference report described the amendment as a “technical cor-
rection” to the existing law, see H.R. Rep. No. 111-366, at 946 (2009)
(Conf. Rep.), and that, in some instances, the phrase “technical correc-
tion” is used to denote that Congress does not intend to make a substan-
tive change to an existing provision. See, e.g., N. Broward Hosp. Dist. v.
Shalala, 172 F.3d 90, 97 (D.C. Cir. 1999) (where statutory amendment
“was styled a ‘technical correction,’” “only clarification and not substan-
tive change was intended”); Wilhelm Pudenz, GmbH v. Littlefuse, Inc.,
177 F.3d 1204, 1211 (11th Cir. 1999) (“While the text of the corrections
does not explicitly tell us whether the additions and subtractions consti-
tute new law, their designation as technical corrections tends to indicate
that they were merely changes meant to clarify existing law.”); In re
Chateaugay Corp., 89 F.3d 942, 954 (2d Cir. 1996) (“By labelling the
1994 change a ‘technical correction,’ Congress recognized that the [prior]
amendment did not purport to change the substantive meaning of the
law.”). However, courts have also recognized that such labels are not
determinative of a statute’s meaning and that amendments described by
Congress as “technical” sometimes make significant changes in existing
law. See, e.g., Graham County Soil & Water Conserv. Dist. v. United
States ex rel. Wilson, 130 S. Ct. 1396, 1407–08 (2010) (“Significant
substantive changes—including the introduction of the term we are con-
struing in this case—were inserted without floor debate, as ‘technical’
amendments.”); United States v. R.L.C., 503 U.S. 291, 305 n.5 (1992)
(“The dissent takes us to task for reliance upon a ‘technical amendment.’
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Entitlement to Reservist Differential Pay
But a statute is a statute, whatever its label.”); Pub. Emps. Ret. Bd. v.
Shalala, 153 F.3d 1160, 1162 (10th Cir. 1998) (“Congress did not consid-
er the 1984 change to be dramatic, labeling the amendment a technical
correction. Nonetheless, that technical correction has become very im-
portant” because it made certain retirement plan contributions subject to
FICA taxes.); cf. H.R. 3658, H.R. 8321, and Related Bills, Congressional
Review of Administrative Rulemaking: Hearing Before the Subcomm. on
Admin. L. & Gov’t Rels. of the H. Committee on the Judiciary, 94th Cong.
376 (1975) (statement of Antonin Scalia, Assistant Attorney General,
Office of Legal Counsel) (“Presidents have sometimes vetoed ‘clarifying’
legislation on the grounds that, in their view, the amendment did not
clarify but vitiated the intent of the original act.”). Accordingly, the mere
fact that the committee labeled this change a “technical correction” does
not establish that it was intended to clarify the statute’s meaning, rather
than amend it.
III.
Taken as a whole, and giving effect to each of its provisions, the text
of section 5538 prior to its recent amendment is consistent with the view
that the entitlement to reservist differential pay extends to the period
following the completion of active duty service during which a returning
reservist may apply or report for reemployment at his or her civilian
workplace. Accordingly, we conclude that the pre-amendment version of
section 5538 entitled federal employees to receive reservist differential
pay during “any period of time specified in section 4312(e) of title 38
within which an employee may report or apply for employment or re-
employment following completion of service on active duty.” 5 U.S.C.
§ 5538(b)(2)(B).
JEANNIE S. RHEE
Deputy Assistant Attorney General
Office of Legal Counsel
209