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

Supreme Court briefAug 26, 2024

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No. 23-861

IN THE

Supreme Court of the United States

NICK FELICIANO,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF OF THE RESERVE ORGANIZATION OF

AMERICA AS AMICUS CURIAE SUPPORTING

PETITIONER

SCOTT A. FELDER

Counsel of Record

BOYD GARRIOTT

LUKMAN AZEEZ

WESLEY E. WEEKS

KAHLIL H. EPPS

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 To Ensure Military Effectiveness. 4

B. Congress Enacted The Differential-Pay

Statute To Ensure Military Effectiveness. 7

C. The Differential-Pay Statute Protects

Reservists And Helps The Military Achieve

Its Objectives. ............................................. 9

II. The Statute Requires Differential Pay Under

Any Provision Of Law During A National

Emergency. ....................................................... 12

III. The Pro-Servicemember Canon Confirms The

Statute Requires Differential Pay Under Any

Provision Of Law During A National

Emergency. ....................................................... 16

CONCLUSION ....................................................... 20

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. DHS,

3 F.4th 1375 (Fed. Cir. 2021)......................... 13, 14

Alabama Power Co. v. Davis,

431 U.S. 581 (1977) .............................................. 18

Biden v. Nebraska,

143 S. Ct. 2355 (2023) .......................................... 16

Boone v. Lightner,

319 U.S. 561 (1943) .................................. 16, 17, 18

Fischer v. United States,

144 S. Ct. 2176 (2024) .......................................... 12

Fishgold v. Sullivan Drydock & Repair

Corp.,

328 U.S. 275 (1946) .............................................. 18

Flynn v. Department of State,

No. 2022-1220, 2023 WL 3449169

(Fed. Cir. May 15, 2023) ...................................... 13

Henderson ex rel. Henderson v.

Shinseki,

562 U.S. 428 (2011) ........................................ 16, 18

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) .................................. 16, 18, 19

Kisor v. McDonough,

995 F.3d 1347 (Fed. Cir. 2021) ............................ 17

iii

Monroe v. Standard Oil Co.,

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

Rudisill v. McDonough,

601 U.S. 294 (2024) ........................................ 16, 18

Torres v. Texas Department of Public

Safety,

597 U.S. 580 (2022) ...................................... 4, 5, 12

United States v. Oregon,

366 U.S. 643 (1961) .............................................. 17

Walton v. Cotton,

60 U.S. 355 (1856) ................................................ 17

Statutes

5 U.S.C. § 5538 .................................................. 2, 9, 12

10 U.S.C. § 101 .................................................... 12, 14

38 U.S.C. § 4311 ........................................................ 14

50 U.S.C. § 3815 ........................................................ 15

Act of September 29, 1789, 1 Stat. 95 ...................... 16

Omnibus Appropriations Act, Pub. L.

No. 111-8, 123 Stat. 524 (2009) ............................. 9

Selective Service Act of 1948, Pub. L.

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

Selective Training and Service Act of

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

885 (1940) ............................................................... 5

Uniformed Services Employment and

Reemployment Rights Act of 1994,

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

(1994) .................................................................. 5, 6

Vietnam Era Veterans’ Readjustment

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

88 Stat. 1578 (1974) ............................................... 6

Legislative Materials

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

147 Cong. Rec. S13148 (2001) ..................................... 7

147 Cong. Rec. S13294 (2001) ................................. 7, 8

149 Cong. Rec. S3517 (2003) ....................................... 8

H.R. Rep. No. 103-65 (1993)...................................... 18

H.R. Rep. No. 108-683 (2004).................................... 18

Reservists Pay Security Act of 2001,

H.R. 3337, 107th Cong. .......................................... 7

Reservists Pay Security Act of 2001, S.

1818, 107th Cong. .................................................. 7

Reservists Pay Security Act of 2004, S.

593, 108th Cong. (2003) ......................................... 8

S. Rep. No. 103-158 (1993) ........................................ 18

S. Rep. No. 108-409 (2004) .......................................... 8

Administrative Materials

Continuation of the National

Emergency With Respect to Certain

Terrorist Attacks, 88 Fed. Reg.

62,433 (Sept. 7, 2023)........................................... 13

Department of Defense, Comprehensive

Review of the Future Role of the

Reserve Component, Vol. 1 (Apr. 5,

2011) ..................................................................... 12

Department of Defense, Dir. 1200.17,

Managing the Reserve Components

as an Operational Force (Oct. 29,

2008) ....................................................................... 9

Department of Defense, Office of People

Analytics, 2020 Status of Forces

Survey Reserve Component Members

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

https://tinyurl.com/4fdv5s4z ................................ 10

Department of Defense, 2022

Demographics Profile of the Military

Community (2023),

http://tinyurl.com/2hv3vmrs ................................ 10

National Veterans and Military

Families Month, Proclamation No.

10668, 88 Fed. Reg. 75,473 (Oct. 31,

2023) ..................................................................... 15

Presidential Statement on Signing Pub.

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

PRES. DOC. (Aug. 17, 1968) .................................... 6

Screening the Ready Reserve, Final

Rule, 86 Fed. Reg. 60,166 (2021) ......................... 10

Servicemembers’ Group Life Insurance

Traumatic Injury Protection,

Proposed Rule, 85 Fed. Reg. 50,973

(2020) .................................................................... 19

Uniformed Services Employment and

Reemployment Rights Act of 1994,

Final Rule, 64 Fed. Reg. 54,507

(1999) .................................................................... 19

Other Authorities

Air Reserve Personnel Center, In order

to preserve the nation’s combat

readiness,

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

visited Aug. 25, 2024) .......................................... 15

Brad McNally et al., Now is the time to

save the all-volunteer force,

Brookings (Jan. 19, 2023),

http://tinyurl.com/e4mre7uy ................................ 10

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 .............................. 10

vii

Lawrence Kapp et al., Cong. Rsch.

Serv., Reserve Component Personnel

Issues: Questions and Answers

(updated Nov. 2, 2021),

http://tinyurl.com/5n7kf9kd......................... 8, 9, 15

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 ................................. 11

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 .................................. 9

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. That

outcome is contrary to the text, structure, and purpose

of Congress’s differential-pay scheme.

The Court should reverse the Federal Circuit’s

interpretive error.

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.

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 Petitioner, federal civilian employees. They

are united not only by their undying commitment 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 decision below undermines 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

relies on a vague (and demonstrably incorrect) hunch

about the statute’s purpose that turns Congress’s

scheme on its head. Properly construed, the statute’s

text, structure, and purpose all require differential

pay for a mobilized Reservist under any provision of

law during a national emergency.

Even if the statute was ambiguous (it is not), the

pro-servicemember canon would require the same

result. That canon requires construing any ambiguity

in a servicemember-benefits statute in favor of the

servicemember. The Court has applied the proservicemember canon for more than 150 years, and

Congress has repeatedly invoked the canon when

drafting servicemember-benefits legislation.

The

canon thus independently confirms Petitioner’s

reading of the statute.

This Court should reverse the Federal Circuit to

correct its interpretive error and to properly apply

Congress’s scheme to protect and bolster our country’s

Armed Forces.

ARGUMENT

THE

DIFFERENTIAL-PAY

STATUTE

PROTECTS RESERVISTS AND BOLSTERS

THE

MILITARY’S

OPERATIONAL

READINESS.

Congress enacted the differential-pay statute not

in a vacuum, but as part of a suite of civilianemployment policies designed to protect Reservists

and bolster military effectiveness. This context shows

why the Government’s cramped interpretation of the

statute cannot stand.

A. Congress Enacted Civilian-Employment

Policies

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 (codified at 38 U.S.C. § 4301(a)(1))

(“USERRA”).

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 Training and Service

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(a)–(b), 54 Stat. 885, 890. 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

(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).

Indeed, 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 House report).

B. Congress Enacted The Differential-Pay

Statute

Ensure

Military

Effectiveness.

In the wake of the September 11, 2001 attacks on

our country, Congress considered a significant new

measure to bolster military effectiveness and

minimize disruption to Reservists’ economic

wellbeing: a differential-pay scheme. See Reservists

Pay Security Act of 2001, S. 1818, 107th Cong.;

Reservists Pay Security Act of 2001, H.R. 3337, 107th

Cong. A pair of 2001 bills sought to pay federalemployee Reservists the difference between their

military pay and their civilian pay during a

mobilization in order to offset any negative financial

consequences of service.

The bills’ proponents advocated to alleviate “the

financial burden faced by many of the men and women

who serve in the military Reserves or National

Guard.” 147 Cong. Rec. S13148 (Dec. 13, 2001)

(statement of Sen. Durbin).

With “[f]ifty-five

thousand” Reservists “activated since the attacks of

September 11th,” many “federally employed

reservists” and their families were “starting to feel the

pinch of service.” 147 Cong. Rec. S13294 (Dec. 14,

2001) (statement of Sen. Mikulski). For example, the

wife of one Reservist—“with an 8-month-old son to

care for”—had to “move in with her parents until her

husband return[ed]” due to a “$50,000” drop in “family

income.” Ibid. The family recognized they “may be

forced to sell their home” to make ends meet. Ibid.

The bills’ sponsors deemed this situation “a travesty,”

finding it “simply wrong” that “dedicated Americans”

were “forced to leave their families financially

vulnerable at a time when they have so many other

things to worry about.” Ibid.

Congress considered the differential-pay scheme

again in 2003. See Reservists Pay Security Act of

2004, S. 593, 108th Cong. (2003). 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. S. Rep. No. 108-409, at 2, 5 (2004). Once

again, 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,” S. Rep. No. 108-409, at 2 (2004).

After these initial legislative efforts, the need for

the differential-pay scheme became even more 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. Reserve Component CRS Report at 9 n.35.

And while prior Reserve mobilizations were often

involuntary,

post-September

operations

increasingly relied 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, 2009, Pub. L. No. 111-8, § 751,

123 Stat. 524, 693–95. The statute provides that

federal employees who are “absent” from their

positions “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 salaries. 5 U.S.C. § 5538(a).

C. 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

recent years. 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 more

members in the service, both active and reserve.”

Brad McNally et al., Now is the time to save the allvolunteer 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 (SOFSR) at 16 (July 14, 2021), https://tinyurl.com/4fdv5s4z.

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, with the vast

majority maintaining civilian employment. See Dep’t

of Def., 2022 Demographics Profile of the Military

Community

(2023),

https://tinyurl.com/2hv3vmrs; Screening the Ready

Reserve, Final Rule, 86 Fed. Reg. 60,166, 60,168

(2021). 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

(Aug.

14,

2020),

http://tinyurl.com/5n929tz7.

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 STATUTE REQUIRES DIFFERENTIAL

PAY UNDER ANY PROVISION OF LAW

DURING A NATIONAL EMERGENCY.

The history and context of the differential-pay

statute counsel in favor of an interpretation that

minimizes disadvantages to federal civilian-employee

Reservists. Doing so gives effect to Congress’s policy

of “encourag[ing] service in the Armed Forces.”

Torres, 597 U.S. at 585. And because the statute “was

enacted to address the” unfairness of financially

penalizing

civilian-employee

Reservists,

interpretation that allows that unfairness to persist

would be “inconsistent with the context from which

the statute arose.” Fischer v. United States, 144 S. Ct.

2176, 2190 (2024) (cleaned up). This legislative

context independently confirms Petitioner’s reading of

the statute, but, as he notes, the Court can reach the

same result on the text alone.

Congress provided that federal employees are

entitled to differential pay when they are absent

“pursuant to a call or order to active duty under,” 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.” 5 U.S.C.

§ 5538(a); 10 U.S.C. § 101(a)(13)(B) (emphasis added).

The plain meaning of the 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 (Sept. 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 has rejected this

straightforward statutory text in a series of cases that

rely on misguided policy preferences. In Adams v.

DHS, 3 F.4th 1375 (Fed. Cir. 2021), that court 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 Flynn v.

Department 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. And in the case at hand,

the Federal Circuit used its flawed interpretation 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.” Pet. App. 2a. In the

Federal Circuit’s opinion, this “voluntary, active

service” was not sufficiently connected to “the ongoing

national emergency.” Pet. App. 4a.

As Petitioner persuasively explains, 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. That “connection” requirement

must be rejected because it appears nowhere in the

statute.

But that is not the Federal Circuit’s only error.

The Federal Circuit has also implied a distinction

between voluntary and involuntary mobilizations. In

Adams, it suggested 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 3 F.4th at 1380. But the

statutory text provides differential pay for all service

“during a national emergency.”

10 U.S.C.

§ 101(a)(13)(B). Thus, failing to provide differential

pay to any servicemember that “has performed …

uniformed service” is unlawful under USERRA. See

38 U.S.C. § 4311(a); Adams, 3 F.4th at 1377–78.

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 all-hands-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,” National Veterans and Military

Families Month, 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. The law’s own sponsors have

explained that the Federal Circuit’s decision

“frustrate[s] the intent of Congress.” See Mem. of

Congress Cert. Br. 10. And 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

Aug. 25, 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 thus reverse the Federal

Circuit’s interpretation because it is inconsistent with

the text, structure, and purpose of the differential-pay

statute.

III. THE

PRO-SERVICEMEMBER

CANON

CONFIRMS THE STATUTE REQUIRES

DIFFERENTIAL

PAY

UNDER

ANY

PROVISION OF LAW DURING A NATIONAL

EMERGENCY.

Because “the statute is clear,” the Court should

reverse the Federal Circuit’s decision “based on

statutory text alone.” Rudisill v. McDonough, 601

U.S. 294, 314 (2024). But even “[i]f the statute were

ambiguous,” ibid., the result would be the same under

“the canon that provisions for benefits to members of

the Armed Services are to be construed in the

beneficiaries’ favor.”2 Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 441 (2011).

Like all substantive canons, the proservicemember canon “ha[s] a long historical

pedigree.” See Biden v. Nebraska, 143 S. Ct. 2355,

2377 (2023) (Barrett, J., concurring). “Congress” has

“long” shown special “solicitude … for veterans.”

Henderson, 562 U.S. at 440. As far back as 1789, it

guaranteed “military pensions” to soldiers “who were

wounded and disabled” in the “late war.” Act of

The Court has at times referred to this canon as the “proveteran canon.” Rusidisill, 601 U.S. at 314. Although the canon

does protect veterans, it also protects parties “in military

service.” Boone v. Lightner, 319 U.S. 561, 561, 575 (1943); see

also King v. St. Vincent’s Hosp., 502 U.S. 215, 216–17, 221 n.9

(1991). To avoid confusion about the canon’s scope, this brief

uses the term “pro-servicemember canon.”

September 29, 1789, ch. 24, § 1, 1 Stat. 95. And in the

centuries since, Congress has enacted a “pattern of

legislation,” United States v. Oregon, 366 U.S. 643,

647 (1961), designed “to protect those who have been

obliged to drop their own affairs to take up the

burdens of the nation.” Boone v. Lightner, 319 U.S.

561, 575 (1943); see supra Section I.

To respect Congress’s special solicitude for

servicemembers, this Court has employed the proservicemember canon for at least 168 years. In

Walton v. Cotton, 60 U.S. 355 (1856), this Court

construed the meaning of a statute that “provid[ed] for

the relief of certain surviving officers of the

Revolution.” Id. at 355. The issue was whether “the

word children in the act[ ] embrace[d] the

grandchildren of a deceased pensioner.” Ibid. The

Court rejected the apparent textual answer and

instead held that “children” included “grandchildren.”

Id. at 358. The Court reasoned that a contrary result

would “stop short of carrying out the humane motive

of Congress” to show its “national gratitude” to “a

class of men who suffered in the military service by

the hardships they endured and the dangers they

encountered.” Ibid. It thus “construed” the statute

“to carry out” Congress’s “benign policy” to care for

veterans of the Revolutionary War.3 Ibid.

Since Walton, this Court has repeatedly invoked

the pro-servicemember canon. In Boone v. Lightner,

319 U.S. 561 (1943), the Court held that a veteransbenefits statute “is always to be liberally construed.”

Apparently overlooking Walton, some jurists have erroneously

traced the canon’s origins to 1943. See, e.g., Kisor v. McDonough,

995 F.3d 1347, 1350 (Fed. Cir. 2021) (Prost, C.J., concurring).

Id. at 575. In Fishgold v. Sullivan Drydock & Repair

Corp., 328 U.S. 275 (1946), the Court held that

“legislation is to be liberally construed for the benefit

of those who left private life to serve their country in

its hour of great need.” Id. at 285. In Alabama Power

Co. v. Davis, 431 U.S. 581 (1977), the Court referred

to the pro-servicemember canon as a “guiding

principle.” Id. at 584. In King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991), the Court explained that it would

have used “the canon” to construe a veterans-benefits

statute “in the beneficiaries’ favor” if the statute had

been ambiguous. Id. at 220 n.9. In Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 441 (2011) the

Court refused to find that a deadline was

jurisdictional “in light of this canon.” Id. at 441. And

last term in Rudisill v. McDonough, 601 U.S. 294

(2024), this Court reaffirmed that it applies “the proveteran canon” where statutory text is “ambiguous.”

Id. at 314.

Congress has expressly relied on the canon when

passing legislation.

When it enacted USERRA,

Congress “stresse[d] its intention that the extensive

body of case law” applying the pro-servicemember

canon “would remain in full force and effect.” S. Rep.

No. 103-158 at 40 (1993); see also H.R. Rep. No. 10365, pt. 1, at 19 (same). It cited this Court’s opinions

in Fishgold and Alabama Power Co. for the “basic

principle” that servicemembers’ “reemployment rights

are to be ‘liberally construed.’” S. Rep. No. 103-158 at

40 (1993). And in 2004, when considering the

Servicemembers and Veterans Legal Protections Act,

Congress was aware of the “principle[ ] laid down by

the United States Supreme Court” that a

servicemember-benefits statute “is to be construed

liberally.” H.R. Rep. No. 108-683, at 40–41 (2004).

This Court has thus been correct to “presume

congressional understanding of” this “interpretive

principle[ ].” King, 502 U.S. at 220 n.9.

The Executive has also used the proservicemember canon as an interpretive guide. The

Merits Systems Protection Board cited Fishgold’s

instruction—to “constru[e] broadly” servicememberbenefits

statutes—for the proposition “that

application of a time limitation to Federal employees’

USERRA claims would be inconsistent with

congressional

intent.”

Uniformed

Services

Employment and Reemployment Rights Act of 1994,

Final Rule, 64 Fed. Reg. 54,507, 54,508 (1999). The

Department of Veterans Affairs also cited the

“Supreme Court” decisions “liberally construing”

servicemember-benefits statutes as a reason to favor

a “benefit of the doubt evidentiary standard for

adjudication of [Servicemembers’ Group Life

Insurance Traumatic Injury Protection] claims.” See

Servicemembers’ Group Life Insurance Traumatic

Injury Protection, Proposed Rule, 85 Fed. Reg. 50,973,

50,976 (2020). Accordingly, all three branches of

Government have long recognized and relied upon the

pro-servicemember canon.

Thus, to the extent this Court finds any ambiguity

in the differential-pay statute, it should construe the

ambiguity in Petitioner’s favor.

CONCLUSION

The Court should reverse.

Respectfully submitted.