Supreme Court Will Consider Denial of Differential Pay for Reservist

In its next term, the U.S. Supreme Court will review a Coast Guard reservist’s challenge of a denial of differential pay. His attorneys have argued that the case will affect not only federal employers but also private-sector employers that offer differential pay for certain roles.

Differential pay—also commonly called “top-up pay”—is the difference between a service member’s civilian pay, which is usually higher, and their military pay, which is usually lower, said Mark Girouard, an attorney with Nilan Johnson Lewis in Minneapolis.

“Federal employers are required to provide differential pay for certain kinds of service obligations,” he said. “Private-sector employers are not required to provide differential pay, but many do voluntarily.” He added that the purpose of the differential pay requirement for federal employees is to remove economic disadvantages to service, thereby helping support the recruitment and retention of reservists.

In the brief that helped persuade the Supreme Court to review the case, the petitioner noted that more than 1 million people serve in the Armed Services’ Reserve, including each branch’s Reserve components and each state’s National Guard.

Top-up pay may provide some reservists only a few hundred dollars above their military pay per month, but that might be the difference in paying for rent or a week’s worth of groceries, the brief stated. It added, “For other reservists, the differential might be substantial.”

Petitioner’s Case

The petitioner was called to active duty from his air traffic controller position with the Federal Aviation Administration several times from 2012 to 2014 to perform military service in the Coast Guard, according to the U.S. Department of Transportation (DOT) in its brief opposing Supreme Court review of the case.

The DOT granted differential pay for the period of time the petitioner served under 10 U.S.C. Section 12302, but it denied top-up pay for 14 months of consensual active-duty military service under 10 U.S.C. Section 12301(d), according to the petitioner’s brief.

The petitioner challenged the failure to provide differential pay for his Section 12301(d) service as a violation of the Uniformed Services Employment and Reemployment Rights Act. Unlike Section 12302, Section 12301(d) is not expressly enumerated in statutory provision 10 U.S.C. Section 101(a)(13)(B), which is cross-referenced by the differential pay statute.

The U.S. Merit Systems Protection Board ruled that a 2021 U.S. Court of Appeals for the Federal Circuit decision—Adams v. Department of Homeland Security—required a reservist seeking differential pay under the statute’s catchall provision to present “evidence that he was directly involved in a contingency operation” to qualify for that pay.

The Federal Circuit affirmed that ruling. Applying Adams, the court ruled that the petitioner was ineligible for differential pay when his service did not qualify as an active-duty contingency operation.

Section 101(a)(13)(B) cross-references 13 provisions and includes the catchall provision, which makes a federal civilian employee entitled to differential pay under “any other provision of law during a war or during a national emergency declared by the President or Congress.”

Question in the Case

According to the petitioner’s brief, the question in this case is whether the catchall provision’s use of the word “during” requires only a temporal overlap with a war or national emergency, or if it requires some kind of unspecified connection to a war or national emergency.

“The answer is plain from the ordinary meaning of the text: only a temporal overlap is required,” the brief asserted, stating that the statute does not say the employee must have been called or ordered to active duty in relation to a war or national emergency.

However, in its brief, the DOT said that “during” can also mean “in the course of.” When used that way, “the term ‘during’ connotes more than a mere temporal overlap.” If Congress had intended differential pay to be available, as the petitioner argues it did, it could have simply made differential pay available for “all active-duty service,” the DOT added. “Congress’s rejection of that ready alternative is strong evidence that Congress did not in fact want what [the] petitioner claims.”

But Sens. Dick Durbin, D-Ill., Sherrod Brown, D-Ohio, and Chris Van Hollen, D-Md., along with Rep. Mike Levin, D-Calif., and Del. Eleanor Holmes Norton, D-D.C., wrote in a brief in support of the petitioner that the Federal Circuit’s ruling against him “is not only contrary to the clear statutory language, but also contrary to Congress’s express intent.”

Possible Effect on Private Sector

The petitioner argued in his brief that a ruling for the DOT would harm virtually every member of the Reserve.

Under the government’s proposed scheme, private employers would open themselves to criminal liability whenever they provide differential pay to a reservist activated under provisions of law not expressly enumerated by law, the brief added.

This case is Feliciano v. Department of Transportation.