Lawsuit seeks to force OPM to update reservist pay guidance after 2025 Supreme Court ruling

Marcus Colicelli, a VA attorney and Army Reserve major, has filed a lawsuit to force the Office of Personnel Management to update its differential pay regulations. The suit follows a landmark April 2025 Supreme Court ruling in Feliciano v. Department of Transportation, which held that federal employees called to active duty during national emergencies are entitled to differential pay. Despite the ruling 15 months ago, OPM has not updated its 2009 guidance, leading agencies to continue denying pay. Attorneys are also preparing a class action to seek back pay dating to 2009.

Lawsuit against OPM

• ▪Marcus Colicelli, a Department of Veterans Affairs attorney and Army Reserve major, filed a lawsuit against the Office of Personnel Management seeking to compel the agency to issue updated regulations on differential pay.
• ▪The lawsuit filed by Marcus Colicelli against the Office of Personnel Management argues that the agency's failure to issue binding regulations or update its policy guidance violates the Administrative Procedure Act.

Supreme Court Feliciano ruling

• ▪In April 2025, the Supreme Court ruled 5-4 in Feliciano v. Department of Transportation that federal employees called to active duty during a national emergency are entitled to differential pay based on a temporal link.
• ▪The Supreme Court case Feliciano v. Department of Transportation involved a federal air traffic controller who served nearly five years on active duty as a Coast Guard reserve petty officer.

Delayed policy guidance update

• ▪The Office of Personnel Management has not updated its differential pay policy guidance in the 15 months following the April 2025 Supreme Court ruling in Feliciano v. Department of Transportation.
• ▪During the litigation of Feliciano v. Department of Transportation, the Office of Personnel Management stated twice that it planned to revise its differential pay guidance document.

Reservist differential pay eligibility

• ▪Congress enacted legislation in 2009 to provide differential pay to ensure federal workers do not take a pay cut when deployed to active duty in a military reserve unit.
• ▪The Office of Personnel Management's 2009 guidance, last updated in 2015, requires federal workers to prove their active-duty deployment is substantially connected to a war or national emergency to receive differential pay.

Back pay claims since 2009

• ▪Attorneys representing Marcus Colicelli are preparing a separate class action before the Merit Systems Protection Board to seek back pay for military reservists dating back to 2009.
• ▪Attorneys state that the federal government must compensate military reservists who were owed differential pay dating back to 2009 following the Supreme Court's rejection of the government's interpretation.

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