Differential Pay for Reservists

Date: April 30, 2025

Signed by: Justice Neil Gorsuch (Opinion of the Court)

Executive Summary

In Feliciano v. Department of Transportation, the U.S. Supreme Court ruled that federal civilian employees who are also military reservists are entitled to "differential pay" when they are called to active duty during a declared national emergency. The decision clarified that there is no need to prove a specific connection between the reservist’s military duties and the emergency itself, only that their service occurred during the time a national emergency was in effect. The ruling overturned a lower court's requirement that a reservist prove a "substantive connection" between their service and the national emergency. Justice Gorsuch delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas filed a dissent joined by Justices Alito, Kagan, and Jackson.

Key Provisions

• Differential Pay Explained
• Section 5538(a) provides differential pay for federal employees called to active duty under a law mentioned in 10 U.S.C. §101(a)(13)(B).
• Differential pay is a wage supplement paid by the federal government to civilian employees who are also members of the military reserves. It covers the gap between the employee's regular federal salary and the lower pay they typically receive while on active duty in the military.
• Section 101(a)(13)(B) defines a “contingency operation” to include duty under listed statutes, or any other statute “during a national emergency” declared by the President or Congress (pg. 1-2, Syllabus).
• Factual Background
• Nick Feliciano worked as an air traffic controller for the Federal Aviation Administration (FAA). At the same time, he served in the U.S. Coast Guard Reserve as a petty officer.
• Military Activation
• In July 2012, the Coast Guard called Feliciano to active duty under 10 U.S.C. §12301(d), a statute that allows reservists to volunteer for active duty.
• He served continuously until February 2017.
• His military assignment involved working aboard a Coast Guard ship, escorting vessels to and from harbor.
• His orders stated that he was being called to duty “in support of contingency operations,” including Operation Iraqi Freedom and Operation Enduring Freedom.
• These operations were tied to ongoing national emergency declarations that had been in effect since the early 2000s.
• Feliciano did not receive differential pay from the federal government during his military activation period.
• Supreme Court Holding
• The Court examined whether a federal civilian employee who is also a reservist is entitled to differential pay when called to active duty during a time when a national emergency has been declared.
• The issue was whether the phrase “during a national emergency” implies only a timing condition or requires a substantive connection between the reservist’s duties and the emergency itself (pg. 4, Opinion of the Court).
• The Court held that the statute requires only a temporal overlap, that is, the reservist must serve while a national emergency is in effect.
• The Court ruled that "during a national emergency" refers only to the timing of the service, not its purpose.
• The Court also cited evidence that the Congressional Budget Office, when analyzing the costs of similar legislation, assumed that all reservists on active duty during a national emergency would qualify for differential pay. 
• Conclusion: Feliciano was eligible for differential pay simply because his service overlapped with a national emergency period (pg. 4, Opinion of the Court).
• Dissenting Opinion by Justice Thomas
• Justice Thomas argued that “contingency operation” implies a necessary connection to an actual emergency or military objective.
• He expressed concern that the majority’s broader interpretation could lead to unintended expansions of military and financial policy (pg. 6-12, Dissent).

Source: https://www.supremecourt.gov/opinions/24pdf/23-861_7lh8.pdf