The U.S. Supreme Court on Dec. 9 looked at how much the federal government has to pay its civilian employees when they are called up for military reservist duty.

The issue before the justices during the oral argument was whether the federal government has to pay its employees full salaries when they perform reservist work even if their duties are not related to a national emergency.

Andrew Tutt, the lawyer for air traffic controller Nick Feliciano, told the justices that the Federal Aviation Administration (FAA), which is part of the U.S. Department of Transportation, should have provided his client full pay after his two years of involuntary work as a reservist for the U.S. Coast Guard was completed in 2014.

Feliciano was required to perform work as a reservist, escorting military vessels in the Charleston, South Carolina harbor during national emergencies related to the wars in Afghanistan and Iraq, according to his petition filed on Feb. 8.

Reservists’ pay is often lower than the pay they receive for their federal civilian jobs.

To make sure reservists do not suffer a financial disadvantage for their active-duty service, a so-called differential pay statute states that the government must pay them their salary for the federal civilian job during reserve service.

For the two years after he was called up in 2012, Feliciano’s pay was topped up under the differential pay law. In 2014, Feliciano voluntarily extended his work as a reservist until 2017 but for those three years received only reservist-level pay.

Tutt argued his client should have received the higher pay for the three years because the Reservists Pay Security Act requires it when a reservist has to go on duty “during a national emergency declared by the President or Congress.”

Feliciano should receive the higher pay because he served during the national emergency that was declared at the time of the Sept. 11, 2001, terrorist attacks, Tutt said.

Tutt told the justices that the case “turns on the meaning of the word ‘during.’”

Section 101(a)(13)(B) of the differential pay law references wars and national emergencies and this means that “during a national emergency, reservists called to active duty under any provision of law must receive differential pay,” the attorney said.

The federal government argued that “during” in the statute refers to a reservist who is serving at the time of an emergency and whose work was connected to it.

Two courts erred in denying his client the differential pay, Tutt said.

The United States Merit Systems Protection Board ruled in July 2022 that Feliciano was not entitled to differential pay for the three-year period because that service did not take place “during” a national emergency. The U.S. Court of Appeals for the Federal Circuit affirmed in May 2023.

Justice Sonia Sotomayor told Tutt he was interpreting the law too loosely.

Why didn’t “Congress just say differential pay for anybody called up?”

“Instead, Congress crafted a very careful limitation,” Sotomayor said.

Justice Kagan said “there are 43 national emergencies now.”

“Every time we have a sanctions program in place, we declare a national emergency. This is just a sort of feature of modern life.”

Chief Justice John Roberts told U.S. Department of Justice attorney Nichole Reaves that the government’s approach is going to create “difficult line-drawing problems.”

Reaves said military orders calling up reservists generally specify whether the work is related to a national emergency.

Justice Neil Gorsuch told Reaves that private employers who “don’t have access to [military call-up] orders all the time” could be exposing themselves to criminal liability if they fail to provide differential pay when the law requires it.

“The orders don’t contain the information that are necessary to determine whether … they should be providing differential pay or whether they’re forbidden from doing so,” Gorsuch said.

“How is a private employer to figure out whether this fellow with these orders … is engaged in conduct during a national emergency?”

Reaves said it is “rare” for a call-up order not to provide the language an employer needs.

Gorsuch pushed back.

“It’s just that a well-meaning private employer could find themself to be a federal felon for actually trying to pay money to somebody,” the justice said.

The Supreme Court is expected to hand down its decision in Feliciano v. Department of Transportation by June 2025.

This article by Matthew Vadum appeared Dec. 10, 2024, in The Epoch Times.

Photo: Official Portrait of Justice Sonia Sotomayor