Feliciano v. Dept. of Transportation (23-861)

argument 23-861

Feliciano v. Dept. of Transportation

Supreme Court of the United States 1h 13m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the central dispute over the meaning of the word “during” in the differential‑pay statute?

John G. Roberts 0:00

Argument next today in case twenty three eight sixty one Feliciano versus the Department of Transportation. Mr. Tut?

Mr. Tut 0:08

Thank you, Mr. Chief Justice, and may it please the court. This case turns on the meaning of the word during. Under the differential pay statute The government must provide differential pay to its civilian employees who also serve in the reserves. When they are called to active duty under a provision of law referred to in section one oh one a thirteen b of title ten Section one hundred and one A thirteen B refers, among other provisions, to any provision of law during a war or a declared national emergency. First. During a national emergency, reservists called to active duty under any provision of law must receive differential pay. The government resists this common sense temporal definition of during. The same definition it argued for in Rassam.

Mr. Tut 0:58

Instead, the government says during here means quote in the course of end quote. And in the course of, it says, requires a substantive connection between a reservist military service and a pending national emergency. That is wrong for at least three reasons. First, it conflicts with the ordinary and conventional meaning of the word During Which is virtually always purely temporal. Second, It doesn't work in the statutory scheme. Which asks only whether A reservist has been called to active duty under a provision of law. referred to in Section one hundred one A thirteen B. Something that doesn't depend on the reasons the reservist was called to active duty. Third, it would create an impossible line drawing problem.

Mr. Tut 1:50

To figure out what it means to have a sufficiently substantive connection to qualify for differential pay. Начне, начнется. But for private employers who will face criminal penalties. Under eighteen USC, section two hundred nine, if they get the question wrong. The government has yet to offer any theory for how to assess whether a reservist service is in the course of a national emergency. Other than saying courts should defer to the government's own characterisation in a reservist orders. There are more reasons the government's interpretation is wrong and ours is right, uh but I see that I am out of time. I welcome the court's questions.

Clarence Thomas 2:27

How do you respond to the government's uh argument that your are that your approach would be very disruptive uh in the other sections of Title ten that uh use the term contingency operation?

Mr. Tut 2:40

Um, Your Honor, this case doesn't actually turn on the definition of contingency operation. Um Congress picked up a uh a part of the definition of contingency operation and used it as a reference for the differential pay statute. But we think that this that the courts ruling in this case wouldn't alter the meaning of the word contingency operation in Title ten in any manner. Um moreover, I'll I'll point out Mr. Feliciano was called to active duty under Section twelve three oh two orders to do the exact same duties that he had performed under his twelve three oh one D orders. The twelve three three oh two orders are enumerated in the statute. Meaning that Under the government's theory, He was already participating in a contingency operation, according to them, when he was called under twelve three oh two.

Mr. Tut 3:30

But the government hasn't pointed out that he was and I don't think that they think that he was, because there are other separate limits on what it means to be a contingency operation. It must be a military operation and it must result in a call to active duty under a provision of law.

Clarence Thomas 3:45

Has your approach ever been the prevailing uh approach?

Mr. Tut 3:49

Um so, Your Honor, we have canvassed All court That we can and essentially this has not been litigated as far as we can tell in the courts. The MSPB judges have consistently sided with us until the Adam's opinion. There were a couple of outliers. But um And we think that in the O'Farrell decision, which predates the Adams decision that is the adverse precedent in the Federal Circuit. There was a suggestion in that case that a contingency operation has to be a military operation that puts American soldiers at a risk