Lawsuit seeks to enforce 2025 SCOTUS decision improving pay for feds called to active duty

A Veterans Affairs Department employee filed a lawsuit against the Office of Personnel Management Wednesday seeking to force it to promulgate new regulations implementing a Supreme Court case opening up differential pay to more federal workers who simultaneously serve as military reservists that was decided more than a year ago.

In 2009, Congress enacted legislation aimed at ensuring federal workers are not forced to take a pay cut when they deploy to active duty as part of their service in a military reserve unit, as their military pay is often lower than their civilian salary.

Though the law tasked the Office of Personnel Management to issue regulations governing this differential pay, the HR agency instead issued policy guidance to agencies in 2009. That guidance, last updated in 2015, requires federal workers to prove that their active-duty deployment is “substantially connected” to a particular war or national emergency in order to be eligible for differential pay.

But in April 2025, the Supreme Court overruled that test in Feliciano v. Department of Transportation, finding that the law requires only a “temporal link” between an employee’s deployment and a national emergency. That case, decided by a 5-4 vote, involved a federal air traffic controller who spent nearly five years on active duty as a Coast Guard reserve petty officer escorting military vessels to and from harbor in support of the wars in Iraq and Afghanistan.

In a new lawsuit, VA attorney Marcus Colicelli, who also serves as a major in the Army Reserve’s Judge Advocate General’s Corps, argues that OPM’s continued failure to issue binding regulations on differential pay or to update its policy guidance to reflect the new Supreme Court precedent constitute a violation of the Administrative Procedure Act. During litigation of Feliciano, OPM twice stated that it planned to revise its guidance document; to date, it has not occurred.

“The Merit Systems Protection Board has meanwhile held, in a precedential decision involving the same employing agency as plaintiff’s, that a federal civilian employee ordered to active duty . . . is entitled to differential pay . . . where that service temporally coincided with a declared national emergency,” the suit states. “OPM’s guidance continues to instruct employing agencies to the contrary.”

According to Colicelli and his attorneys, the status quo effectively requires federal workers to pursue differential pay through their agency and be denied, then seek redress before MSPB in order to be made whole.

“Had OPM discharged the duty [the statute] imposes, its instructions would carry the force of law and would bind employing agencies government-wide,” they wrote. “Instead OPM substituted a non-binding subregulatory document for the binding rule Congress required. The result is that no employing agency is authoritatively directed to administer [the statute] as Feliciano construes it, and each reservist is left to vindicate his own entitlement agency-by-agency and activation-by-activation. The absence of a binding rule is not incidental to plaintiff’s injury; it is the injury.”

In a statement Thursday, Trial Lawyers for Justice, the firm representing Colicelli, said it is soliciting other plaintiffs in preparation for filing a class-action case with the Merit Systems Protection Board in the coming weeks.

“The Supreme Court could not have been clearer: these men and women earned this pay, and the law requires the government to make them whole,” said attorney Andrew Tutt, who also represented Feliciano in his case. “They held up their end of the bargain. It is long past time for the government to hold up its own.”