Reservists Sue for Unpaid Differential Pay Dating Back to 2009

A new lawsuit is filed seeking to recover years of unpaid differential pay for federal workers who served as military reservists.

Five current and former civilian federal employees allege they were not paid the difference between their federal civilian salaries and military pay when they left their federal jobs to serve on active duty.

The suit was filed before the Merit Systems Protection Board (MSPB). It asks the federal government to pay the differential pay it owes dating all the way back to 2009. That’s when Congress created the benefit to protect civilian employees from taking a pay cut while on military leave during a declared national emergency.

The case comes more than a year after the Supreme Court ruled in Feliciano v. Department of Transportation that federal employees called to active-duty service during a declared national emergency are entitled to differential pay, regardless of whether their service was directly connected to that emergency. The court dismissed the Office of Personnel Management’s (OPM) previous guidance that the service had to be directly connected to the national emergency.

“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 argued the Feliciano case and is now counsel to the five reservists. “They held up their end of the bargain. It is long past time for the government to hold up its own.”

The lawsuit seeks compensation for current and former federal civilian employees at the Departments of Defense, Justice, and Veterans Affairs. The five named plaintiffs served on active duty as far back as 2016, according to the filing.

The class action comes after another lawsuit was filed to force OPM to update its policy guidance to reflect the Supreme Court ruling. The lawsuit argues that OPM has unreasonably delayed issuing regulations as required by law.