Kuwaiti, Iraqi and U.S. vessels take part in a trilateral exercise in the Arabian Gulf, Oct. 2, 2023. The Sentinel-class U.S. Coast Guard fast response cutters USCGC Robert Goldman (WPC 1142) and USCGC Clarence Sutphin Jr. (WPC 1146) teamed with Kuwaiti and Iraq vessels on the two-day exercise. The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement. Image: NAVCENT Public Affairs
By: FEDweek StaffThe U.S. Supreme Court has agreed to rule on a dispute over eligibility for “differential pay” that makes up for the difference between the military pay of a federal employee on active military duty as a Reservist and the person’s regular federal salary.
The court accepted for a hearing in its term that begins in October Case No. 23-861, an appeal from a ruling last year by the Court of Appeals for the Federal Circuit. The appeals court, agreeing with an MSPB decision, ruled that the pay applies only to those who were “directly called to serve in a contingency operation” that involves military operations.
The employee – an air traffic controller with the FAA and Coast Guard Reservist – argued that he qualified because a national emergency has been in effect since the September 11, 2001 terrorist attacks. However, the appeals court said there must be a connection between the military service and the declared national emergency; it said that only an overlap in time between activation and the emergency is not enough to meet the law’s standard.
The appeal to the high court argued that the law was intended to be read broadly to apply to all service “pursuant to a call or order to active duty” and that prior decisions have held that Reservists activated under any provision of law while an emergency declaration was in effect were entitled to differential pay.
“The Federal Circuit’s flawed decision has been disastrous for federal civilian employee reservists, denying many the differential pay that the statute plainly mandates they receive. More than that, the decision has created profound uncertainty for reservists who upon receiving activation orders are left guessing—until long after they have incurred financial obligations while on active duty and returned to civilian life—whether that service will be deemed sufficiently related to an ongoing emergency to warrant differential pay,” it said.
In opposing the request for appeal, the Justice Department said the Federal Circuit correctly held that an employee “is not automatically entitled to differential pay merely because a national emergency is ongoing at the time.”
The high court typically accepts only one or two cases directly involving federal employment issues per term.
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