SCOTUS Sides with Military Reservist in Differential Pay Dispute

In Feliciano v. Department of Transportation, 605 U.S. ____ (2025), a divided 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 10 U.S.C. § 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.

Facts of the Case

When called to active duty, military 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.” The dispute before the Court involved whether federal law 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.

Petitioner Nick Feliciano, an air traffic controller with the Federal Aviation Administration (FAA), also served as a Coast Guard reserve petty officer. In July 2012, the Coast Guard ordered him to active duty under 10 U.S.C. §12301(d), 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 operation[s],” including Operations Iraqi Freedom and Enduring Freedom. 

During his active duty period, Feliciano did not receive differential pay for his service. After the Merit Systems Protection Board rejected his differential-pay claim, he appealed to the U.S. Court of Appeals for the Federal Circuit. Feliciano argued that two statutes entitled him to differential pay: 5 U.S.C. §5538(a) and 10 U.S.C. §101(a)(13)(B). Section 5538(a) requires differential pay for federal civilian employee reservists ordered to active duty “under . . . a provision of law referred to in” §101(a)(13)(B). Meanwhile, Section 101(a)(13)(B) defines “contingency operation” to include operations that result in the call to active duty of service-members 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 Feliciano acknowledged that he was not called up under any of the specifically listed statutes, he maintained that the final phrase entitled him to differential pay because he was ordered to active duty under “any other provision of law” (§12301(d)) “during a national emergency.”

The Federal Circuit disagreed. Relying on its previous decision in Adams v. Department of Homeland Security, 3 F. 4th 1375 (2021), the appeals court held that when reservists seek differential pay for service “during a national emergency,” they must show not only that he served while a national emergency was ongoing, but also that a substantive connection linked his service to a particular national emergency.

Supreme Court’s Decision

The Supreme Court reversed by a vote of 5-4. It held that Feliciano was not required to show that his service was connected to a specific emergency in order to obtain differential pay.

“[W]e think Mr. Feliciano’s reading more consistent with the statutory language before us. Just ask yourself how an ordinary American might approach the law’s terms,” Justice Neil Gorsuch wrote on behalf of the majority. “Would he have any reason to think that a reservist called up to active duty ‘during’ a national emergency is entitled to differential pay if, and only if, he can prove his service has a ‘substantive connection’ to a particular emergency? We doubt it.”

In reaching its decision, the majority focused on the word “during” in the phrase “during a national emergency.”As Justice Gorsuch explained, the word typically “means ‘contemporaneous with,’” and “does not generally imply a substantive connection.”Moreover, absent evidence that Congress intended a specialized meaning, those governed by law are entitled to rely on its ordinary meaning.

The majority went on to find that contextual clues further supported its conclusion. It noted that when Congress intends to require both temporal and substantive connections, it has done so expressly, using phrases like “during and in relation to” or “during and because of” in various statutes. Accordingly, it determined that the absence of any words hinting at a substantive connection in the statute at issue “supplies a telling clue” that it operates differently and imposes a temporal condition alone. The majority also emphasized that requiring a substantive connection would create interpretive difficulties, as the statute provides no principled way to determine what kind of substantive connection would suffice.

Finally, the majority concluded that the government’s counterarguments were unpersuasive. While it acknowledged that the word “during” can sometimes imply more than a temporal connection depending on context, it found that a purely temporal relationship is meaningful in this statutory context. “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,” Gorsuch wrote.