Amicus Curiae Brief — Nick Feliciano, Petitioner v. Department of Transportation

Supreme Court briefFeb 26, 2024

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Nos. 23-861, 23-868

IN THE

Supreme Court of the United States

NICK FELICIANO,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

CHARLES FLYNN,

Petitioner,

DEPARTMENT OF STATE,

Respondent.

On Petitions for Writs of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF OF THE RESERVE ORGANIZATION OF

AMERICA AS AMICUS CURIAE SUPPORTING

PETITIONERS

SCOTT A. FELDER

Counsel of Record

BOYD GARRIOTT

KAHLIL H. EPPS

WESLEY E. WEEKS

LUKMAN AZEEZ

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

SFelder@wiley.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT .................................. 2

ARGUMENT ............................................................ 4

The Differential-Pay Statute Protects

Reservists And Bolsters The Military’s

Operational Readiness....................................... 4

A. Congress Enacted Civilian-Employment

Policies Like The Differential-Pay Statute

To Ensure Military Effectiveness. ............. 4

B. The Differential-Pay Statute Protects

Reservists And Helps The Military Achieve

Its Objectives. ............................................. 8

II. The Proper Scope Of The Differential-Pay

Statute Is An Exceptionally Important

Question Worthy Of This Court’s Review. ...... 10

CONCLUSION ....................................................... 14

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. DHS,

3 F.4th 1375 (Fed. Cir. 2021)......................... 11, 12

Feliciano v. DOT,

No. 2022-1219, 2023 WL 3449138

(Fed. Cir. May 15, 2023) ...................................... 11

Flynn v. Department of State,

No. 2022-1220, 2023 WL 3449169

(Fed. Cir. May 15, 2023) ...................................... 11

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) .............................................. 12

Monroe v. Standard Oil Co.,

452 U.S. 549 (1981) ................................................ 6

Torres v. Texas Department of Public

Safety,

597 U.S. 580 (2022) ............................................ 4, 5

Statutes

5 U.S.C. § 5538 .................................................. 2, 8, 10

10 U.S.C. § 101 .................................................... 10, 12

50 U.S.C. § 3815 ........................................................ 13

Omnibus Appropriations Act, Pub. L.

No. 111-8, 123 Stat. 524 (2009) ............................. 7

Selective Service Act of 1948, Pub. L.

No. 80-759, 62 Stat. 604 (1948) ............................. 5

iii

Selective Service and Training Act of

1940, Pub. L. No. 76-783, 54 Stat.

885 (1940) ............................................................... 4

Uniformed Services Employment and

Reemployment Rights Act of 1994,

Pub. L. No. 103-353,108 Stat. 3149

(1994) .................................................................. 4, 5

Vietnam Era Veterans’ Readjustment

Assistance Act, Pub. L. No. 93-508,

88 Stat. 1578 (1974) ............................................... 5

Legislative Materials

86 Cong. Rec. 10573 (1940) ......................................... 5

149 Cong. Rec. S3517 (2003) ................................... 6, 7

H.R. Rep. No. 105-448 (1998)...................................... 5

H.R. Rep. No. 108-409 (2004).................................. 6, 7

H. R. Rep. No. 1303 (1966) .......................................... 6

Administrative Materials

Continuation of the National

Emergency With Respect to Certain

Terrorist Attacks, 88 Fed. Reg.

62,433 (Sep. 7, 2023) ............................................ 11

Department of Defense, 2022

Demographics Profile of the Military

Community (2023),

http://tinyurl.com/2hv3vmrs .................................. 9

Department of Defense, Comprehensive

Review of the Future Role of the

Reserve Component, Vol. 1 (Apr. 5,

2011) ..................................................................... 10

Department of Defense, Dir. 1200.17,

Managing the Reserve Components

as an Operational Force (Oct. 29,

2008) ....................................................................... 7

Department of Defense, Office of People

Analytics, 2020 Status of Forces

Survey Reserve Component

Members (SOFS-R) (July 14, 2021),

http://tinyurl.com/stawpfkb ................................... 8

Presidential Statement on Signing Pub.

L. No. 90-491, 4 WEEKLY COMP.

PRES. DOC. (Aug. 17, 1968) .................................... 5

Proclamation No. 10668, 88 Fed. Reg.

75,473, 75,474 (Oct. 31, 2023) ............................. 13

Other Authorities

Air Reserve Personnel Center, In order

to preserve the nation’s combat

readiness,

http://tinyurl.com/337w8p2j (last

visited Feb. 26, 2024) ........................................... 13

Brad McNally et al., Now is the time to

save the all-volunteer force,

Brookings (Jan. 19, 2023),

http://tinyurl.com/e4mre7uy .................................. 8

Col. (Ret.) Richard J. Dunn, America’s

Reserve and National Guard

Components: Key Contributors to

U.S. Military Strength, The Heritage

Found. (Oct. 5, 2015),

http://tinyurl.com/33nrmuwv ................................ 9

Lawrence Kapp et al., Congressional

Research Service, Reserve

Component Personnel Issues:

Questions and Answers, (updated

Nov. 2, 2021),

http://tinyurl.com/5n7kf9kd ............................. 7, 13

Reserve Forces Policy Board, Improving

the Total Force: Using the National

Guard and Reserves, RFPB Report

FY20-01 (Aug. 14, 2020),

http://tinyurl.com/5n929tz7 ............................. 9, 10

Thomas Novelly et al., Big Bonuses,

Relaxed Policies, New Slogan: None

of It Saved the Military from a

Recruiting Crisis in 2023,

Military.com (Oct. 13, 2023),

http://tinyurl.com/mrs83er5 .................................. 8

INTEREST OF AMICUS CURIAE1

Amicus curiae Reserve Organization of America

(“ROA”) is America’s only exclusive advocate for the

Reserve and National Guard—all ranks, all services.

With a sole focus on support of the Reserve and

National Guard, ROA promotes the interests of

Reserve Component members, their families, and

veterans of Reserve service. As part of this advocacy,

ROA regularly files briefs in this Court and others on

matters that implicate the interests of the Reserve

Components.

This case raises issues that are critically

important to ROA and its members. The Federal

Circuit has, in many circumstances, barred federal

civilian-employee

Reservists

from

receiving

differential pay when they mobilize into the military

to serve their nation. The result is to disadvantage

Reservists over other federal civilian employees, to

deter military service, and to undermine the

readiness and effectiveness of the Armed Forces.

The Court should grant the Petition in Feliciano

to remedy the Federal Circuit’s interpretive error and

to ensure that it does not continue to injure Reservists

and hinder military readiness.

No party’s counsel authored this brief in whole or in part, and

no person or entity other than amicus or its counsel made a

monetary contribution to fund the brief’s preparation or

submission. Because this brief is filed more than 10 days prior

to the filing deadline, it serves as timely notice to counsel of

record for all parties.

SUMMARY OF ARGUMENT

United States military reserves date back to

before the founding of the Republic when national

citizen-soldier forces fought in the French and Indian

War. State militias—which became the National

Guard—played a major role in the Revolutionary War.

During the Civil War, state militias supplied 96

percent of the Union army.

About 400,000

Guardsmen served in World War I, representing the

largest state contribution to overseas military

operations during the 20th century. Nearly 300,000

Guardsmen served in World War II. More than

200,000 Reservists contributed to the liberation of

Kuwait in the Gulf War. And since September 11,

2001, more than a million Reservists and National

Guardsmen have answered the call to serve their

nation, many several times over.

Today, the Reserve Components constitute a

significant portion of the total U.S. military force.

Reservists hail from all walks of life. They are public

high school teachers, doctors, lawyers, police officers,

and, like Petitioners, federal civilian employees. They

are united not only by their undying devotion to this

nation, but by their commitment to public service—

many devoting their entire careers to working for the

federal government.

This case concerns a statute designed to minimize

the economic burdens these citizen-warriors would

otherwise bear when mobilizing from their civilian

jobs: the differential-pay statute. See 5 U.S.C. § 5538.

The statute is part of a long line of laws—ranging from

reemployment rights to nondiscrimination rules—

that were enacted to minimize the negative impact of

military service on civilian careers.

The differential-pay statute acknowledges a basic

economic reality: mobilized federal employees often

earn less on active duty than they would have earned

in their federal civilian positions. The statute is

designed to ensure that these employees do not take a

financial hit when they leave their typical day job to

serve in the Armed Forces.

The differential-pay statute is an important part

of Congress’s scheme to promote the military’s

operational readiness. Over the last three decades,

the Reserve Components have shifted from a force of

last resort to an integrated fighting force that is vital

to military operations. By removing what is often a

substantial economic disadvantage to service, the

differential-pay statute helps to recruit and retain

Reservists for that fighting force. And it makes sure

that Reservists will not hesitate to answer their

nation’s call for fear of missing a loan payment or

allowing a bill to go unpaid.

The decisions below undermine Congress’s intent

in enacting the differential-pay statute and—

consequently—the military’s operational readiness.

The Federal Circuit’s cramped reading of the statute

has no basis in its text or structure. Instead, the court

relies on a vague (and demonstrably incorrect) hunch

about the statute’s purpose that turns Congress’s

scheme on its head. This Court should grant the

Petition in Feliciano to remedy this error that carries

significant practical consequences for our country’s

Armed Forces.

ARGUMENT

I. THE

DIFFERENTIAL-PAY

STATUTE

PROTECTS RESERVISTS AND BOLSTERS

THE

MILITARY’S

OPERATIONAL

READINESS.

A. Congress Enacted Civilian-Employment

Policies Like The Differential-Pay

Statute

Ensure

Military

Effectiveness.

Congress has long sought “to smooth”

servicemembers’ “reentry into civilian life.” Torres v.

Texas Dep’t of Pub. Safety, 597 U.S. 580, 585 (2022).

And for good reason. Defending the United States is

a trying endeavor for the brave Americans who serve

our nation. Because of the immense pressures

soldiers face in the course of their service, Congress

has made it a priority to at least “eliminat[e] or

minimiz[e] the disadvantages to civilian careers and

employment which can result from such service.”

Uniformed Services Employment and Reemployment

Rights Act of 1994, Pub. L. No. 103-353, § 2(a)(1), 108

Stat. 3149, 3150 (1994) (codified at 38 U.S.C. §

4301(a)(1)).

Congress has used these civilian-employment

policies “to encourage service in the Armed Forces in

a variety of ways.” Torres, 597 U.S. at 585. For

example, through the Selective Service and Training

Act of 1940, Congress required federal and private

employers to “restore[]” servicemembers to their prior

position or a “position of like seniority, status, and

pay” after being “inducted into” military service. See

Pub. L. No. 76-783, § 8(b), 54 Stat. 885, 890 (1940). By

ensuring a “right to return to civilian employment

without adverse effect,” Torres, 597 U.S. at 585

(quoting H.R. Rep. No. 105-448, at 2 (1998)), Congress

sought to “provid[e] the Army and Navy with patriotic

men who are willing and anxious to serve their

country,” 86 Cong. Rec. 10573 (1940) (statement of

Sen. Thomas); see also Selective Service Act of 1948,

Pub. L. No. 80-759, § 1(b), 62 Stat. 604, 605 (1948)

(explaining that reemployment helps “achieve[]” and

“maintain[]” “an adequate armed strength” “to insure

the security of th[e] Nation.”).

But reemployment rights are only one arrow in

Congress’s civilian-employment quiver. Congress has

also “promote[d] the maximum of employment and job

advancement opportunities within the Federal

Government

for”

veterans

through

special

“readjustment appointments.”

Vietnam Era

Veterans’ Readjustment Assistance Act, Pub. L. No.

93-508, § 403, 88 Stat. 1578, 1593 (1974). And it

prohibits civilian employers from discriminating

against employees and applicants based on “service in

the uniformed services.” Pub. L. No. 103-353, § 2(a),

108 Stat. 3149, 3153 (1994) (codified at 38 U.S.C.

§ 4311).

Congress has also long recognized the importance

of extending civilian-employment policies to

Reservists. As President Johnson explained when he

signed legislation granting Reservists reemployment

rights, “members of the reserve components are . . .

indispensable sinews in the military strength of our

Nation.” Presidential Statement on Signing Pub. L.

No. 90-491, 4 WEEKLY COMP. PRES. DOC. (Aug. 17,

1968).

As citizen-soldiers, Reservists face unique

problems for which Congress has given special

attention. For example, Congress has legislated to

“protect” against “employment practices that

discriminate against employees with Reserve

obligations,” such as “weekend drills or summer

training.” Monroe v. Standard Oil Co., 452 U.S. 549,

557 (1981) (cleaned up). Legislators recognized that

“[i]f these young men are essential to our national

defense, then certainly our Government and

employers have a moral obligation to see that their

economic wellbeing is disrupted to the minimum

extent possible.” Id. at 561 (quoting H. R. Rep. No.

1303 (1966)).

In 2003, Congress considered a significant new

measure to minimize disruption to Reservists’

economic wellbeing: a differential-pay scheme. The

bill proposed to pay federal-employee Reservists the

difference between their military pay and their

civilian pay during a mobilization in order to offset

any negative financial consequences of service. It was

introduced “with war looming with Iraq,” “hundreds

of thousands of our troops poised for battle overseas,”

and “nearly 170,000 Guard and Reservists mobilized

and serving on active duty.” 149 Cong. Rec. S3517

(2003) (statement of Sen. Durbin). Thousands of these

mobilized Reservists were federal employees, and

many of them incurred significant financial losses

because their military pay was less than their federal

civilian pay. H.R. Rep. No. 108-409, at 2, 5 (2004).

Legislators recognized that it was “unfair to ask the

men and women who have volunteered to serve their

country, often in dangerous situations, to also face a

financial strain on their families.” 149 Cong. Rec.

S3517 (statement of Sen. Durbin). Seeking to make

the federal government a “model employer” and an

“example for large businesses,” ibid. (statement of

Sen. Mikulski), the differential-pay bill sought to

“alleviate the financial burdens created when federal

employees are called to active duty and experience a

reduction in pay,” H.R. Rep. No. 108-409, at 2.

After the differential-pay bill was introduced, the

need for its enactment became increasingly acute.

The 2000s saw the Reserves transform from a “force

of last resort” into “vital contributors on a day-to-day

basis around the world.” Lawrence Kapp et al., Cong.

Rsch. Serv., Reserve Component Personnel Issues:

Questions and Answers at 7, (updated Nov. 2, 2021)

(“Reserve

Component

CRS

Report”),

http://tinyurl.com/5n7kf9kd.

2008,

the

Department of Defense issued a Directive to

redesignate the Reserve Components “as an

operational force.”

Dep’t of Def., Dir. 1200.17,

Managing the Reserve Components as an Operational

Force, ¶¶ 1, 4a–b (Oct. 29, 2008). These changes

effectuated a monumental shift in military

composition: “reservists contributed about 1 million

duty-days per year” in the late 1980s, compared to

“68.3 million days in FY2005” and “17.3 million days”

in 2014—the most recent year of available data.

Reserve Component CRS Report at 9 n.35. And while

prior Reserve mobilizations were often involuntary,

post-September 11 operations increasingly rely on

voluntary mobilizations—spurring a need to eliminate

obstacles to voluntary service. See id. at 8–9.

In 2009, Congress responded to these changes by

enacting the differential-pay statute. See Omnibus

Appropriations Act, Pub. L. No. 111-8, § 751, 123 Stat.

524, 693–95 (2009). The statute provides that a

federal employee who is “absent” from their position

“in order to perform active duty in the uniformed

services pursuant to a call or order to active duty

under [certain provisions] shall be entitled” to the

difference between their military pay and their

civilian salary. 5 U.S.C. § 5538(a).

B. The Differential-Pay Statute Protects

Reservists And Helps The Military

Achieve Its Objectives.

The differential-pay statute is an important tool

for the Government to recruit and retain Reservists

and to incentivize voluntary mobilizations. Such tools

are essential to military readiness. The Reserve

Components reported “dire recruiting numbers” in

2023. Thomas Novelly et al., Big Bonuses, Relaxed

Policies, New Slogan: None of It Saved the Military

from a Recruiting Crisis in 2023, Military.com (Oct.

13, 2023), http://tinyurl.com/mrs83er5.

Defense

analysts are actively calling for efforts to “recruit” and

“retain members in the service, both active and

reserve.” Brad McNally et al., Now is the time to save

the all-volunteer force, Brookings (Jan. 19, 2023),

http://tinyurl.com/e4mre7uy.

Meanwhile, 37% of

Reservists are not satisfied with their compensation.

Dep’t of Def., Office of People Analytics, 2020 Status

of Forces Survey Reserve Component Members

(SOFS-R)

(July

14,

2021),

http://tinyurl.com/stawpfkb. One in five Reservists

report that they are “unlikely to stay” in their

position. Id. at 9.

Inhibiting Congress’s choice to minimize economic

disadvantages

Reservists

under

these

circumstances would hinder the military’s operational

effectiveness.

Approximately one-million citizenwarriors serve in the Ready Reserve while

maintaining their civilian employment. See Dep’t of

Def., 2022 Demographics Profile of the Military

Community

(2023),

http://tinyurl.com/2hv3vmrs.

The

Reserve

Components bear a significant burden in carrying out

the nation’s overseas operations and “provid[ing]

critical combat power and support.” Col. (Ret.)

Richard J. Dunn, America’s Reserve and National

Guard Components: Key Contributors to U.S. Military

Strength, The Heritage Found. (Oct. 5, 2015),

http://tinyurl.com/33nrmuwv.

Reservists “have

repeatedly deployed and operated . . . in Bosnia, Iraq,

Afghanistan, Syria and numerous other contingency,

humanitarian, and homeland support missions to

include providing the majority of the COVID-19

(Coronavirus) pandemic response forces.” Reserve

Forces Pol’y Bd., Improving the Total Force: Using the

National Guard and Reserves, RFPB Report FY20-01

at 9 (Aug. 14, 2020), http://tinyurl.com/5n929tz7. In

fact, over one-million Reservists have been activated

since September 11, 2001. Id. at 30. In that time,

more than half of Reservists have been mobilized

more than once, and 89% of the Reservists’

mobilizations were to combat zones. Ibid.

The military derives substantial benefit by

tapping into the abilities that Reservists develop in

their civilian careers.

Reservists “bring unique

capabilities and professional expertise to the Total

Force gained through years of experience” in “the

civilian sector”—especially in professions that are

typically too “cost-prohibitive to develop in the [Active

Components] (i.e. doctors, nurses, lawyers, computer

analysts, cyber experts, engineers, etc.).” Id. at 36.

And the Reserve Components “require[] significantly

less overhead and infrastructure costs”—“typically

less than one-third the cost of the Active Component.”

Id. at 21. Yet, the Reserve Components’ “operational

record

consistently

demonstrates

exceptional

performance.” Id. at 9.

The Reserve Components are an indispensable

part of securing and protecting the national interest.

As the Department of Defense itself found: “Unless we

had chosen to dramatically increase the size of the

Active Components, our domestic security and global

operations since September 11, 2001 could not have

been executed without the activation of hundreds of

thousands of trained Reserve Component personnel.”

Dep’t of Def., Comprehensive Review of the Future

Role of the Reserve Component, Vol. 1, at 1–2 (Apr. 5,

2011) (emphasis added).

The differential-pay statute is a key piece of

Congress’s strategy to ensure the readiness of the

Reserve Components—and thus the military as a

whole.

II. THE

PROPER

SCOPE

THE

DIFFERENTIAL-PAY STATUTE IS AN

EXCEPTIONALLY IMPORTANT QUESTION

WORTHY OF THIS COURT’S REVIEW.

Congress provided that federal employees are

entitled to differential pay where they are absent

“pursuant to a call or order to active duty under,” 5

U.S.C. § 5538(a), a list of enumerated provisions “or

any other provision of law during a war or during a

national emergency declared by the President or

Congress,” 10 U.S.C. § 101(a)(13)(B) (emphasis

added). The plain meaning of this statute is clear:

Because the President has declared a national

emergency that has been ongoing since September 14,

2001, see Continuation of the National Emergency

With Respect to Certain Terrorist Attacks, 88 Fed.

Reg. 62,433 (Sep. 7, 2023), a Reservist called up under

any “provision of law” is eligible for differential pay.

This provision contains no additional caveats about

the nature of a Reservist’s service—including whether

it is voluntary or involuntary or the type of mission

the Reservist undertakes while mobilized.

The Federal Circuit rejected this straightforward

statutory text, instead relying on policy preferences

that are at odds with Congressional intent. In Adams

v. DHS, 3 F.4th 1375 (Fed. Cir. 2021), it held

(wrongly) that Congress did not “intend[]” for the

statute to cover “voluntary duty that was unconnected

to the emergency at hand.” Id. at 1380. In Feliciano

v. DOT, No. 2022-1219, 2023 WL 3449138 (Fed. Cir.

May 15, 2023), the Federal Circuit used this flawed

rationale to deny differential pay to a Federal

Aviation Administration employee who “perform[ed]

military duty in the Coast Guard to support various

operations,” including “Operation Iraqi Freedom” and

“Operating Enduring Freedom.” Id. at *1. In the

Federal Circuit’s opinion, this “voluntary, active

service” was not sufficiently connected to “the ongoing

national emergency.” Id. at *2. And in Flynn v. Dep’t

of State, No. 2022-1220, 2023 WL 3449169 (Fed. Cir.

May 15, 2023), the court denied differential pay to a

federal employee who “performed active duty . . . at

the Office of Military Commissions at the Pentagon.”

Id. at *1.

As Petitioners persuasively explain, the Federal

Circuit’s interpretation of the differential-pay statute

is wrong. The court ignores the plain text of the

statute to conduct an ad hoc inquiry into whether a

Reservist’s service is sufficiently “connected” to a

national emergency. And it misapplies canons of

construction while ignoring the “canon that provisions

for benefits to members of the Armed Services are to

be construed in the beneficiaries’ favor.” King v. St.

Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991).

But perhaps most egregious is the Federal

Circuit’s distinction between voluntary and

involuntary mobilizations. The court suggests that

the phrase “any other provision of law” does not

include voluntary service because it follows a list of

provisions that provide for involuntary service. See

Adams, 3 F.4th at 1380. But the statute provides

differential pay for voluntary service “during a

national emergency.” 10 U.S.C. § 101(a)(13)(B). Far

from being “implausible,” Adams, 3 F.4th at 1380,

that outcome makes good sense. Absent a national

emergency, voluntary mobilizations may be excluded.

But when there is a national emergency, the military

needs the ability to tap every available member of its

operational forces, including those possessing the

most relevant and unique expertise. In such an allhands-on-deck situation, Reservists should not be

disincentivized from volunteering for service for fear

of the financial repercussions that will occur if they

do.

Absent a textual commitment, there is no reason

to assume that Congress would have drawn a sub

silentio

distinction

between

voluntary

and

involuntary deployments. The United States ended

involuntary military service half-a-century ago. See

50 U.S.C. § 3815(c) (providing that generally “no

person shall be inducted for training and service in

the Armed Forces”). With “50 years of an allvolunteer force,” Proclamation No. 10668, 88 Fed.

Reg. 75,473, 75,474 (Oct. 31, 2023), it would make

little sense to presume from Congress an atextual

policy-driven distinction between volunteer and nonvolunteer mobilizations by Reservists.

Indeed, the Federal Circuit’s reading of the

differential-pay statute will actively thwart

Congress’s intent. See Brief for Members of Congress

as Amici Curiae at 11, Adams v. DHS, No. 21-1134

(filed Mar. 2022) (explaining that the Federal

Circuit’s reading “frustrate[s] the intent of

Congress”). The Government has activated Reservists

“involuntarily and voluntarily” for significant

operations, including “Operation Noble Eagle,”

“Operation Iraqi Freedom,” and a host of “COVID-19

response efforts.” Reserve Component CRS Report at

8–9 & nn.32–33 (emphasis in original). In these

emergencies, the Reserve Components were able to

offer their unique skills to increase operational

efficiency. During the COVID-19 pandemic, for

example, the military asked for “volunteer[s]” with

“specialized skills in the medical field, in logistics, and

in command and control.” Air Reserve Personnel

Center, In order to preserve the nation’s combat

readiness, http://tinyurl.com/337w8p2j (last visited

Feb. 26, 2024).

The Federal Circuit’s atextual

exclusion of voluntary mobilizations from the

differential-pay statute will inhibit the Government’s

ability to marshal specialized personnel in future

emergencies.

This Court should grant the Petition in Feliciano

to correct the Federal Circuit’s legal error and to undo

that error’s damage to the military’s operational

readiness.

CONCLUSION

The petition for a writ of certiorari in Feliciano

should be granted.

Respectfully submitted.