Feliciano v. Dept. of Transportation
Docket Number: 23-861
Date Argued: 12/09/24
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-861_0n13.pdf
QUESTION PRESENTED:
This case presents a question of critical importance to hundreds of thousands of
Americans who serve their country both as federal civilian employees and members of
the Armed Services' reserve components.
Congress enacted the differential pay statute, 5 U.S.C. § 5538, to eliminate the
financial burden that reservists face when called to active duty at pay rates below their
federal civilian salaries. To ensure that these reservists suffer no financial penalty for
active-duty service, the differential pay statute requires that the government make up
the difference. Federal civilian employees are entitled to differential pay when
performing active duty "pursuant to a call or order to active duty under * * * a provision of
law referred to in section 101(a)(13)(B) of title 10." That section, Section 101(a)(13)(B),
enumerates several statutory authorities and includes a catchall provision: "any other
provision of law during a war or during a national emergency declared by the President
or Congress."
Recently, in a decision that departed from settled understandings of this
language, the Federal Circuit held that reservists relying on Section 101(a)(13)(B)'s
catchall provision to claim differential pay must show that they were "directly called to
serve in a contingency operation." Adams v. DHS, 3 F.4th 1375, 1379 (Fed. Cir. 2021).
Under that demanding, fact-intensive standard, the Federal Circuit has rejected claims
for differential pay even by reservists like petitioner whose activation orders expressly
invoked a presidential emergency declaration.
The question presented is:
Whether a federal civilian employee called or ordered to active duty under a
provision of law during a national emergency is entitled to differential pay even if the
duty is not directly connected to the national emergency.