Seyfarth Synopsis: On June 24, 2024, the U.S. Supreme Court granted certiorari in the case of Feliciano v. Department Of Transportation. The Supreme Court will review the Federal Circuit’s decision affirming the Merit Systems Protection Board’s (“MSPB”) denial of differential pay to Nick Feliciano, an air traffic controller for the Federal Aviation Administration and a U.S. Coast Guard reservist.  In this legal update, the Uniformed Services Employment and Reemployment Rights Act USERRA expert and San Francisco-based partner Jesse Miller discusses the potential impact of this case for federal employers  Jesse continues to serve in the military as an Army Colonel and Joint Chief of Staff for the California National Guard.

Petitioner Feliciano was called to active service during Operation Iraqi Freedom and Operation Enduring Freedom.  Feliciano claimed he was improperly denied differential pay by the FAA while he served on active duty.  Feliciano was ordered to duty aboard a Coast Guard vessel responsible for escorting U.S. military craft to and from American harbors. Shortly thereafter, Feliciano applied for and was denied a differential pay grant by the FAA. The FAA reasoned that since Feliciano’s service was unconnected to the ongoing national emergency and “contingency operations” relating to the Iraq War, he was not eligible for differential pay.  

Feliciano argued that the Reservist Pay Security Act requires federal employers to grant reservists differential pay whenever they are activated in support of a contingency operation during a national emergency or wartime.  The MSPB relied on Adams v. Department of Homeland Security, which held that reservists are only entitled to differential pay when “directly called to serve in a contingency operation” like foreign military operations or natural disaster relief efforts, and denied his claim.  The Federal Circuit agreed with the MSPB’s reasoning, and seemed to criticize Feliciano’s failure to present evidence to the MSPB as well his decision not to file for a petition for review by the MSPB. 

The Supreme Court will decide whether a federal civilian employee called or ordered to active duty during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency. If the Supreme Court agrees with the Petitioner’s argument, federal employers will need to provide differential pay to reservists who are activated or volunteer for active duty during any national emergency.