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A federal appeals court has found that protections for federal employees under the Uniformed Services Employment and Reemployment Rights Act (USERRA) do not make employees eligible for the “Reservist pay differential” if they do not otherwise meet the standards for that benefit.

Case No. 20-1649 before the Court of Appeals for the Federal Circuit involved a DHS employee’s claim that he was improperly denied that benefit for three periods in which he performed military service in the Arizona National Guard. The differential makes up for the difference between an employee’s federal pay and military pay for periods of active duty service for a contingency operation. However, the employee’s orders stated that they were “non-contingency” activation orders.


An MSPB hearing officer determined that the agency did not violate the employee’s protections under USERRA on grounds that the cited service did not meet the eligibility standard of contingency operations.

On appeal, the court made an initial decision that could benefit other employees bringing USERRA claims in the future: it said that while employees generally bear the burden of proof in showing that military service was a substantial or motivating factor in the agency’s denial of a benefit of employment, that does not apply if the benefit at issue is available only to members of the military.

However, the court agreed that the military service the employee cited did not meet the law’s definition of contingency operation, which involves only service in a war or a national emergency declared by the President or Congress.

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2022 Federal Employees Handbook