5 military reservists file class-action lawsuit seeking differential pay

Five U.S. military reservists filed a class-action lawsuit Wednesday in an attempt to regain years of alleged unpaid compensation during periods when they left their federal civilian jobs to serve on active duty.

The class action, filed before the Merit Systems Protection Board, pursues compensation for five current and former federal civilian employees who also serve in the military. The suit is against the Departments of Defense, Justice and Veterans Affairs, according to the motion shared with Military Times.

The suit says the reservists served on qualifying active duty during a declared national emergency and were not paid the difference between their civilian salary and military pay.

Those listed in the class action are: Army Reserve Capt. Lacy Jaudon, Army Reserve Lt. Col. Shahara Timbrook, Army reservist Shea Matthew Gibbons, Navy reservist Bryce Miller, and Army Reserve Capt. John Mezzanotte.

Some of the reservists served on active duty dating back to 2016, while two are still under orders through Sept. 30.

Reservist differential pay was enacted by Congress in 2009 to protect eligible federal civilian employees who are members of the Reserve of National Guard from taking a pay cut when called to active duty during a declared national emergency.

Following that passage, the Office of Personnel Management restricted the types of active-duty service that are eligible for differential pay.

The class action comes over a year after the Supreme Court ruled in Feliciano v. Department of Transportation that federal employees called to active-duty service are entitled to such pay, dismissing OPM’s guidance that it has to be related to a 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,” Andrew Tutt, who argued Feliciano v. DoT and is now the reservists’ counsel, said in the statement. “They held up their end of the bargain. It is long past time for the government to hold up its own.”

The suit asserts that the government told the Supreme Court it would change its guidance twice but has not yet done so. The delay prompted multiple lawsuits, including one filed in August by an Army reservist and Department of Veterans Affairs attorney Marcus Colicelli against OPM.

The new suit also aims to recover compensation from an existing class action, Platero v. United States, which is being argued before the U.S. Court of Federal Claims. That lawsuit argues that USERRA claims brought before the Merit Systems Protection Board can have no statute of limitations.