Temporal Sufficiency for Differential Pay: The New “During a National Emergency” Rule in Feliciano v. Department of Transportation

I. Introduction

On 30 April 2025, the U.S. Supreme Court delivered an opinion that fundamentally reshapes how federal civilian-employee reservists qualify for “differential pay” when called to active-duty service. In Feliciano v. Department of Transportation, No. 23-861, the Court rejected the Federal Circuit’s long-standing requirement that a reservist prove his service is substantively connected to a declared national emergency. The Court instead held that temporal concurrence with any presidential or congressional national-emergency declaration is enough.

The dispute emerged when Nick Feliciano, a Federal Aviation Administration (FAA) air-traffic controller and Coast Guard reservist, was denied differential pay for lengthy active-duty tours issued under 10 U.S.C. §12301(d). His orders stated they were “in support of” several contingency operations, yet the Merit Systems Protection Board (MSPB) and the Federal Circuit (relying on Adams v. DHS) insisted on a tighter, mission-specific nexus. The Supreme Court reversed, laying down a broad, text-driven precedent with significant ripple effects across military, federal-personnel, and statutory-interpretation landscapes.

II. Summary of the Judgment

Holding: A federal civilian employee called to active duty under “any other provision of law … during a national emergency” (as that phrase appears in 10 U.S.C. §101(a)(13)(B)) is entitled to differential pay under 5 U.S.C. §5538 without needing to prove a substantive relationship between his service and the specific national emergency.
Vote: 5-4. Justice Gorsuch authored the majority opinion joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas filed a dissent joined by Justices Alito, Kagan, and Jackson.
Disposition: Federal Circuit judgment reversed; case remanded for further proceedings consistent with the Court’s opinion.

III. Analysis

A. Precedents Cited and Their Influence

United States v. Ressam, 553 U.S. 272 (2008) – The Court leaned heavily on Ressam’s textual holding that “during” usually denotes mere temporal simultaneity unless context dictates otherwise. Ressam provided linguistic authority that “during” does not import a relational element such as “in relation to.”
Adams v. Department of Homeland Security, 3 F.4th 1375 (Fed. Cir. 2021) – The Federal Circuit precedent overruled sub silentio; Adams had imposed a “direct contingency-operation” test, now rejected.
Ysleta del Sur Pueblo v. Texas, 596 U.S. 685 (2022) – Cited for the canon that Congress expresses a substantive link by using phrases such as “during and in relation to.” Its absence here signalled a different intent.
Other interpretive cases: Henson v. Santander, Niz-Chavez v. Garland, Sekhar v. United States. These reinforced the Court’s textualist methodology—ordinary meaning unless Congress clearly says otherwise.
For surplusage and consistent-usage canons the majority referenced 50 U.S.C. §1435 and 10 U.S.C. §12302 (“in time of national emergency”) to illustrate that Congress often imposes purely temporal conditions.

B. Court’s Legal Reasoning

1. Ordinary Meaning: The majority began with dictionary definitions contemporaneous to both the 1991 (§101) and 2009 (§5538) enactments, concluding “during” ordinarily signals only a temporal overlap.

2. Contextual Cues: If Congress seeks both temporal and causal ties, it uses compounded phrases (“during and in relation to,” “during and because of”). Absent those, the Court inferred temporal sufficiency.

3. Structural Harmony: 10 U.S.C §12302’s grant of call-up authority “[i]n time of national emergency” undeniably lacks a substantive-connection requirement; applying asymmetrical standards to §101(a)(13)(B) would be textually incoherent.

4. Practical Workability & Vagueness: Requiring an undefined “substantive connection” would leave agencies, courts, and private employers without guidance, risking inconsistency and potential criminal exposure under 18 U.S.C. §209.

5. Secondary Evidence: The Court noted Congressional Budget Office cost estimates that pegged anticipated expenditures to the total number of reservists on active duty, signaling contemporaneous legislative understanding that all such reservists would qualify.

C. Dissent’s Counter-Analysis (Justice Thomas)

Emphasized statutory context—“contingency operation” ordinarily suggests a responsive, exigent military operation. An ever-present national-emergency backdrop would render “contingency” meaningless if temporal overlap alone sufficed.
Invoked surplusage: constant emergencies would make most of §101(a)(13)(B)’s enumerations redundant if the catchall already covers every activation.
Highlighted potential “ripple effects” on other statutes that hinge on the §101 definition (e.g., real-estate contracting waivers, civilian court-martial reach).
Accused the majority of ignoring Congress’s post-1991 amendments that added specific authorities—amendments that would be superfluous if the catchall already covered them.

D. Likely Impact of the Decision

Financial Exposure for Agencies – OPM and agency budget offices must anticipate expanded differential-pay obligations, particularly for reserve members activated under §12301(d). Retroactive claims may surge.
Private-Sector Employers – Clarity reduces §209 exposure; employers can confidently pay differential supplements without dissecting mission-specific ties.
Statutory-Interpretation Landscape – Reaffirms a strict textualist preference for ordinary meaning over policy-based arguments; lower courts will cite Feliciano when encountering “during” clauses.
Military Personnel Management – The Armed Forces may revisit how activation orders are drafted; the “contingency” label becomes less decisive for pay entitlement, though still relevant for other statutory triggers.
Future Litigation – Expect challenges in areas where “during a national emergency” appears: procurement flexibilities, property transactions, and Uniform Code of Military Justice jurisdiction. Courts will need to decide whether Feliciano’s reasoning extends verbatim or whether surrounding text distinguishes those provisions.

IV. Complex Concepts Simplified

Differential Pay: Extra payment that bridges the gap between a reservist’s civilian salary and lower military pay when activated, ensuring no pay cut for patriotic service.
Contingency Operation (10 U.S.C. §101(a)(13)): A statutorily defined subset of military operations that, if met, triggers various benefits and authorities, including differential pay.
§12301(d) Activation: Voluntary call-up authority—the member consents to active duty, unlike involuntary mobilization statutes such as §12302.
National Emergency Declaration: A formal proclamation by the President (or by Congress) under the National Emergencies Act. Dozens are concurrently in effect, some for decades (e.g., Iran sanctions since 1979).
Canons of Construction Referenced:
- Ordinary-meaning canon – words get their everyday meaning.
- Surplusage canon – avoid readings that make words superfluous.
- Expression unius & meaningful-variation canon – different wording implies different meaning.

V. Conclusion

Feliciano establishes a clear, bright-line rule: temporal coincidence with any national-emergency declaration suffices to unlock differential pay for federal civilian-employee reservists activated under “any other” statutory provision. By privileging textual clarity over policy speculation and by refusing to graft an undefined “substantive nexus” requirement onto the statute, the Court simplified eligibility determinations and curtailed agency discretion that had denied benefits to thousands of reservists.

Whether this textual reading will cascade into broader interpretations of “contingency operation” across Title 10 and related statutes remains to be seen. For now, the decision underscores a judiciary increasingly committed to ordinary meaning and signals to Congress that, if tighter limitations are desired, more explicit language will be necessary.