Supreme Court of the United States · Official docket →
Nick Feliciano v. Department of Transportation
Paid petition · United States Court of Appeals for the Federal Circuit, No. 2022-1219 · judgment May 15, 2023
Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.
Question presented
This case presents a question of critical importance to hundreds of thousands of Americans who serve their country both as federal civilian employees and members of the Armed Services' reserve components. Congress enacted the differential pay statute, 5 U.S.C. § 5538, to eliminate the financial burden that reservists face when called to active duty at pay rates below their federal civilian salaries. To ensure that these reservists suffer no financial penalty for active-duty service, the differential pay statute requires that the government make up the difference. Federal civilian employees are entitled to differential pay when performing active duty "pursuant to a call or order to active duty under * * * a provision of law referred to in section 101(a)(13)(B) of title 10." That section, Section 101(a)(13)(B), enumerates several statutory authorities and includes a catchall provision: "any other provision of law during a war or during a national emergency declared by the President or Congress." Recently, in a decision that departed from settled understandings of this language, the Federal Circuit held that reservists relying on Section 101(a)(13)(B)'s catchall provision to claim differential pay must show that they were "directly called to serve in a contingency operation." Adams v. DHS, 3 F.4th 1375, 1379 (Fed. Cir. 2021). Under that demanding, fact-intensive standard, the Federal Circuit has rejected claims for differential pay even by reservists like petitioner whose activation orders expressly invoked a presidential emergency declaration. The question presented is: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
Counsel of record
For petitioner
Andrew Timothy Tutt
Arnold & Porter Kaye Scholer
For respondent
D. John Sauer
Solicitor General
Case
Conference history
Distributed for 2 conferences
Amicus briefs
4 cert-stage · 6 merits
(6 supporting pet./neither)
Argument & decision
Argued December 9, 2024 — Andrew T. Tutt · Nicole F. Reaves. Audio and transcript
Decided April 30, 2025. Opinion by Gorsuch.
Proceedings
- Jun 02 2025Judgment Issued.
- Apr 30 2025Judgment REVERSED and case REMANDED. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kavanaugh, and Barrett, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, Kagan, and Jackson, JJ., joined.
- Dec 09 2024Argued. For petitioner: Andrew T. Tutt, Washington, D. C. For respondent: Nicole F. Reaves, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
- Dec 06 2024Record received electronically from the Merit Systems Protection Board and available with the Clerk.
- Oct 31 2024Record received from the United States Court of Appeals for the Federal Circuit. The record is electronic and is available on PACER.
- Oct 28 2024Reply of petitioner Nick Feliciano filed. (Distributed)
- Oct 22 2024Record requested from the United States Court of Appeals for the Federal Circuit.
- Oct 22 2024CIRCULATED
- Oct 18 2024SET FOR ARGUMENT on Monday, December 9, 2024.
- Sep 27 2024Brief of respondent Department of Transportation filed.
- Sep 06 2024Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
- Aug 26 2024Brief amicus curiae of Military-Veterans Advocacy, Inc. filed.
- Aug 26 2024Brief amicus curiae of National Law School Veterans Clinic Consortium filed.
- Aug 26 2024Brief amicus curiae of American Federation of Government Employees filed.
- Aug 26 2024Brief amici curiae of Texas, South Carolina, 19 Other States, and the District of Columbia filed.
- Aug 26 2024Brief amici curiae of Members of Congress filed.
- Aug 26 2024Brief amicus curiae of Reserve Organization of America filed.
- Aug 19 2024Brief of petitioner Nick Feliciano filed.
- Jul 25 2024Motion to dispense with printing the joint appendix filed by petitioner Nick Feliciano.
- Jul 09 2024Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 19, 2024. The time to file respondent's brief on the merits is extended to and including September 27, 2024.
- Jul 08 2024Motion for an extension of time to file the briefs on the merits filed.
- Jun 24 2024Petition GRANTED.
- Jun 17 2024DISTRIBUTED for Conference of 6/20/2024.
- May 28 2024DISTRIBUTED for Conference of 6/13/2024.
- May 24 2024Reply of petitioner Nick Feliciano filed. (Distributed)
- May 13 2024Brief of respondent Department of Transportation in opposition filed.
- May 08 2024Motion to extend the time to file a response is granted and the time is further extended to and including May 13, 2024.
- May 07 2024Motion to extend the time to file a response from May 10, 2024 to May 13, 2024, submitted to The Clerk.
- Apr 04 2024Motion to extend the time to file a response is granted and the time is further extended to and including May 10, 2024.
- Apr 03 2024Motion to extend the time to file a response from April 12, 2024 to May 10, 2024, submitted to The Clerk.
- Mar 13 2024Brief amici curiae of Members of Congress filed.
- Mar 13 2024Brief amici curiae of Texas, et al. filed.
- Feb 26 2024Brief amicus curiae of Military-Veterans Advocacy, Inc. filed.
- Feb 26 2024Brief amicus curiae of Reserve Organization of America filed. VIDED.
- Feb 23 2024Motion to extend the time to file a response is granted and the time is extended to and including April 12, 2024.
- Feb 22 2024Motion to extend the time to file a response from March 13, 2024 to April 12, 2024, submitted to The Clerk.
- Feb 08 2024Petition for a writ of certiorari filed. (Response due March 13, 2024)
- Jan 17 2024Application (23A653) granted by The Chief Justice extending the time to file until February 8, 2024.
- Jan 11 2024Application (23A653) to extend the time to file a petition for a writ of certiorari from January 25, 2024 to February 8, 2024, submitted to The Chief Justice.