Coast Guard Reserve member wins pay dispute in “national emergency”.
The Supreme Court ruled on Wednesday that an air traffic control who was called to active duty in the U.S. Coast Guard during a “national emergency” can have the government pay the difference between his civilian pay and his military salary, without having to prove that his service is connected to a particular emergency. By a 5-4 vote, the court rejected a narrower interpretation by the government of the law in question, which would have made it harder for Coast Guard reservist Nick Feliciano, who was called up to active duty, to recover differential pay. Justice Sonia Sotomayor joined four of her conservative colleagues, Chief Justice John Roberts, Justices Neil Gorsuch and Brett Kavanaugh and Amy Coney Barrett, in the majority. Clarence Thomas, joined by Justices Samuel Alito and Elena Kagan in a 17 page opinion, dissented. This case concerns the interpretation of the federal law known as “differential-pay” statute. It is intended to compensate federal employees who are reservists for the difference in their salaries between active duty and federal civilian salaries.
The law states that federal civilian employees have the right to differential pay when on active duty, “pursuant” to a “call or order to active service under” a provision which includes, among other things, “anyother provision of law during war or during a declared national emergency by the President or Congress.” He served between July 2012 and February 2017. Feliciano’s pay rate was lower during his five years on active duty than what he earned as a federal employee for the Federal Aviation Administration. Feliciano’s pay rate was lower during his five years on active duty than what he earned as a federal employee for the Federal Aviation Administration.
Feliciano went to the Merits Systems Protection Board and then to the U.S. Court of Appeals for the Federal Circuit, seeking differential pay – which he had not received for most of the time that he was on active duty. The Federal Circuit ruled reservists who want differential pay must prove that they were “directly contacted to serve in a counter-terrorism operation.”
Feliciano went to the Supreme Court which agreed to rule on whether federal civilian employees can receive differential pay if their duties do not directly relate to the national crisis.
The dispute centers on the meaning of “during,” which is used in the phrase “during national emergencies.” Gorsuch, writing for the majority, explained that “during,” in most cases, “means “contemporaneous” and “doesn’t generally imply a substantial connection.” He continued that there is no reason for believing that Congress acted in this way.
Gorsuch concluded that “given all this,” Mr. Feliciano’s reading is more consistent with the statutory text before us. Ask yourself how a typical American would interpret the law. Would he think that a reserve called up to active service ‘during a national emergency’ is entitled to differential payment if and only if he can prove a substantive connection to a specific emergency?
Gorsuch said that “a number of contextual clues,” further supported the majority decision. He noted that Congress had made it clear in other laws, that both a time and substantive connection is required. Gorsuch said that the failure to do so in this case “provides a telling hint.”
Gorsuch continued that requiring a substantive link to obtain differential pay would bring up additional questions. For example, what exactly must reservists show? Are they required by the government to show they served directly in a contingent operation, while on active duty or in support of one, as the Federal Circuit contends. “How could we choose between the two rules?” Gorsuch noted that the statute “doesn’t say.”
The majority rejected the argument that its rule would create problems, for example by requiring the government pay differential pay when Congress may not have intended it. For example, a reservist called up to active service to face a military court martial. Gorsuch said that Congress should address such scenarios, not the courts.
In his dissent, Thomas countered that reservists are called to serve “during a national emergency” only when they are called up “in the course of an operation responding to a national emergency.”
Thomas resisted Gorsuch’s contention that the word “during” normally means “contemporaneous with.” Although it sometimes serves that purpose, Thomas acknowledged, at other times it can be used “to reference only events that are substantively connected to the ongoing event–that is, events that occur ‘in the course of’ or ‘in the process of’ the ongoing event.”
Because the meaning of “during” is not, standing alone, clear, Thomas continued, courts should instead look at the broader context of the phrase “during a national emergency.” And those “contextual clues,” Thomas wrote, indicate that the phrase only applies to reservists who are called to serve in operations responding to a national emergency.
This does not, Thomas stressed, necessarily mean that Feliciano will not receive differential pay. Thomas wrote that “even the Government admits” that Feliciano’s “orders indicate
would’ve been entitled to differential payment’ under a correct reading of the law.” Thomas would therefore send the case back the Federal Circuit to have it take another look.
Cases: Feliciano v. Department of Transportation
Recommended Citation:
Amy Howe
Coast Guard reservist wins pay dispute in “national emergency”.
SCOTUSblog
(May. 1, 2025, 12:37 PM),
[he]
