On April 30, the Supreme Court issued its opinion 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 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.” In a 5-4 decision, the Court held that a “federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” Justice Gorsuch authored the majority opinion, which was joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Kagan, and Jackson. Here is our summary of the Court’s opinions.
Majority Opinion
Justice Gorsuch’s majority opinion provided the relevant background:
Nick Feliciano began working for the Federal Aviation Administration as an air traffic controller in 2005. At the same time, Mr. Feliciano served as a reserve petty officer in the United States Coast Guard. In July 2012, the Coast Guard ordered him to active-duty service and, for the most part, he remained on active duty until February 2017.
During much of that period, the statutory authority for Mr. Feliciano’s active-duty service came from 10 U. S. C. §12301(d). As a general matter, that provision authorizes the activation of reservists with their consent. Mr. Feliciano’s §12301(d) orders noted that he was called to active duty to serve “in support of” several “contingency operation[s],” including Operation Iraqi Freedom and Operation Enduring Freedom. Throughout his active-duty service, Mr. Feliciano served onboard a Coast Guard ship escorting other vessels to and from harbor.
While Mr. Feliciano served on active duty pursuant to orders under §12301(d), the government did not afford him differential pay. Eventually, that led Mr. Feliciano to seek relief from the Merit Systems Protection Board. There, he claimed the FAA had created a hostile work environment and unlawfully denied him differential pay during the time he spent serving on active duty under §12301(d). After the Board rejected his claims, Mr. Feliciano appealed to the Federal Circuit.
On appeal, Mr. Feliciano argued that two statutes entitled him to differential pay: 5 U.S.C. §5538(a) and 10 U.S.C. §101(a)(13)(B). As relevant here, §5538(a) requires the government to provide differential pay to a federal civilian employee reservist when the military orders him to active-duty service “under. . . a provision of law referred to in section 101(a)(13)(B) of title 10” of the U.S. Code. Section 101(a)(13)(B), in turn, forms part of the definition of the phrase “contingency operation.” A contingency operation, that statute says, includes a “military operation that . . . results in the call or order to . . . active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12304a, 12305, or 12406 of [title 10], chapter 13 of [title 10], section 3713 of title 14, or any other provision of law during a war or during a national emergency declared by the President or Congress.”
Though Mr. Feliciano acknowledged that he was not called up under any of the specific statutes listed in §101(a)(13)(B), he argued that the statute’s closing words, italicized above, entitled him to differential pay. After all, the Coast Guard called him to active duty under another “provision of law” (§12301(d)), and his orders came “during a national emergency.” As a result, he contended, he served pursuant to a call to active duty under “a provision of law referred to in 10 U. S. C. §101(a)(13)(B),” and was thus entitled to differential pay under §5538(a).
The Federal Circuit disagreed. Citing its earlier decision in Adams v. Department of Homeland Security, 3 F.4th 1375 (2021), the court reasoned that, when a reservist seeks differential pay for service “during a national emergency,” he must show not only that he served on active duty while a national emergency was ongoing. He must also show a substantive connection between his service and a particular national emergency. Because Mr. Feliciano had not made that second showing, the court held, he was not entitled to differential pay. Mr. Feliciano sought review of the Federal Circuit’s decision, and we agreed to take his case.
Justice Gorsuch’s began his analysis by noting how, “[a]t its core, the dispute before us turns on the meaning of the phrase ‘during a national emergency.'” According to Justice Gorsuch, “[s]everal considerations persuade us that Mr. Feliciano’s interpretation is the sounder one.” He “start[ed] with the word ‘during,'” indicating the word normally “‘denotes a temporal link’ and means ‘contemporaneous with.'” By contrast, he said, “the word ‘during’ does not generally imply a substantive connection.” He supporting this interpretation by pointing to “a number of contextual clues.” These included other laws, including “another provision that can trigger differential pay” and “the views of others who have come this way before us,” including the Congressional Budget Office.
Gorsuch then responded to the government and the dissent’s position. He said they:
- “do not adequately grapple with the textual and contextual evidence,”
- “give short shrift to . . . the ordinary meaning of the word ‘during,'”
- “brush aside other statutes showing that Congress knows how to impose a substantive connection when it wishes,”
- “do not convincingly explain how §12302 might be read to require only a temporal connection but ‘during a national emergency’ must be read to demand more,” and
- “discount CBO’s practice.”
He also said “they nowhere offer a principled basis for preferring the substantive connection they propose.”
“In the end,” Justice Gorsuch concluded, the Court was “persuaded that the statutory language means what its terms most naturally suggest.” That is, a “federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.”
As a result of Justice Gorsuch’s analysis, the Court reversed the judgment of the Federal Circuit and remanded the case for further proceedings.
Dissenting Opinion
Justice Thomas authored the dissenting opinion. In it, he agreed that “this case turns on the meaning of the word ‘during,'” and that the dispute is “whether the phrase ‘during a national emergency’ covers any reservist who performs active-duty service while a national emergency is ongoing, or whether it requires a connection between the service and the emergency.” Justice Thomas pointed to several sources he said reflect the fact that the term “during” contains a relational component as well as temporal element: common meaning, relevant case law, courts in other contexts, and other provisions in Title 10.
Justice Thomas looked at contextual clues to evaluate the meaning of the phrase, and determined that they support the conclusion that “the reservist must be called to serve in an operation responding to a national emergency.” He explained that, “[a]s a matter of ordinary meaning, the term ‘contingency operation’ in Title 10 refers to the subset of military operations that relates to a particular contingency.” Thus, he continued, the Court “should . . . expect” the relevant provision “to cover only operations that are part of the military’s response to ’emergency’ situations or otherwise necessitated by ‘required military operations.'” He found a “common thread” among the listed categories of “contingency operations”: “they contemplate only exigent military operations.” Thus, he said, “it follows that the same should be true of the ‘during a national emergency’ catchall.”
Justice Thomas considered other sources of interpretation. For example, he stated that, “[b]ecause we disfavor statutory interpretations that would render statutory language all but superfluous ‘in practical effect,’ it makes little sense to conclude that Congress enacted these amendments in case of a hypothetical day without emergencies.”
Justice Thomas concluded by saying that he “would vacate and remand” rather than grant Feliciano “relief based on a misreading of the statute.”