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Feliciano v. Department Of Transportation
Tens of thousands of federal civilian employees serve the nation as military reservists. When called to active duty, these reservists often receive less pay than they earn in their civilian jobs. To address this gap, Congress adopted a “differential pay” statute requiring the government to make up the difference between a federal civilian employee’s military and civilian pay in various circumstances, including when the reservist is called to active duty “during a national emergency.”
At issue in this case is whether this language guarantees differential pay when a reservist serves on active duty while a national emergency is ongoing, or whether it requires proving a “substantive connection” between the service and a particular national emergency.
Nick Feliciano, an air traffic controller with the Federal Aviation Administration, also served as a Coast Guard Reserve petty officer. In July 2012, the Coast Guard ordered him to active duty under Section 12301(d) of federal law, which authorizes activation of reservists with their consent. He remained on active duty until February 2017, serving aboard a Coast Guard ship escorting vessels to and from harbor. His orders noted that he was called to active duty “in support of several “contingency [operations],” including Operations Iraqi Freedom and Enduring Freedom. Throughout this period, Feliciano didn’t receive differential pay for his service.
After the Merit Systems Protection Board rejected his differential-pay claim, he appealed to the Federal Circuit.
Feliciano argued that two statutes entitled him to differential pay: Section 5538(a) and Section 101(a)(13)(B). Section 5538(a) requires differential pay for federal civilian employee reservists ordered to active duty under Section 101(a)(13)(B). That section defines “contingency operation” to include operations that result in the call to active duty of servicemembers under several enumerated statutes “or any other provision of law during a war or during a national emergency declared by the President or Congress.” While acknowledging he was not called up under any of the specifically listed statutes, Feliciano contended that the final phrase entitled him to differential pay because he was ordered to active duty under any other provision of law during a national emergency.
The Federal Circuit disagreed. Following its earlier decision in Adams v. Department of Homeland Security, the lower court held that when a reservist seeks differential pay for service during a national emergency, they must show not only that they served while a national emergency was ongoing, but also that a substantive connection linked their service to a particular national emergency.
The U.S. Supreme Court held that a federal civilian employee called to active duty pursuant to any other provision of law during a national emergency as described in Section 101(a)(13)(B) is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency.
The high court reversed the lower court’s ruling and remanded the case.
Justice Neil Gorsuch delivered the opinion of the court, in which Chief Justice John Roberts Jr. and Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett joined. Justice Clarence Thomas filed a dissenting opinion, in which Justices Samuel Alito Jr., Elena Kagan and Ketanji Brown Jackson joined.
The dissenting justices disagreed with the majority’s conclusion that a reservist need only serve during a declared national emergency without any showing their service is connected to a particular emergency.
“The question before us is what Congress meant by the phrase ‘during a national emergency,’” Thomas wrote in the dissenting opinion. “Depending on the context, that phrase could require only that a national emergency be concurrently ongoing, or it could require that a reservist’s service also be in support of a particular national emergency. Given the context here, I would conclude that a reservist is called to serve ‘during a national emergency’ only if his call comes in the course of an operation responding to a national emergency.”