Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—U.S.: Reservist on active duty during national emergency does not have to prove ‘substantive connection’ for differential pay, (Apr 30, 2025)

By Kathleen Kapusta, J.D.

Congress some years ago adopted a “differential pay” statute that requires the government to make up the difference between a federal civilian employee’s military and civilian pay in various circumstances, including when he is called to active duty “during a national emergency.”

Persuaded that the statutory language at issue here means what its terms most naturally suggest, a divided U.S. Supreme Court, in an opinion authored by Justice Gorsuch, held that a federal civilian employee called to active duty pursuant to “any other provision of law... during a national emergency” is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency. In so holding, the Court reversed the decision of the Federal Circuit, which held that when a reservist seeks differential pay for service “during a national emergency,” he 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. Justice Thomas filed a dissenting opinion in which Justices Alito, Kagan, and Jackson joined (Feliciano v. Department of Transportation, No. 23-861 (U.S. Apr. 30, 2025)).

Active service. When the air traffic controller at the center of this case began working for the FAA in 2005, he also served as reserve petty officer in the U.S. Coast Guard. In July 2012, the Coast Guard ordered him to active service where he remained for the most part until February 2017. During much of that period, the statutory authority for his active-duty service came from 10 U. S. C. §12301(d), which authorized the activation of reservists with their consent.

According to his order, the employee was called to active duty to serve in support of several contingency operations, including Operation Iraqi Freedom and Operation Enduring Freedom. Throughout his active-duty service, he served onboard a Coast Guard ship escorting other vessels to and from harbor. During this time, the government did not afford him differential pay.

Lower court proceedings. The employee sought relief from the Merit Systems Protection Board, arguing that the FAA had created a hostile work environment and unlawfully denied him differential pay during the time he spent serving on active duty under Section 12301(d). When the MSPB rejected his claims, he appealed to the Federal Circuit. He contended that he was entitled to differential pay pursuant to 5 U. S. C. §5538(a) and 10 U. S. C. §101(a)(13)(B).

As relevant here, Section 5538(a) requires the government to provide differential pay to a federal civilian employee reservist when the military orders him to active-duty service “under... a provision of law referred to in section 101(a)(13)(B) of title 10” of the U. S. Code. Section 101(a)(13)(B) forms part of the definition of the phrase “contingency operation.” Pursuant to that statute, a contingency operation includes a “military operation that... results in the call or order to... active duty of members of the uniformed services under” a number of enumerated statutes “or any other provision of law during a war or during a national emergency declared by the President or Congress.”

The employee argued that the phrase “any other provision of law during a war or during a national emergency declared by the President or Congress,” entitled him to differential pay because the Coast Guard called him to active duty under another “provision of law,” Section 12301(d), and his orders came “during a national emergency.” Disagreeing, the Federal Circuit held that when a reservist seeks differential pay for service “during a national emergency,” he must show not only that he served on active duty while a national emergency was ongoing but also a substantive connection between his service and a particular national emergency. According to the Federal Circuit, the employee failed to show a substantive connection between his service and a particular national emergency.

During a national emergency. Observing that the dispute before it turned on the meaning of the phrase “during a national emergency,” the Court pointed out that the word “during” normally denotes a “temporal link” and means “contemporaneous with.” It does not, said the Court, generally imply a substantive connection. Though statutory terms can sometimes carry meanings that depart from their ordinary ones, the Court found no evidence of anything like that here.

Further, observed the Court, “when insisting on both a temporal and a substantive connection in other settings, Congress has commonly made its point expressly.” Explaining that Congress can and does use different words in different provisions to insist on a substantive connection, the Court found the “absence of any words hinting at a substantive connection in the statute before us supplies a telling clue that it operates differently and imposes a temporal condition alone.”

Time of national emergency. Pointing next to the differential-pay statute, 5 U. S. C. §5538, the Court noted that it not only works in concert with Section 101(a)(13)(B) to ensure differential pay for certain reservists ordered to active duty “during a national emergency,” it also guarantees differential pay for other reservists called up under specific statutes listed in Section101(a)(13)(B). Specifically, the Court pointed out that 10 U. S. C. §12302 authorizes the activation of various reservists “[i]n time of national emergency.”

Though the government argued that this language speaks only temporally, the Court questioned how, if that was true, “and the phrase ‘[i]n time of a national emergency’ in §12302 requires no substantive connection, how might ‘during a national emergency’ in §101(a)(13)(B) do so? If a plausible explanation exists for interpreting the one phrase, but not the other, to require a substantive connection, the government does not supply it.”

And while the government argued that to prove a substantive connection, a reservist must show that he served in support of a contingency operation while on active duty, the Federal Circuit held that a reservist must show that he served directly in a contingency operation to merit differential pay. “How might we choose between these two rules,” the Court asked, noting that the “statute does not say. And the fact that Congress supplied no principled way to determine what kind of substantive connection is necessary strikes us as yet another sign that the law does not require any such connection.”

Surplusage. Also rejected was the government’s attempt to invoke the surplusage cannon to argue that if the phrase “during a national emergency” required only a temporal overlap, it would do practically no work because there are dozens of declared emergencies today and it is “unlikely that there will ever be a time when no national emergency exists.” The only way to give the phrase meaning, the government contended, is to interpret it to require a substantive connection.

Though the Court acknowledge that the government had “something of a point,” it noted that the surplusage canon is primarily a tool of linguistic interpretation and linguistically, its reading of the statute left no part of it ignored or with work to do. “When a reservist is called to active duty under one of the statutes enumerated in §101(a)(13)(B), §5538(a) guarantees him differential pay. And when a reservist is called to active duty under ‘any other provision of law,’ he is entitled to differential pay only if a national emergency (or war) is ongoing.”

Rejecting finally the government’s contention that its reading of the statute would invite anomalous policy consequences, the Court explained that “In the end, we are persuaded that the statutory language means what its terms most naturally suggest: A federal civilian employee called to active duty pursuant to ‘any other provision of law... during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” Accordingly, the court reversed and remanded the Federal Circuit’s decision.

Dissent. Dissenting, Justice Thomas, with whom Justices Alito, Kagan, and Jackson joined, argued that, given the context here, a reservist is called to serve “during a national emergency” only if his call comes in the course of an operation responding to a national emergency. “The majority,” Thomas asserted, “does not persuasively grapple with the foregoing evidence of §101(a)(13)(B)’s meaning. At most, its reasoning suggests that Congress could have spoken more clearly. But, that conclusion cannot justify the Court’s decision today.”

The case is No. 23-861.

Judge: Gorsuch, N.

Attorneys: Andrew Timothy Tutt (Arnold & Porter Kaye Scholer) for Nick Feliciano. D. John Sauer, Office of the Solicitor General, for Department of Transportation.

Companies: Department of Transportation

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