The Reserve Organization of America has filed an amicus brief to
the U.S. Court of Appeals supporting a National Guardsman denied
differential pay.
WASHINGTON, DC, UNITED STATES OF AMERICA, November 3, 2021 – The congressionally chartered Reserve Organization
of America in collaboration with Wiley Rein LLP has filed an amicus brief to
the United States Court of Appeals for the Federal Circuit supporting a
National Guardsman denied differential pay
by the federal government for
the period of his activation in support of contingency operations.
To maintain a ready and strong national defense after World War II, Congress passed reemployment protections to boost the recruitment
and retention of non-career servicemembers in the National Guard and Reserves. These reemployment rights expanded, culminating in the
1994 Uniform Services Employment and Reemployment Rights Act (USERRA), which protects Reserve and Guard servicemembers
against adverse employment actions.
One protection is the differential pay statute, which entitles reservists
mobilized to active duty from the federal civilian workforce to increased
compensation to close the gap between the servicemember’s military and
civilian compensation. This differential pay is available throughout the
entire period the servicemember is entitled to re-employment rights under
USERRA.
Employers from aerospace to grocery chains and several state
governments elect to cover pay differences for their employees who are
activated to serve in their military jobs.
The amicus brief filed by ROA supports a rehearing of Bryan Adams v.
Department of Homeland Security.
Adams, an Air National Guardsman
and an employee of the Department of Homeland Security Customs and
Border Protection, was activated and performed three periods of National
Guard military service.
Adams applied for differential pay and was denied, as his activation was on “non-contingency” orders, making him, according to DHS,
ineligible to receive differential pay.
His appeals were denied with the explanation that the work he was doing was “in support” of a
contingency operation, not directly working in a contingency operation. ROA maintains that there should be no difference between
supporting and “participating” in contingency operations; both roles are integral to mission success.
Since 9/11, more than one million members of the Reserve and National Guard have been activated to fight the war on terror. The training
and service of these citizen-warriors is indistinguishable from those service members in the active component.
“ROA is proud to file this amicus brief, defending the employment rights of Mr. Adams, earned with faithful service to the nation,” said
retired Maj. Gen. Jeffrey Phillips, ROA executive director. “Answering the call should not result in financial penalty. Our Reserve and
National Guard have stood shoulder-to-shoulder with the active force throughout this fight for freedom. We are acting to support this patriot
and to create a precedent that stops future abuses dead in their tracks.”
About ROA
ROA, founded in 1922, is America’s only exclusive advocate for the Reserve and National Guard – all ranks, all services. With a focus on
Reserve and National Guard readiness, ROA supports the men and women of America’s Reserve Components, their families, and
veterans of the Reserve force.
Download the entire release here.