Episode 121
Opinion Summary: Feliciano v. Department of Transportation | Date Decided: 4/30/25 | Case No. 23-861
The question presented is: 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 Supreme Court held: A federal civilian employee called to active duty pursuant to “any other provision of law . . . during a national emergency” as described in §101(a)(13)(B) is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency.
Transcript
Department of Transportation, case number 23 861.
Speaker A:The question presented in this case is whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non discretionary criteria.
Speaker A:Justice Gorsuch delivered the opinion of the Court in which Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett joined.
Speaker A:Justice Thomas filed a dissenting opinion in which Justices Alito, Kagan, and Jackson joined.
Speaker A:Please note that this summary is read by an automated voice.
Speaker B:Justice Gorsuch's majority opinion Tens of thousands of federal civilian employees serve the nation as military reservists.
Speaker B:When called to active duty, these reservists often receive less pay than they earn in their civilian jobs.
Speaker B:To address this gap, Congress adopted a differential pay statute requiring the government to make up the difference between a federal civilian employee's military and civilian pay in various circumstances, including when the reservist is called to active duty during a national emergency.
Speaker B:At issue here is whether this language guarantees differential pay when a reservist serves on active duty while a national emergency is ongoing or whether it requires proving a substantive connection between the service and a particular national emergency.
Speaker B:Petitioner Nick Feliciano, an air traffic controller with the Federal Aviation Administration, also served as a Coast Guard reserve petty officer.
Speaker B: In July: Speaker B: on active duty until February: Speaker B:His orders noted that he was called to active duty in support of several contingency operations, including Operations Iraqi Freedom and Enduring Freedom.
Speaker B: suant to orders under section: Speaker B:After the merit Systems Protection Board rejected his differential pay claim, he appealed to the Federal Circuit.
Speaker B: USC section: Speaker B: Section: Speaker B:Section 101 3B defines contingency operation to include operations that result in the call to active duty of service members under several enumerated statutes or any other provision of law during a war or during a national emergency declared by the President or Congress.
Speaker B:While acknowledging he was not called up under any of the specifically listed statutes, Feliciano contended that the final phrase entitled him to differential pay because he was ordered to active duty under any other provision of law.
Speaker B: Section: Speaker B:The Federal Circuit disagreed.
Speaker B:Following its earlier decision in Adams v.
Speaker B:Department of Homeland Security, 3F.
Speaker B:41375, the court held that when a reservist seeks differential pay for service during a national emergency, he must show not only that he served while a national emergency was ongoing, but also that a substantive connection linked his service to a particular national emergency.
Speaker B:A federal civilian employee called to active duty pursuant to any other provision of law during a national emergency as described in section 101A, 13B is entitled to differential pay if the reservist service temporarily coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency.
Speaker B:A.
Speaker B:Several considerations support this interpretation.
Speaker B:First, the word during normally denotes a temporal link and means contemporaneous with it does not generally imply any substantive connection.
Speaker B:Absent evidence that Congress intended a specialized meaning, those governed by law are entitled to rely on its ordinary meaning.
Speaker B:B.
Speaker B:Contextual clues strengthen this conclusion.
Speaker B:When Congress intends to require both temporal and substantive connections, it has done so expressly, using phrases like during and in relation to or during and because of in various statutes.
Speaker B:So the absence of any words hinting at a substantive connection in the statute at issue here supplies a telling clue that it operates differently and imposes a temporal condition alone.
Speaker B: USC section: Speaker B:Language, the government contends, speaks only temporally.
Speaker B:If that phrase requires no substantive connection, it is implausible that during a national emergency in section 101, 13B would do so.
Speaker B:Moreover, requiring a substantive connection would create interpretive difficulties, as the statute provides no principled way to determine what kind of substantive connection would suffice.
Speaker B:The government's interpretation would also create tension with 18 USC section 209 potentially criminalizing differential pay given by private employers to reservists, even though nothing in the phrase during a national emergency tells a private employer that a substantive connection is required, let alone what sort of connection must exist.
Speaker B:Finally, when the Congressional Budget Office scored similar legislation to help Congress understand the likely impact of proposed legislation, it calculated costs based on the total number of reservists on active duty, not just those engaged in emergency related duties.
Speaker B:CBO's approach provides further evidence of how an ordinary reader might have understood the statutory language at issue here.
Speaker B:The government's counterarguments are unpersuasive.
Speaker B:First, although the word during can sometimes imply more than a temporal connection depending on context, in this statutory context a purely temporal relationship is meaningful.
Speaker B:A reservist's active duty service during a national emergency bolsters the government's capacity to address that emergency, whether or not his service directly relates to it.
Speaker B:Second, the government's surplusage argument that a temporal only reading would render the phrase meaningless given the perpetual existence of national emergencies fails for several reasons.
Speaker B:The interpretation leaves no part of the statute without work to do.
Speaker B:The argument depends on contingent factual assumptions about the permanence of emergency declarations.
Speaker B:Similar statutes use temporal language without requiring substantive connections, and the statute provides no principled way to determine what kind of substantive connection would suffice.
Speaker B:Finally, the potential policy consequences the government highlights cannot overcome the statute's most natural reading.
Speaker C:Reversed and remanded Justice Thomas's dissenting opinion, federal civilian employees who also serve as military reservists are entitled to differential pay when they are called to active duty service during a national emergency.
Speaker C:C.
Speaker C: USC section: Speaker C:13b.
Speaker C:Differential pay compensates such reservists for the difference between their military and civilian salaries when active duty service would otherwise cause a pay cut.
Speaker C:The question before us is what Congress meant by the phrase during a national emergency.
Speaker C:Depending on the context, that phrase could require only that a national emergency be concurrently ongoing.
Speaker C:Or it could require that a reservist service also be in support of a particular national emergency.
Speaker C:Given the context here, I would conclude that a reservist is called to serve during a national emergency only if his call comes in the course of an operation responding to a national emergency.
Speaker C:This case turns on the meaning of the word during in section 1 013B.
Speaker C:The parties dispute 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.
Speaker C:As with other common words, the meaning of during depends on the context in and purpose for which it is used.
Speaker C:Sometimes during can merely denote a temporal link wherein one event need only occur while another event is ongoing.
Speaker C:Other times, however, we use during in a narrower relational sense to reference only events that are substantively connected to the ongoing event, that is, events that occur in the course of or in the process of the ongoing event case law reflects this variation in resam.
Speaker C:For example, we held that the word during was used in the broader temporal sense in 18 U.S.
Speaker C:c.
Speaker C:Section 844H, which mandates a sentencing enhancement for defendants who carry an explosive during the commission of a felony.
Speaker C:553 US at 274 to 275, quoting section 844 H.2.
Speaker C:That enhancement thus applies to any defendant whose carrying was contemporaneous with his felony, even if it was not in relation to the underlying felony.
Speaker C:Conversely, courts in other contexts have held that the word during contains a relational component.
Speaker C:For instance, several circuits have recognized this component in the Sentencing Guidelines definition of relevant conduct, which encompasses all actions by the defendant that occurred during the commission of the offense of conviction.
Speaker C:When defining relevant conduct, they have explained, the term during conveys a linkage that is more than a mere temporal overlap.
Speaker C:It also conveys a qualitative overlap such that the conduct must be related or connected to the crime of conviction.
Speaker C:The upshot is that the word during does not have a single definition on which to hang.
Speaker C:Our analysis.
Speaker C:Instead, to determine its meaning here, we must read the section 101 13B catch all in its context and with a view to its place in the overall statutory scheme.
Speaker C:Davis v.
Speaker C:Michigan Department of Treasury, 489 U.S.
Speaker C: ,: Speaker C:The context of section 101 13B makes clear that active duty service occurs during a national emergency within the meaning of that provision only if the service occurs in the course of a national emergency.
Speaker C:In other words, the reservist must be called to serve in an operation responding to a national emergency.
Speaker C:Several important textual clues counsel in favor of this reading.
Speaker C:To start, the scope of the phrase during a national emergency is limited by section 101A, 13B's location within Congress's definition of contingency operation.
Speaker C:Because an entirely artificial definition is rare, we typically expect the meaning of a definition to be closely related to the ordinary meaning of the word being defined.
Speaker C:A.
Speaker C:Scalia and B.
Speaker C: ,: Speaker C:The post enactment history of both section 101 13b and the differential pay statute that incorporates that provision.
Speaker C:Further, counsel in favor of reading during a national emergency narrowly.
Speaker C:It is well established that subsequent acts can shape or focus our selection between possible statutory meanings, and in particular, we must read a change in statutory language.
Speaker C:But here Congress's post enactment amendments would be superfluous if all military operations were already contingency operations through the during a national emergency.
Speaker C:Catch all.
Speaker C:My interpretive conclusion does not mean that Feliciano should be denied differential pay, as even the government admits.
Speaker C: r a proper reading of section: Speaker C:The government argues, however, that petitioner has forfeited any entitlement because we are not a court of first view, I would vacate and remand so that the Federal Circuit may assess these issues in the first instance.
Speaker C:The majority instead grants Feliciano relief based on a misreading of the statute.
Speaker C:I respectfully dissent.
Speaker D:Case Implications this decision may expand the number of federal employees eligible for differential pay when serving on military reserve duty, potentially creating substantial unforeseen costs for federal agencies that had previously denied such claims.
Speaker D:The ruling could prompt federal agencies to revisit their differential pay policies and potentially create administrative challenges in determining eligibility for past periods of service.
Speaker D:Private employers who enjoy similar exceptions under 18 USC section 209h might need to reevaluate their own military leave policies to ensure compliance with this broader interpretation of during a national emergency.
Speaker D:Given that national emergencies have been continuously in effect for decades, with dozens currently active, this temporal only interpretation could effectively transform differential pay from an exception into a general rule for most federal civilian employees called to active duty under any provision of law not specifically enumerated in the statute.
