Adams v. Dhs, 3 F.4th 1375

Bryan Adams, a Customs and Border Patrol HR specialist and Arizona Air National Guard member, performed three periods of Guard service in 2018: two activations under 10 U.S.C. § 12301(d) (Apr 11–Jul 13 and Jul 28–Sep 30, both labeled “non-contingency” and supporting MPA tours) and annual training under 32 U.S.C. § 502(a) (Jul 18–30).
Adams requested reservist differential pay under 5 U.S.C. § 5538(a) (the difference between civilian pay and military pay); the agency denied the requests as not qualifying under the statute.
Adams appealed to the Merit Systems Protection Board (MSPB) alleging a USERRA violation; an Administrative Judge ruled against him, finding no evidence his military service was a motivating factor in the denial; the ruling became final (no petition for review).
On appeal to the Federal Circuit, the court agreed the Board erred to the extent it required proof that military service was a motivating factor (because differential pay is available only to service members), but nonetheless considered statutory entitlement to differential pay.
The court analyzed whether Adams’s training constituted "active duty" and whether his § 12301(d) activations qualified as service in a "contingency operation" as defined in 10 U.S.C. § 101(a)(13)(B), and concluded none of his service met § 5538(a) requirements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Adams had to prove his military service was a motivating factor in denial of differential pay under USERRA	Adams argued Board erred; differential pay is available only to service members so motivating-factor proof not required	Agency relied on Board’s motivating-factor analysis to justify denial	Court: motivating-factor proof not required when benefit is only for service members; but entitlement still fails on statutory grounds
Whether 32 U.S.C. § 502(a) annual training qualifies as "active duty" under § 5538(a)	Adams: training period should count toward differential pay entitlement	Agency: training is full-time National Guard duty excluded from the definition of "active duty"	Held: Training under § 502 is full-time National Guard duty and is excluded from "active duty"; no differential pay for training
Whether activations under 10 U.S.C. § 12301(d) qualify as service in a "contingency operation" for § 5538(a)	Adams: § 12301(d) activations should qualify because a national emergency has been continuously declared since 9/11	Agency: § 12301(d) is voluntary/member-consent activation and OPM guidance excludes such voluntary duty from qualifying; the statutory definition requires a nexus to war/national emergency provisions	Held: § 12301(d) voluntary activations unconnected to the emergency do not meet the "contingency operation" definition; Adams’s § 12301(d) service was non-contingency and not eligible

Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307 (Fed. Cir. 2003) (standard for review of MSPB decisions)
O'Farrell v. Dep't of Def., 882 F.3d 1080 (Fed. Cir. 2018) (analyzed when non-contingency activations support contingency operations)
Sheehan v. Dep't of the Navy, 240 F.3d 1009 (Fed. Cir. 2001) (USERRA motivating-factor framework)
Butterbaugh v. Dep't of Justice, 336 F.3d 1332 (Fed. Cir. 2003) (benefit-only rule: no motivating-factor proof when benefit only available to service members)
Maiers v. Dep't of Health & Hum. Servs., [citation="524 F. App'x 618"] (Fed. Cir. 2013) (applies Butterbaugh principle)
Cir. City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (ejusdem generis canon of statutory construction)