Feliciano v. Department of Transportation

LII note: The U.S Supreme Court has now decided Feliciano v. Department of Transportation

    Issues

    Is a federal civilian employee who is called or ordered to active duty during a national emergency entitled to differential pay under 5 U.S.C. § 5538(a) regardless of whether their duty is directly connected to the national emergency?

    Oral argument:
    December 09, 2024
    Court below:
    United States Court of Appeals for the Federal Circuit

    This case asks the Supreme Court to determine if any civilian employee who is called to active military duty during a national emergency is entitled to differential pay—compensation for the difference between their civilian pay and military pay—under 5 U.S.C. § 5538(a). Feliciano contends that all civilian employees called to duty during a national emergency should receive differential pay. The Department of Transportation (“DOT”) counters that 5 U.S.C. § 5538(a) requires the civilian employee’s work to be related to a contingency operation rather than merely coinciding temporally with the national emergency to qualify for differential pay. The outcome of this case has profound implications for the United States military’s effectiveness and financial security of military reservists.

    Questions as Framed for the Court by the Parties

    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.

    Facts

    Nick Feliciano served as a civilian air traffic controller for the Federal Aviation Administration and a member of the Coast Guard Reserve. From July to September 2012, Feliciano performed active-duty service. His service was pursuant to 10 U.S.C. § 12302 to support a contingency operation by the Department of Defense (“DOD”). The order calling Feliciano to active duty stated that his service was in support of a specific military operation, Operation Expeditionary Sea Port of Embarkation. During this two-month period, Feliciano received differential pay to reflect the discrepancy in his military and civilian compensation. 5 U.S.C. § 5538(a) awards differential pay when a reservist is called to active duty “pursuant to a call or order to active duty under a provision of law referred to in Section 101(a)(13)(B) of Title 10.”

    Feliciano’s active-duty service was ultimately extended to July 2013, but he did not collect differential pay for this additional ten-month period. In July 2013, Feliciano was called back to active duty in the U.S. Coast Guard pursuant to 10 U.S.C. § 12301(d). He supported Operation Iraqi Freedom and Operation Enduring Freedom, serving until September 2014. The Department of Transportation (“DOT”) did not issue Feliciano differential pay for his service between July 2013 and September 2014.

    Both of Feliciano’s activation orders under § 12302 and § 12301(d) stated that he was being called “in support of a DOD contingency operation.” Additionally, both orders cited President Bush’s Executive Order 13223, which authorized the DOD to exercise additional authority in the wake of the terrorist attacks on September 11, 2001. Feliciano’s duties under both orders involved operating a Coast Guard vessel to protect other vessels entering and exiting the harbor.

    Feliciano filed a complaint with the U.S. Merit Systems Protection Board (“MSPB”) for not receiving differential pay for his § 12301(d) service between July 2013 and September 2014. He alleged that it was a violation of the Uniformed Services Employment and Reemployment Rights Act. MSPB denied relief to Feliciano. Citing Adams, which held that pursuant to § 5538 an employee “must have served pursuant to a call to active duty that meets the statutory definition of contingency operation,” MSPB concluded that Feliciano failed to provide evidence that he was directly involved in a contingency operation, a necessary showing in order to be eligible for differential pay.

    Feliciano appealed to a panel of the United States Court of Appeals for the Federal Circuit, which affirmed the MSPB’s holding for the same reasons. Feliciano petitioned the United States Supreme Court for certiorari, seeking review of whether a federal civilian employee’s call to active duty must have a temporal overlap with a national emergency in order to receive differential pay. On June 24th, 2024, the Court granted a review of this question.

    Analysis

    THE TEXT AND STRUCTURE OF 5 U.S.C. § 5538(a) AND 10 U.S.C. § 101(a)(13)(B)

    Feliciano asserts that Section 101(a)(13)(B) of Title 10 uses the term “during” in its ordinary sense, signifying only a temporal link. To support this definition, Feliciano quotes numerous dictionary definitions of “during” to argue that the term is synonymous with “contemporaneous with.” Feliciano also cites two prior Supreme Court cases, Muscarello and Smith, asserting that these cases recognize “during” and “in relation to” as independent requirements within a statute. Feliciano also relies on United States v. Ressam, which he interprets as holding that “during” on its own does not normally signify the additional requirement for “in connection with.” Feliciano further asserts that other tools of statutory interpretation support this interpretation. First, Feliciano alleges that the statutory structure directs the agency to determine eligibility based on whether a reservist is called to active duty by “a provision of law” referred to in 10 U.S.C. § 101(a)(13)(B), rather than a post hoc review of the facts of each reservist’s service. Second, Feliciano contends that the text of § 5538(b) requires civilian agencies to grant differential pay concurrently with a servicemember’s normal salary, or basic pay. He argues that this requirement would be unworkable under the DOT’s interpretation, as it demands the agency determine the nature of the service in advance—a determination that is not feasible. Accordingly, Feliciano concludes that the DOT’s interpretation conflicts with Congress’s intent as expressed in § 5538(b).

    Moreover, Feliciano argues that other statutory provisions demonstrate Congress’ consistent use of the term “during” to signify purely temporal connections to national emergencies. Feliciano first points to 50 U.S.C. § 1435 and 10 U.S.C. § 8624 as examples where “during” carries this temporal meaning. Feliciano claims that this interpretation is further supported by other provisions concerning reservist’s active duty service, such as 10 U.S.C. § 20103, which allows a reservist to be retained even if their period of service expires during a national emergency. Feliciano contends that this usage of “during” solely refers to timing without requiring a substantive connection to the emergency. In Feliciano’s view, when Congress intends to impose a requirement for both a temporal and a substantive relationship, the text of a statute explicitly states so – something absent here.

    DOT counters Feliciano’s argument, asserting that “during” can also be interpreted as “in the course of” rather than merely indicating a temporal link. To support this interpretation, DOT quotes the Oxford English Dictionary definition to illustrate the use of “during” to mean “in the course of” or “in the process of,” suggesting a substantive nexus.Furthermore, DOT references recent Supreme Court cases such as McIntosh, Lindke, DeVillier, and Sierra Club to illustrate this broader meaning. Moreover, DOT emphasizes that § 101(a)(13)(B), as part of Title 10’s definition of “contingency operation,” necessitates an inquiry into whether a specific contingency operation can be linked to the reservist’s service, rather than merely identifying a simultaneous but unrelated national emergency. DOT contends that Feliciano’s reading would transform a targeted law – designed to reward service related to national emergencies – into a sweeping one that benefits all active-duty service indiscriminately. DOT emphasizes the broad scope of the presidential authority to declare national emergencies, noting that there are currently forty-three ongoing national emergencies. Given this expansive power, DOT argues that Congress could not have plausibly intended § 101(a)(13)(B) to apply to any and all national emergencies. If Congress had intended differential pay to be available for all active-duty service, it would have explicitly stated so rather than cross-referencing the contingency operation definition in § 101(a)(13)(B).

    Finally, DOT argues that interpreting “during” to require a substantive nexus is supported by the statute itself, the Supreme Court’s interpretation, and analogous provisions in other statutes. DOT highlights examples such as 33 U.S.C. 467b, 10 U.S.C. 129d(a)(1), and 42 U.S.C. 9703(a)(2), where “during” serves as a condition for a substantive connection. While DOT does not deny that “during” can be used to refer only to a temporal connection, it underscores the importance of examining the statute in its entirety -pointing to the cross-reference of § 101(a)(13)(B)- in determining whether a substantive nexus is required in this context.

    LEGISLATIVE HISTORY OF 5 U.S.C. § 5538

    Feliciano argues that legislative history supports interpreting “during” as strictly referring to a temporal connection. According to Feliciano, Congress intended for the differential pay statute to have an extensive impact on service members. To support this argument, Feliciano turns to bipartisan proposals of the differential pay statute predating the enacted version of § 5538. Feliciano also highlights the Congressional Budget Office (CBO)’s cost analysis of the proposed Reservists Pay Security Act of 2004, which accounted for all reservists on active duty rather than limiting the analysis to reservists with responsibilities related to emergencies. Feliciano also argues that CBO has consistently included all active-duty servicemembers when scoring similar provisions granting benefits to reservists serving during a national emergency, such as 10 U.S.C. § 12731(f)(2)(B)(i) and 10 U.S.C. § 1074(d)(2). Lastly, Feliciano asserts that the Court should apply the Supreme Court’s longstanding pro-veteran canon and adopt the interpretation most favorable to veterans by awarding differential pay.

    By contrast, DOT alleges that the legislative history indicates Congress’s rejection of language granting differential pay to all reservists called to active duty. First, DOT states that given the clear text and context of the statute, legislative history has no significance here. DOT contends that the Reservists Pay Security Act of 2001 and 2004, the examples of the legislative history that Feliciano references, are irrelevant because Congress never enacted these proposals. DOT asserts that these proposed bills are fundamentally different from § 5538 in that they did not include the more limited definition of active-duty service pursuant to § 101(a)(13)(B).DOT argues this distinction undermines Feliciano’s reliance on the earlier proposals, which fail to accurately represent the legislative intent behind § 5538. Lastly, DOT challenges Feliciano’s reliance on the Congressional Budget Office’s calculations for the proposed bill, noting that there is no clear explanation on why they were based on the number of reservists on active duty. DOT contends that because the bill was never enacted and CBO did not base its calculations on the statutory text, this legislative history is irrelevant to the interpretation of § 5538.

    Discussion

    MILITARY EFFECTIVENESS

    Writing for Feliciano, South Carolina and nineteen other states (collectively “South Carolina et al.”) argue that narrowing the scope of reservists eligible for differential pay risks undermining the national defense of the United States by decreasing the attractiveness of serving as a reservist. South Carolina et al. maintain that in recent years there has been a downward trend in reserve personnel numbers which they attribute to uncompetitive compensation. South Carolina et al. contend that this problem would be exacerbated by limiting the award of differential pay, a policy designed to induce potential recruits into becoming reservists. The Reserve Organization of America (“ROA”), in support of Feliciano, further contends that given the military’s increased reliance on reservists in recent years, decreasing the Government’s ability to recruit them would make military mobilization incredibly challenging. The ROA adds that a robust reservist force is essential for securing the United States and that the decrease in reservist personnel likely to result from the Federal Circuit’s ruling would require the government to significantly increase the size of its current active-duty forces.

    On the other hand, the Department of Transportation (“DOT”) argues that granting differential pay whenever a reservist’s call to active duty has a temporal link to a national emergency would encompass an overly broad group. DOT adds that because there are currently over forty ongoing national emergencies and many of them have no direct connection to military activities, it would be illogical to grant differential pay, a policy grounded in military effectiveness, to all reservists. Additionally, DOT asserts that granting all reservists differential pay would significantly increase the cost of military mobilization. Furthermore, DOT contends that Feliciano’s reading of the word “during” would create ridiculous situations where a reservist is entitled to differential pay even if they are activated to be court-martialed for offenses they committed while previously on duty or for ad hoc training simply because there is a national emergency occurring simultaneously. Additionally, DOT maintains that adopting Feliciano’s definition would impair the functioning of other related government agencies. For instance, DOT notes that DOD is typically required to notify Congress before certain large financial transactions, but this requirement does not apply to transactions associated with a contingency operation. DOT argues that Feliciano’s definition would make any military operation exempt from the notice requirement, thereby impairing transparency.

    RESERVIST FINANCIAL SECURITY

    The American Federation of Government Employees (“AFGE”), in support of Feliciano, argues that conditioning a reservist’s entitlement to differential pay on whether their call to duty occurred in the course of a contingency operation would deprive reservists of compensation when they need it most. AFGE adds that when reservists are activated, they often face additional expenses; and, therefore, not granting differential pay increases the financial burdens reservists face. The National Law School Veterans Clinic Consortium (“The Veterans Consortium”), in support of Feliciano, further asserts that granting differential pay only when a reservist’s call to action meets the statutory definition of a contingency operation would make it challenging for reservists to predict what their financial compensation will be in the long run. The Veterans Consortium contends that reservists’ inability to predict what level of pay they are entitled to would make financial planning extremely challenging and create the risk of financial crises for the reservists.

    Conversely, DOT alleges that granting a reservist differential pay based on whether their service was directly involved in a contingency operation is easily administrable. DOT emphasizes that orders activating reservists will usually directly clarify whether or not the reservist will be entitled to differential pay. DOT asserts that even when it is initially unclear to the reservists if they will be entitled to differential pay, they can always clarify their activation orders through various administrative channels. Overall, DOT maintains that this process ensures that reservists can reliably predict whether they are entitled to differential pay upon activation, thereby avoiding any financial hardships.

     

    Conclusion

    Written by:     

    Alexandra Fertig

    Garrett Taylor

     

    Edited by:       

    Sean Lee

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