Supreme Court Justices Question Reservist Claim for Differential Pay

On December 9, counsel for petitioner Nick Feliciano, an air traffic controller for the Federal Aviation Administration and Coast Guard reserve officer, argued before the Supreme Court that Mr. Feliciano should be entitled to differential pay that matches his federal salary while ordered to active reserve duty.

The question before the Court in Feliciano v. Department of Transportation was whether federal civilian employees called to active duty are entitled to differential pay “during” a national emergency even if, as here, that duty is not directly connected to the national emergency. The air traffic controller performed active duty from October 2012 to September 2014 in support of various military operations, and subsequently was called up to active duty to receive authorized medical care through February 2017. He did not receive differential pay while under these orders.

Per the U.S. Office of Personnel Management, a reservist differential payment is “[a] payment made to eligible Federal civilian employees who are members of the Reserve or National Guard during periods when they are called or ordered to active duty under “certain specified provisions of law,” where the “payment is equal to the amount by which an employee’s projected civilian ‘basic pay’ for a covered pay period exceeds the amount by which an employee’s actual military ‘pay and allowances’” for that period. Essentially, differential pay seeks to compensate the civilian employee serving on military orders at the rate of his federal employee salary, rather than his reservist pay.

The air traffic controller’s activation orders cited President Bush’s Executive Order 13223, which was signed following the September 11, 2001 terrorist attacks on the Pentagon and World Trade Center as justification for his reserve activation “in support of a DOD contingency operation.” He was activated to serve in Charleston, South Carolina, operating a Coast Guard vessel to protect other military vessels entering and exiting the harbor.

Reservist differentials are authorized by 5 U.S.C. § 5538(a), which grants the differential entitlement to reservists serving on active duty under specific statutory sections, including during “contingency operation[s]” that are carried out “during a war or during a national emergency declared by the President or Congress.”

As such, at the Supreme Court, much of the questioning revolved around whether the phrase “during a war or during a national emergency” entitled reservists to the differential so long as there was an active war or national emergency, even if the reservist’s service was not directly tied to the emergency or war. Counsel for the air traffic controller argued that the statutory language was plain, and that the word “during” imposed only a temporal limitation, not a substantive one. In other words, because there were multiple national emergency declarations active during his time of service, he was entitled to differential pay. But the government countered that the word “during” should be read as a substantive limitation, meaning that the service must be performed in the course of addressing a national emergency, rather than simply occurring at the same time.

Justices Coney Barrett, Sotomayor, and Alito all pointed to the fact that there are over 40 national emergencies, several lasting for decades, and that the air traffic controller’s argument would entitle all reservists who were federal civilian employees to differential pay, no matter the substance of their service, until the end of all national emergencies. Those Justices expressed skepticism that the air traffic controller’s position was a realistic reading of the statute and Congressional intent given the duration of national emergencies.

However, the Justices, including Chief Justice Roberts, appeared open to the air traffic controller’s position, with the Chief Justice informing counsel for the government that “just looking at the language” it appeared to have a “pretty strong temporal aspect.”

Listen to the oral argument here.