Federal Reservists Fight for Pay as Lawsuit Targets OPM Guidance
A new chapter in the legal fight over securing differential pay for federal civilian employees who are also active members of the military reserve.
A lawsuit was filed seeking to force the Office of Personnel Management (OPM) to revise its guidance to comply with the Supreme Court's 2025 decision in Feliciano v. Department of Transportation.
In that case, the court ruled that civilian employees are entitled to differential pay when called to active duty during a national emergency, regardless of whether the service is directly connected to that particular emergency. The ruling also called into question OPM's existing guidance, which required employees to establish a substantive connection between their military service and a particular national emergency.
The lawsuit argues that OPM has failed to bring its guidance into compliance with the Supreme Court's ruling.
“No Longer Able to Withhold Pay”
The lawsuit was filed by VA attorney Marcus Colicelli, who is also a major in the Army Reserve’s Judge Advocate General’s Corps.
Colicelli had previously successfully challenged the denial of differential pay before the Merit Systems Protection Board (MSPB). His attorneys say this case is about setting a path forward.
“This case is now him saying, ‘I want everyone to get their differential pay, and I don’t want them to have to do what I did and sue to get,’” said one of his attorneys, Andrew Tutt co-chair of the Supreme Court and appellate practice at Trial Lawyers for Justice. “If we’re successful in this lawsuit, agencies will no longer be able to withhold the pay that they owe by default.”
Dispute Traces Back to 2008 Law
The dispute traces back to a 2008 law that created reservist differential pay, which took effect for executive-branch employees in 2009. The law was passed to ensure that federal workers are not forced to take a pay cut when deployed to active duty, as military pay is often lower than their civilian salary.
Instead of issuing regulations, OPM issued policy guidance in 2009. It later updated that guidance in 2015 to require 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.
OPM declined to comment to Federal News Network on the lawsuit.
