Whether 10 U.S.C. § 12301(d) is 'a provision of law referred to in section 101(a)(13)(B) of title 10

QUESTION PRESENTED Federal employees at every GS level serve in the military reserves and National Guard, often at ranks with salaries far below their civilian pay. In the differential pay statute, 5 U.S.C. § 5538, Congress eliminated the severe financial penalty that these thousands of federal employees would otherwise suffer from serving on active duty by permitting them to collect differential pay for periods when they are called to qualifying active duty. The differential pay statute provides that qualifying active duty includes “a call or order to active duty under * * * a provision of law referred to in section 101(a)(13)(B) of title 10.” Section 101(a)(13)(B) refers to the following provisions of law: “section 688, 12301(a), 12302, 12304, 12304a, 12305, or 12406 of this title, chapter 13 of this title, section 3713 of title 14, or any other provision of law during a war or during a national emergency declared by the President or Congress.” (emphasis added). Numerous other federal benefits, including two provisions of the Family and Medical Leave Act, base coverage on an identical cross-reference. In a decision that contradicts longstanding interpretations of that cross reference, the Federal Circuit held that 10 U.S.C. § 12301(d), one of the most commonly used provisions for activating reservists and Guard members, is not a “provision of law referred to in section 101(a)(13)(B) of title 10.” The question presented is: Whether 10 U.S.C. § 12301(d) is “a provision of law referred to in section 101(a)(13)(B) of title 10.”