On December 9, the Supreme Court will hear oral argument in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board. The Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” The Federal Circuit held that, “[b]ecause Mr. Feliciano’s service does not qualify as an active duty contingency operation, as required by 5 U.S.C. § 5538(a), the Board properly denied differential pay.” This is our argument preview.
In his opening merits brief, Feliciano makes two arguments. First, he argues that federal civilian employees called to active duty while a national emergency declaration is in effect are entitled to differential pay under the plain meaning of the statute. Second, he argues, the government’s interpretation of the differential pay statute is both wrong and harmful.
Feliciano’s first argument centers on the assertion that “the differential pay statute’s text resolves this case.” He contends the relevant statutory language is “any other provision of law during a war or during a national emergency declared by the President or Congress.” And he insists “the ordinary meaning of the word ‘during'” means that a reservist activated while a declared national emergency is ongoing is entitled to differential pay. Indeed, Feliciano maintains the plain meaning of “during” “is so readily apparent that ‘[t]here is no need to consult dictionary definitions.'” He argues if anyone is asked “what ‘during’ means . . . that person will say that it means ‘while,’ ‘at the same time as,’ or ‘for the duration of.'” Moreover, according to Feliciano, “[i]t would be unnatural to read ‘during’ as requiring any sort of substantive relationship.”
Feliciano further asserts the “statutory structure, context, history, and the pro-veteran canon confirm” the plain meaning of “during.” He argues that “the Court presumes ‘that a given term is used to mean the same thing throughout a statute, a presumption surely at its most vigorous when a term is repeated within a given sentence.” Regarding the first use of “during,” Feliciano contends “[t]he government cannot credibly dispute” that reservists called to active duty “during a war” are entitled to differential pay “regardless of the connection between their service and the war effort.” Thus, he maintains, “[t]here is no reason to believe the second use of the word ‘during’—in the same textual sentence and three words away—should carry any different meaning.” Feliciano next argues that “Congress has consistently used” the term “during” “throughout the United States Code,” with its ordinary meaning of “a purely temporal overlap.” Moreover, he asserts, there is “consistent legislative history show[ing] that Congress intended [the statute] to have broad effect,” and “the statute’s drafters and proponents” confirm this. Finally, Feliciano contends, the “pro-veteran canon would require giving the statute’s language its most natural meaning.”
Feliciano’s second argument is that the government’s interpretation of the statute would be harmful because it “would obstruct access to differential pay for tens of thousands of reservists.” According to Feliciano, because “two of the three most common provisions of law used to activate reservists . . . are not expressly enumerated,” under the government’s position activations under these provisions will “be subject to the government’s uncertain fact-intensive post hoc test for differential pay.” Finally, he contends, because “private employers are permitted to provide differential pay only in circumstances where the federal government must do so,” “adopting the government’s interpretation of the differential pay statute would massively restrict the availability of differential pay to nearly all reservists.”
In its response brief, the Department of Transportation asserts reservists are only entitled to differential pay “if they are called to active duty in the course of a war or national emergency.” According to the government, a “contingency operation” is defined as including “a military operation that ‘results in the call or order to’ active duty ‘during a war or during a national emergency declared by the President or Congress.'” Thus, it maintains, “[t]he most natural reading of that phrase in context is . . . an order to active duty in the course of or in the process of a war or national emergency—not to any call to active duty that occurs while an unrelated emergency happens to be ongoing.”
The government argues that “‘during’ also is commonly used to mean ‘in the course of,'” which means “in the process of, during the process of.” It contends that, in that sense, “during” “requires a substantive connection between the object of the prepositional phrase that begins with ‘during’ and the term that the phrase modifies.” Thus, according to the government, “the meaning of ‘during,’ like the meaning of many other common words, ‘depends on the context in and purpose for which it is used.'”
Furthermore, the government asserts, the context “demonstrates that Congress used ‘during’ to mean ‘in the course of ’ or ‘in the process of,’ not to connote purely temporal overlap.” First, it argues, a “contingency operation” by its terms “calls for an examination of the particular operation in question, not unrelated conditions that happen to be occurring at the same time.” Second, the government maintains, reading the provision as requiring “a mere temporal overlap with a national emergency would implausibly transform that statute from a carefully crafted list of specific forms of qualifying active-duty service into a cumbersome and roundabout way of including all active-duty service.” Third, the government asserts, the petitioner’s reading would “create superfluidity problems,” because references to nine sets of statutory provisions would “have no practical effect because the final clause sweeps in all calls to active-duty service.” Finally, the government contends, Feliciano’s reading of “during” would incorrectly “suggest that every military operation that results in a call to active-duty service would be a ‘contingency operation,’ potentially triggering all of the dozens of provisions . . . that are applicable to such an operation.”
The government also points out that “orders calling a servicemember to active duty will ordinarily specify on their face whether the call is in the course of a declared national emergency.” Anyway, it contends, “if in a particular instance a servicemember’s orders are not clear, he can seek to have the orders clarified.”
In his reply brief, Feliciano argues that “[a]ny speaker of ordinary English would immediately know the rule of decision from the statute’s plain text.” According to Feliciano, “Congress used an ordinary word here to mean what ‘is surely [its] most natural reading.’” In particular, it argues, “'[d]uring’ means ‘during.’”
Six amicus briefs have been filed after the grant of certiorari. All support the petitioner:
- Military Veterans Advocacy filed an amicus brief in support of the petitioner. In this brief, MVA argues that Congress passes “laws that ‘place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.'” It further asserts that “[t]his Court recognizes a judicial corollary to this congressional solicitude—the ‘venerable’ pro-veteran canon.” However, according to MVA, when the Federal Circuit “impos[ed] an interpretation divorced from the statutory text and without recourse to the pro-veteran canon, it delivered a result that improperly penalizes servicemembers.”
- The National Law School Veterans Clinic Consortium filed an amicus brief in support of the petitioner. The NLSVCC argues that “Congress created the differential pay statute in recognition of the sacrifices of federally employed reservists and the debt of gratitude America owes to these personnel.” It asserts, however, that “the Federal Circuit’s improper interpretation of the differential pay statute undermines Congress’s intent and instead subjects reservists and their families to the threat of financial insecurity.” According to the NLSVCC, the improper interpretation also “undermines the government’s goal of recruiting and retaining reservists,” and “ignores the plain meaning” of the differential pay statute.
- The American Federation of Government Employees filed an amicus brief in support of the petitioner. In this brief, the AFGE argues that all the differential pay statute requires is “a reservist to be called or ordered to active duty ‘during’ a declared national emergency,” not “a ‘direct’ connection between a reservist’s service and a declared national emergency.” It contends that the case the Federal Circuit relied on to deny the petition “ignores the [differential pay] statute’s plain text and adds requirements wholly unsupported by [the differential pay statute] or the cross-referenced statutory provisions,” and moreover is “inconsistent with this Court’s long-held pro-veteran canon.”
- Texas, South Carolina, 19 Other States, and the District of Columbia filed an amicus brief in support of the petitioner. They argue that “neither text, context, nor common sense” support “denying differential pay to reservists just because they did not serve directly in a contingency operation.” They also contend that “[t]he Federal Circuit and the federal government each has its own theory as to why Feliciano is not entitled to differential pay under 5 U.S.C. § 5538,” and that “[b]oth are mistaken.”
- Members of Congress filed an amicus brief in support of the petitioner. They argue “[t]he relevant statutory text shows that Congress intended for the law to apply broadly to federal employees who are called up to active duty under ‘any . . . provision of law during a war or during a national emergency declared by the President or Congress.'” They further assert that “[c]ontemporaneous statements by the law’s authors and other legislative materials confirm that Congress did not intend to limit the application of the law by the kind of service reservists render or the provision of law under which reservists are called to active duty.”
- The Reserve Organization of America filed an amicus brief in support of the petitioner. The ROA argues in this brief that “[t]he Federal Circuit’s cramped reading of the statute relies on a vague (and demonstrably incorrect) hunch about the statute’s purpose that turns Congress’s scheme on its head.” It asserts that, when properly construed, “the statute’s text, structure, and purpose all require differential pay for a mobilized Reservist under any provision of law during a national emergency.” According to the ROA, “[e]ven if the statute was ambiguous (it is not), the pro-servicemember canon would require the same result.”
We will post a recap of the oral argument. As always, you can find all the relevant documents and all of our coverage of the case on our case page.