The Supreme Court ruled 5–4 on April 30 that federal employees who also serve as military reservists have to receive pay equivalent to their civilian salaries when they serve on active duty during national emergencies.
The ruling, which may have an impact on tens of thousands of government employees or more, rejected the federal government’s argument that reservists should receive higher pay only when their duties bear a substantial connection to a specific emergency.
Justice Clarence Thomas filed a dissenting opinion, which was joined by Justices Samuel Alito, Elena Kagan, and Ketanji Brown Jackson.
Air traffic controller Nick Feliciano argued that the Federal Aviation Administration (FAA), which is part of the Department of Transportation, should have provided him full pay after his two years of involuntary work as a reservist for the U.S. Coast Guard were completed in 2014.
Reservists’ pay is often lower than the pay they receive for their federal civilian jobs.
To make sure reservists do not suffer a financial disadvantage for their active-duty service, a differential pay statute states that the government must pay them their salary for the federal civilian job during reserve service.
From July to September 2012, Feliciano’s pay was topped up under the differential pay law, but when his assignment was extended, he received only reservist-level pay for that period, according to court papers.
Feliciano argued he should receive the higher pay for the extra time because the Reservists Pay Security Act requires it when a reservist has to go on duty “during a national emergency declared by the President or Congress.”
Feliciano argued he should receive the higher pay because he served during the multi-year national emergency that was originally declared at the time of the Sept. 11, 2001, terrorist attacks.
The United States Merit Systems Protection Board ruled in July 2022 that Feliciano was not entitled to differential pay for the extra time because that service did not take place “during” a national emergency. The U.S. Court of Appeals for the Federal Circuit affirmed that decision in May 2023.
In its new ruling, the Supreme Court found that the pay of reservists called to active duty during an emergency should be equal to the pay they would have received from their federal civilian jobs.
“A federal civilian employee called to active duty pursuant to ‘any other provision of law ... during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency,” Gorsuch wrote.
Although Feliciano did not serve in Iraq or Afghanistan, his orders said he was called to active duty “in support of” several “contingency operation[s],” including Operation Iraqi Freedom and Operation Enduring Freedom, which encompassed an early phase of the war in Afghanistan, the justice wrote.
The phrase “during a national emergency” covers a reservist’s situation in which he provides needed support for war operations, Gorsuch wrote.
“A reservist’s active-duty service during a national emergency bolsters the government’s capacity to address that emergency; his work on everyday matters may free up others to handle emergent ones,” he wrote.
Although the federal government argued and the Federal Circuit found that a reservist must “prove some additional, substantive connection between his service and a particular national emergency,” Feliciano’s interpretation “is the sounder one,” Gorsuch wrote.
The Supreme Court reversed the Federal Circuit’s decision and sent the case back to that court “for further proceedings consistent with this opinion.”
In his dissent, Justice Thomas wrote that the majority had interpreted the meaning of “during a national emergency” too broadly.
“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,” Thomas wrote.
With the exception of a one-year period from 1978 to 1979, the United States “has had at least one national emergency in effect at all times since 1933,” the justice wrote.
When Congress passed the differential-pay provisions, “it would have expected that some national emergency or other would generally be in effect. It strains credulity to think that Congress could have meant ‘contingency operation’ to mean, as a practical matter, essentially every military operation,” Thomas added.
