Earlier this month, the Supreme Court heard oral argument in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board and then the Federal Circuit. In this case, the Supreme Court is considering 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.” This is our argument recap.
Andrew Tutt argued on behalf of Feliciano. According to Tutt, this case “turns on the meaning of the wording ‘during.'” Tutt maintained that, although the government claims that “‘during’ here means ‘in the course of’ . . . and requires a substantive connection between a reservist’s military service and a pending national emergency,” this is wrong for three reasons. First, according to Tutt, this reading “conflicts with the ordinary and conventional meaning of the word ‘during,’ which is . . . purely temporal.” Second, Tutt continued, the statutory scheme does not “depend on the the reasons the reservist was called to active duty.” Third, Tutt maintained, the government’s reading “would create an impossible line-drawing problem to figure out what it means to have a sufficiently substantive connection.”
Justice Thomas asked about the government’s argument that Feliciano’s approach “would be very disruptive in the other sections of Title 10 that use the term ‘contingency operation.'” In response, Tutt argued that “the definition of ‘contingency operation'” was not what the case turned on, and that “the Court’s ruling in this case wouldn’t alter the meaning of the word ‘contingency operation’ in Title 10 in any manner.”
Justice Jackson then asked if the practical effect of Feliciano’s reading, given that there have always been declared national emergencies for many years, would be that “every reservist gets differential pay who is called up.” She wondered why Congress would have “carefully amended the statute over time” if this was the correct reading. In response, Tutt asserted that it was easier to “add a new enumerated provision to [Section] 101(a)(13)(B) [of Title 10] then it is to override [the Office of Personnel Management]’s guidance.”
Justice Sotomayor then asked why Congress “crafted a very careful limitation” and rejected provisions that said there was “differential pay for anybody called up.” In response, Tutt contended that the statute was written this way because there was a “legislative bargain that was struck” between members of Congress who “knew [the statute] would function” to pay anybody called up and other members of Congress who thought it was “actually capable of constraining the availability of differential pay.”
Justice Jackson asked if there were circumstances where “during” “could be construed reasonably as a substantive connection” and if looking at context is necessary. Tutt asserted that he had not “found a dictionary that says [‘during’] can have a substantive connection.” Tutt further argued that, regarding context and whether that supported the government’s interpretation, the Court did not think that “during” “was very flexible at all” in previous cases and, instead, was “quite clear” that “during” can really only mean “at the same time as.” Tutt also contended that the question is whether “the statute is being used during a national emergency,” not is the soldier being used.
Justice Kavanaugh asked about how Congress understood the legislation and the government’s argument that the Congressional Budget Office did not “explain the basis for its assumption” that the statute would “apply to everyone called to active duty.” In response, Tutt contended that, “if it was a mistake [the] CBO . . . made it over and over again.” According to Tutt, this same understanding was “used in around nine other places for veterans’ benefits cases,” and “they always scored it this way.”
Nicole Reaves argued on behalf of the government. According to Reaves, “the meaning of the word ‘during’ in any particular sentence will depend on context.” Reaves maintained that there are “three pieces of context that make clear that ‘during a nation emergency’ means in the course of a national emergency.” First, Reaves contended, the phrase “is part of a broadly applicable definition of ‘contingency operation,'” which “connotes an operation taken in response to a particular contingency.” Second, Reaves asserted, Feliciano’s reading of “during” makes “most of Section 101(a)(13)(B) unnecessary” and “renders the list of expressly cross-referenced provisions and Congress’s multiple additions to that list entirely superfluous.” Third, according to Reaves, Feliciano’s reading “would result in a number of anomalies, including requiring differential pay for reservists who have been court-martialed and incarcerated.”
Justice Thomas asked whether the government’s position had “been adopted before by [the] MSPB or by the Fed[eral] Circuit.” Reaves asserted that it “has been adopted by the Federal Circuit,” albeit “probably a bit narrower.” Reaves further responded that “the MSPB as a whole has never issued a precedential decision on this,” and, she continued, individual “ALJS have come out in different ways.”
Chief Justice Roberts asked how “a normal person would read that language” in the statute. In response, Reaves argued it would not “make sense to read that so broadly as to swallow up those other [cross-referenced] provisions.” Reaves further contended that “during” is “part of the definition of ‘contingency operation,'” which is not “something like volunteering for training” but instead an “unexpected mission in response to a contingency.” Thus, according to Reaves, a normal person would not think that the language “just has a temporal component,” but instead would think it has “a substantive connection.”
Justice Kagan then asked about the relevance of the CBO scoring. Reaves responded by asserting that “the language originated in CBO reports that were analyzing materially different statutory proposals that suggested that all active-duty service would be covered.” She also said that, “when that statutory text changed, the CBO reports didn’t analyze that [ but] . . . just carried over the analysis from those prior reports.” Reaves asserted that, even under Feliciano’s reading, “those CBO reports got one thing wrong,” so they should not “play any sort of major influence in overriding the best meaning of the congressional text.”
Justice Kavanaugh then asked whether adopting Feliciano’s interpretation “would cause ripple effect problems in other areas of the law.” Reaves argued in response that “either ‘contingency operation’ or one of the provisions within that definition are referenced . . . . [o]ver 50 times in Title 10, over 20 times outside of Title 10.” She said “it would not make sense to use Feliciano’s reading of ‘during’ in all of those sorts of contexts.”
In his rebuttal, Tutt asserted that, “[i]f an ordinary person read this statute, they would think: I get differential pay as long as [I am] called to active duty under a provision of law during a national emergency.” Tutt further contended that the ripple-effect idea is “in the air, but it [does not] have practical effects with how the government is actually treating contingency operations on the ground.”
We’ll report more when the Court decides the case.