WASHINGTON, D.C. (Government Executive) — A recent ruling by the Supreme Court could mean a new rash of pay claims for federal employees who may also serve as military reservists.
The court ruled on April 30 in its Feliciano v. Department of Transportation decision that military reservists called up to active duty during a national emergency are entitled to the difference between their military and civilian salaries regardless of whether that service was substantially connected to the emergency in question.
That means federal employees that also serve as military reservists may have new claims on differential pay based on their past active duty service, and the Merit Systems Protection Board, which handles the claims, may soon have more work.
“Differential pay is codified and provided for for federal employees that are impacted and called to active duty,” said Michael Macomber, partner and CEO at Tully Rinckey PLLC, a national law firm with an extensive government services practice. “What ultimately the Supreme Court found here, it is making it easier for reservists who are impacted who want to file claims to prove that they were, in fact, impacted.”
The decision stems from a lawsuit filed by Federal Aviation Administration air traffic controller Nick Feliciano, who also served as a Coast Guard reserve petty officer. Feliciano was called up in July 2012 and remained on active duty until February 2017, “serving aboard a Coast Guard ship escorting vessels to and from harbor” that had supported Operations Iraqi Freedom and Enduring Freedom, noting that his orders in support of several contingency operations.
The MSPB rejected Feliciano’s claims for differential pay during his service and he appealed to the Federal Circuit, which also ruled against him, citing “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.”
But the Supreme Court ruled 5-4 that Feliciano did not need to establish that his service was substantially connected to a national emergency because it was supporting contingency operations.
Macomber said since the decision, Tully Rinckey has received “dozens if not hundreds of inquiries from federal employees about their eligibility for such claims, given that the law firm has worked with feds in the past to obtain the documentation needed to assert such claims.
Those claims will be first filed with the MSPB, which is currently without a quorum after President Trump fired board member Cathy Harris in February, the Supreme Court temporarily upheld the firing in May, pending a full ruling the U.S. Court of Appeals for the D.C. Circuit.
A spokesperson for the MSPB said corrective action on differential pay claims would only be delayed “if the initial decision is appealed by either party” and that regional and field offices remain fully functional to handle such claims. The spokesperson added that MSPB has not yet seen a noticeable uptick in the claims following the Feliciano decision.
