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

No. 23-861

In the Supreme Court of the United States

NICK FELICIANO, PETITIONER

v.

DEPARTMENT OF TRANSPORTATION, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR TEXAS, SOUTH CAROLINA, 19 OTHER

STATES, AND THE DISTRICT OF COLUMBIA AS

AMICI CURIAE IN SUPPORT OF PETITIONER

ALAN WILSON

Attorney General

KEN PAXTON

Attorney General of Texas

ROBERT D. COOK

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

J. EMORY SMITH, JR.

Deputy Solicitor General

THOMAS T. HYDRICK

Assistant Deputy Solicitor

General

JOSEPH D. SPATE

Assistant Deputy Solicitor

General

OFFICE OF THE SOUTH

CAROLINA ATTORNEY

GENERAL

1000 Assembly Street

Columbia, SC 29201

AARON L. NIELSON

Solicitor General

Counsel of Record

KYLE D. HIGHFUL

Assistant Solicitor General

J. ANDREW MACKENZIE

Assistant Attorney General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

TA BLE O F C O NTE N TS

Page

Table of Authorities ......................................................... II

Interest of Amici Curiae................................................... 1

Summary of Argument ..................................................... 1

Argument........................................................................... 4

I. The Differential-Pay Statute’s Text Controls..... 4

A. The statute’s language is clear. ...................... 4

B. The Federal Circuit misread section 5538’s

cross-reference. ............................................... 6

C. The federal government’s idiosyncratic

reading of the term “during” defies context

and common sense. ........................................ 12

II. Context and common sense confirm that section

5538 benefits all reservists activated during a

war or national emergency. ................................ 17

A. Supporting roles are as necessary to the

national defense as direct involvement. ....... 17

B. The Federal Circuit’s atextual interpretation

threatens to harm not only the personal lives

of reservists but also our national defense. . 19

Conclusion ....................................................................... 25

(I)

II

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Adams v. Dep’t of Homeland Sec.,

3 F.4th 1375 (Fed. Cir. 2021)......................... 6, 7, 11, 23

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) ......................................................... 8

Barnhart v. Sigmon Coal Co., Inc.,

534 U.S. 438 (2002) ....................................................... 10

Bartenwerfer v. Buckley,

598 U.S. 69 (2023) ........................................................... 4

Biden v. Nebraska,

143 S.Ct. 2355 (2023) .................................................... 15

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ....................................................... 10

Nordby v. SSA,

67 F.4th 1170 (Fed. Cir. 2023)................................. 6, 11

United States v. Ressam,

553 U.S. 272 (2008) ....................................................... 14

United States v. Turkette,

452 U.S. 576 (1981) ......................................................... 8

Van Buren v. United States,

593 U.S. 374 (2021) ......................................................... 4

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ....................................................... 10

Statutes:

5 U.S.C.:

§5538 ................................................................. 1-3, 16, 20

§5538(a) ................................................................ 2, 3, 5-7

III

Statutes (Ctd.)

10 U.S.C.:

§101(a) ......................................................................... 5, 6

§101(a)(13) ....................................................................... 6

§101(a)(13)(B) ........................................ 2, 3, 5-12, 15, 16

§252 ........................................................................... 10-12

§688 ............................................................................ 5, 11

§688(c) ............................................................................ 11

§12301(a) ................................................................... 5, 11

§12302 .............................................................................. 5

§12304 ........................................................................ 5, 11

§12304a ................................................................. 5, 10-12

§12304b ............................................................................ 5

§12305 .................................................................. 5, 11, 12

§12406 ........................................................................ 5, 11

14 U.S.C. §3713 .......................................................... 5, 10-12

30 R.I. Gen. Laws Ann. §30-6-5(a) .................................... 21

Ala. Code §31-12-5 .............................................................. 21

Alaska Stat. §39.20.345 ...................................................... 21

Conn. Gen. Stat. §7-461 ..................................................... 21

Del. Code:

tit. 14, §1327(b) ............................................................. 21

tit. 29, §5105(b) ............................................................. 21

Md. Code, State Pers. & Pens. §9-107(d)(1) .................... 21

Mich. Comp. Laws §32.273a .............................................. 21

Okla. Stat. tit. 72, §48 ......................................................... 21

Tex. Gov’t Code §661.9041(a) ............................................ 21

Wis. Stat. §230.315(1) ......................................................... 21

Miscellaneous:

4 The Oxford English Dictionary

(2d ed. 1989) ............................................................. 12-14

IV

Misc. (Ctd.)

The American Heritage Dictionary of the

English Language (5th ed. 2011) ............................... 13

Andrew P. Sparks, From the Desert to the

Courtroom: The Uniformed Services

Employment and Reemployment Rights

Act, 61 HASTINGS L.J. 773 (2010) ............................... 22

Antonin Scalia & Bryan A. Garner,

READING LAW: THE INTERPRETATION

OF LEGAL TEXTS (2012) ............................................. 8, 9

Br. for Members of Congress as Amici

Curiae in Support of Petitioner, Adams

v. Dep’t of Homeland Sec., 142 S.Ct.

2835 (2022) (No. 21-1134), 2022 WL

845883 ...................................................................... 20, 21

Brendan W. McGarry & Emily M.

Morgenstern, Cong. Rsch. Serv., R44519,

Overseas Contingency Operations

Funding: Background and Status (Sept. 6,

2019), http://tinyurl.com/R44519 ................................ 18

Comm’n on the Nat’l Guard & Rsrvs.,

Final Report to Congress and the

Secretary of Defense (Jan. 31, 2008),

https://perma.cc/3S3Z-KKUW ................................... 21

Dep’t of Def., Financial Management

Regulation, Contingency Operations,

vol.12, ch.23 (Dec. 2017) ............................................... 18

Doug G. Ware, National Guard Struggles

to Attract Recruits as Private Sector

Offers Tough Competition for Talent,

STARS AND STRIPES (Jun. 21, 2023),

https://perma.cc/G9L7-VNVM ............................. 22, 23

V

Misc. (Ctd.)

Governor James E. McGreevey, Executive

Order #50 (2003), https://nj.gov/

infobank/circular/eom50.htm ...................................... 21

Kathryn Roe Coker, The Indispensable

Force: The Post-Cold War Operational

Army Reserve (2013), http://tinyurl.com/

coker2013 ...................................................................... 17

Lawrence Kapp & Barbara Torreon, Cong.

Rsch. Serv., RL30802, Reserve

Component Personnel Issues: Questions

and Answers (2021 update), https://

crsreports.congress.gov/product/pdf/RL/

RL30802 ............................................................ 19, 20, 22

Major Jeremy R. Bedford, Armed Forces

Mobilizations Under 10 U.S.C.

§ 12301(d) and Federal Employees:

Why OPM Guidance Is Incorrect, 42

CAMPBELL L. REV. 1 (2020) ........................................ 23

Major Michele A. Forte, Reemployment

Rights for the Guard and Reserve: Will

Civilian Employers Pay the Price for

National Defense? AIR FORCE L. REV.

287 (2007) ...................................................................... 17

Mil. State Pol’y Source, South Carolina,

https://statepolicy.militaryonesource.

mil/state/SC .................................................................. 22

Mil. State Pol’y Source, Texas,

https://statepolicy.militaryonesource.

mil/state/TX .................................................................. 22

Ryan Wedlund, Citizen Soldiers Fighting

Terrorism: Reservists’ Reemployment Rights,

30 WM. MITCHELL L. REV. 797 (2004) ....................... 20

VI

Misc. (Ctd.)

South Carolina National Guard to help

hospitals due to coronavirus surge,

WLTX (Sept. 3, 2021), https://perma.cc/

FRT2-3KGX ................................................................. 20

U.S. Army Materiel Command, Army

Materiel Command White Paper:

Sustaining Army 2030 (Oct. 1, 2023),

http://tinyurl.com/army2030 ........................... 15, 16, 18

U.S. Army Reserve COVID-19 Response,

DVIDS, https://perma.cc/3P84-ZLJM ....................... 20

U.S. Dep’t of Def., 2022 Demographics:

Profile of the Military Community at

179, http://tinyurl.com/dod2022report ....................... 22

Webster’s Third New International Dictionary of

the English Language (1986) ...................................... 13

INTE RE ST O F A MIC I C U RI AE

Amici curiae are home to tens of thousands of reservists who play a vital role in their local communities, as

well as across the nation and the globe. Federal law entitles such reservists who are also employed by the federal government as civilians to differential pay while

they serve in active duty during a war or national emergency. Because the U.S. Court of Appeals for the Federal Circuit has denied Petitioner Nick Feliciano and

other reservists the statutory benefits they have earned,

this case implicates Amici’s interests. 1

SU M MA RY O F A RGU ME NT

Reservists play a key role in our national defense.

Differential pay—that is to say, pay that makes up the

difference between a reservist’s civilian salary and

active-duty pay—gives reservists some financial security

while they protect the physical security of all Americans.

Yet for several years now, the Federal Circuit has issued

a string of opinions denying differential pay to reservists

just because they did not serve directly in a contingency

operation. Neither text, context, nor common sense

supports that rule. Instead, each confirms that a

reservist called to active duty during a war or declared

national emergency is entitled to differential pay.

I. The Federal Circuit and the federal government

each has its own theory as to why Feliciano is not entitled

to differential pay under 5 U.S.C. §5538. The court of

appeals requires a reservist to show that he has been

called to active duty that meets the statutory definition

of a “contingency operation” to receive differential pay.

By contrast, the federal government argues that a

No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily

to its preparation or submission.

1

(1)

2

reservist is entitled to differential pay only if his active

duty service has some (undefined) connection beyond a

temporal overlap to a war or declared national

emergency. Both are mistaken. The statute

unambiguously allows a reservist who is called to active

duty during a war or declared national emergency to

receive differential pay from his federal civilian

employer, regardless of the precise duties he will be

performing.

The Federal Circuit misunderstood the connection

between 5 U.S.C. §5538 (the differential-pay statute) and

10 U.S.C. §101(a)(13)(B), which it cross-references.

Although section 101(a)(13)(B) defines “contingency

operation,” section 5538(a) merely incorporates by

reference “provision[s] of law referred to in section

101(a)(13)(B).” Section 5538(a) thus does not require that

a reservist serve in a contingency operation to receive

differential pay because the provisions of law referred to

in section 101(a)(13)(B) do not. In particular, Petitioner

Feliciano falls under that section’s catchall provision,

which sweeps in any lawful call or order to active duty

during a war or declared national emergency.

The Federal Circuit also erred with respect to the

ejusdem generis canon. That canon is irrelevant here

because the statute is unambiguous. And even if the

canon were relevant, the Federal Circuit misapplied it.

The common thread running through the provisions

enumerated in section 101(a)(13)(B) is not that they

involve service directly in a contingency operation, but

rather that they involve augmenting military capabilities

in response to a national crisis. Feliciano’s voluntary

activation during a war or national emergency plainly

falls within that category.

3

The federal government does not defend the Federal

Circuit’s reasoning. Instead, it asks the Court to adopt

an idiosyncratic reading of the term “during” that

implies more than temporal overlap. But no definition of

the term “during” requires the substantive connection

that the government argues for, and the context of the

differential-pay statute does not support it. The

differential-pay statute promises to provide financial

security to those activated under “any . . . provision of

law during a war or during a national emergency.” 10

U.S.C. §101(a)(13)(B). No rule of common sense or

common experience supports an inference that this

language ties differential pay to anything more than

contemporaneouty between a reservist’s activation

orders and a war or national emergency. This is not a

situation—as with an inquiry about an attorney’s

argument “during” a court hearig—in which context

suggests that the speaker’s use of the term “during” is

both temporally (the speaker wants to know about

something that happened at the time of the hearng) and

substantively (the speaker wants to know what was said

at the hearing) limiting.

The federal government also confuses an activation

order with the active-duty service that activation order

precipitates. The differential-pay statute is keyed to the

former, not the latter. See 5 U.S.C. §5538(a) (entitling a

federal civilian employee to differential pay “who is

absent from a position of employment with the Federal

Government in order to perform active duty service in

the uniformed services pursuant to a call or order to

active duty under” identified statutory provisions).

II. The nature of the modern military gives

important context to the text of section 5538. Today’s

armed forces are engaged in long-term, worldwide

4

security operations that require immense logistical support. Whenever a servicemember leaves his or her normal post to serve on the front lines, someone must take

that servicemember’s place. And that person may be a

reservist. That is why getting the answer right in this

case is so important. Denying reservists the benefits

they have earned makes it difficult to recruit and retain

dedicated and talented people. The Federal Circuit’s decision and the federal government’s arguments thus

threaten both the livelihood of reservists and our national defense.

ARGU ME N T

I. The Differential-Pay Statute’s Text Controls.

The Court can and should resolve this case based on

statutory language alone. Congress clearly provided that

reservists must receive differential pay from their federal civilian employers whenever they are called or ordered to active duty during a war or declared national

emergency, regardless of the precise role they will play.

The Federal Circuit’s contrary test is wrong, as is the

federal government’s.

A. The statute’s language is clear.

“We start where we always do: with the text of the

statute.” Bartenwerfer v. Buckley, 598 U.S. 69, 74 (2023)

(quoting Van Buren v. United States, 593 U.S. 374, 381

(2021)) (alterations omitted). The differential-pay statute

provides that:

[1] An employee who is absent from a position of

employment with the Federal Government

[2] in order to perform active duty in the uniformed services

[3] pursuant to a call or order to active duty under

5

[a] section 12304b of title 10 or

[b] a provision of law referred to in section

101(a)(13)(B) of title 10

shall be entitled, while serving on active duty, to

receive [differential pay].

5 U.S.C. §5538(a). In short, a federal civilian employee is

entitled to differential pay if called to serve under identified Title 10 authorities, including “a provision of law

referred to in section 101(a)(13)(B).” Id.

Section 101(a)(13)(B), in turn, contains one half of the

statutory definition of the term “contingency operation.”

The entirety of the definition reads:

(13) The term “contingency operation” means a

military operation that—

(A) is designated by the Secretary of Defense as

an operation in which members of the armed

forces are or may become involved in military actions, operations, or hostilities against enemies of

the United States or against an opposing military

force; or

(B) results in a call or order to, or retention on,

active duty of members of the uniformed services

under section 688, 12301(a), 12302, 12304,

12304(a), 12305, or 12406 of this title, chapter 13

of this title, section 3713 of title 14, 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).

Putting the two statutes together, then, an activated

federal civilian employee is entitled to differential pay if

called to active duty under “[the enumerated provisions

6

of sub-part B] or any other provision of law during a war

or during a national emergency declared by the President or Congress.” Id.

That straightforward textual analysis controls here.

Feliciano is a federal civilian employee called to active

duty under a “provision of law during a war or during a

national emergency.” Id. As such, he was “absent from a

position of employment with the Federal Government in

order to perform active duty in the uniformed services

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.” 5 U.S.C. §5538(a). He thus “shall be entitled” to differential pay. Id.

The Federal Circuit and the federal government each

offer alternative, albeit very different, theories for why

the text is not so straightforward. Neither holds up.

B. The Federal Circuit misread section 5538’s

cross-reference.

According to the Federal Circuit, a federal civilian

employee “must have served pursuant to a call to active

duty that meets the statutory definition of contingency

operation” to receive differential pay. Adams v. Dep’t of

Homeland Sec., 3 F.4th 1375, 1377, 1378 (Fed. Cir. 2021);

accord Nordby v. SSA, 67 F.4th 1170, 1173 (Fed. Cir.

2023). Not so.

1. To begin, the Federal Circuit conflates a military

operation with a call to active service. “The term ‘contingency operation’ means a military operation.” 10 U.S.C.

§101(a)(13). A military operation is not the same thing as

the activation orders that supply manpower for that operation. And the differential-pay statute ties differential

pay to the latter, not the former.

7

Congress could very easily have written the differential-pay statute to benefit those absent from their federal

civilian jobs “pursuant to a call or order to active duty in

a contingency operation.” But that’s not the statute Congress wrote. It provided differential pay for reservists

“call[ed] or order[ed] to active duty under . . . a provision

of law referred to in” one half of the statutory definition

of “contingency operation.” 5 U.S.C. §5538(a) (emphasis

added). Appropriately, then, all of the referenced provisions are activation authorities. They are statutory provisions under which a reservist could be “call[ed] or order[ed] to, or retain[ed] on, active duty.” 10 U.S.C. §101

(a)(13)(B). None requires service in a contingency operation.

2. The Federal Circuit’s rule also depends on an

erroneous application of the ejusdem generis principle to

limit section 101(a)(13)(B)’s general term—“or any other

provision of law during a war or during a national

emergency”—to include only those provisions that have

“a connection to the declared national emergency.”

Adams, 3 F.4th at 1379–80. But ejusdem generis has no

application when, as here, a statute’s meaning is plain.

Even if ejusdem generis applied, the Federal Circuit

failed to identify the trait common to each of the

specifically enumerated provisions preceding the

general term Petitioner relies on. Indeed, several of the

enumerated provisions do not even mention direct

involvement in an ongoing emergency. Attending to the

text’s subject and purpose, an ordinary English speaker

would understand the enumerated provisions to be

linked by a precipitating emergency that strains existing

military capacity and necessitates the activation of

reserve forces—whether to serve in a direct or

supporting role. That link is confirmed by the general

8

term’s own qualifier, which identifies the circumstances

under which differential pay should be awarded to

include calls to active duty under “any other provision of

the 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).

3. This Court has consistently disavowed

“wooden[]” application of ejusdem generis “every time

Congress includes a specific example along with a general phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

227 (2008). As a tool for resolving textual ambiguity, the

canon instead “comes into play only when there is some

uncertainty as to the meaning of a particular clause or

statute.” United States v. Turkette, 452 U.S. 576, 581

(1981). Least of all should it be used to “create ambiguity

where the statute’s text and structure suggest none.”

Ali, 552 U.S. at 227.

These principles should have stopped the Federal

Circuit from applying ejusdem generis here. The

differential-pay statute directly addresses the very

questions that—when textually uncertain—the ejusdem

generis canon is designed to resolve.

Ejusdem generis flows from two gap-filling semantic

intuitions. The first is that when a general term follows

specific terms falling within a shared category, the

speaker very likely had that category in mind. Antonin

Scalia & Bryan A. Garner, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 199 (2012). Thus,

“[i]f one speaks of ‘Mickey Mantle, Rocky Marciano,

Michael Jordan, and other great competitors,’ the last

noun does not reasonably refer to Sam Walton (a great

competitor in the marketplace) or Napoleon Bonaparte

(a great competitor on the battlefield). It refers to other

great athletes.” Id.

9

That intuition is not needed here because, sticking

with the analogy, section 101(a)(13)(B) does not stop at

“other great competitors.” Id. It expresses its intended

qualifier expressly, textually clarifying the scope of the

category Congress had in mind for its general term.

Congress did not state merely that differential pay

should be granted to reservists activated under “any

other provision of law.” It chose instead to specify that

differential pay should be granted to reservists activated

under “any other provision of law during a war or

during a national emergency declared by the President

or Congress.” Id. (emphasis added).

The second semantic intuition underlying ejusdem

generis is that “when the tagalong term is given its

broadest application, it renders the prior enumeration

superfluous.” Reading Law, supra, at 199–200. To avoid

superfluity, then, courts give “the enumeration the effect

of limiting the general phrase.” Id. at 200. If, for

example, a will devises to a particular person “‘my

furniture, clothes, cooking utensils, housewares, motor

vehicles, and all other property’ . . . almost any court will

construe the last phrase to include only personalty and

not real estate.” Id. at 199. After all, “[i]f the testator

really wished the devisee to receive all his property, he

could simply have said ‘all my property.’” Id. at 200.

Again, resort to this intuition is unnecessary here

because reading section 101(a)(13)(B)’s catchall term

broadly would not render its specific terms superfluous.

While calls to active duty under the enumerated

provisions apply in both peacetime and wartime, the

catchall term applies only “during a war or during a

national emergency declared by the President or

Congress.” 10 U.S.C. §101(a)(13)(B).

10

Congress has thus made a deliberate choice to

provide differential pay in a narrow set of specified

exigent circumstances—such as when a state governor

requests assistance to respond to a major disaster, id.

§12304a, a rebellion makes it impracticable to enforce

the laws, id. §252, or a natural disaster is imminent,

14 U.S.C. §3713—regardless of whether the nation is at

war or in the throes of a declared national emergency.

But when the nation is at war or in a declared state of

national emergency, any lawful activation qualifies.

In short, the Federal Circuit’s precedent narrowing

the circumstances in which activated reservists qualify

for differential pay departs from—rather than heeds—

the plain meaning of section 101(a)(13)(B) by drawing

unbidden inferences to answer questions already

answered by the statute’s plain text. That precedent

should be corrected. The most fundamental of all

semantic intuitions—the one lying at the heart of all

semantic canons—is that “a legislature says in a statute

what it means and means in a statute what it says there.”

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461–62

(2002) (quoting Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253–54 (1992)). “It is one thing to draw an intention

of Congress from general language and to say that

Congress would have explicitly written what is inferred.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

609 (1952) (Frankfurter, J., concurring). But “when

Congress did specifically address itself to a problem,”

courts should not “find secreted in the interstices of

legislation” a different answer from the one Congress

expressly provided. Id. “When the words of a statute are

unambiguous, then, [the] first canon is also the last:

judicial inquiry is complete.” Barnhart, 534 U.S. at 462.

11

4. Even assuming ejusdem generis had something to

contribute here, the Federal Circuit did not identify a

trait common to all the enumerated provisions. It held

that “to satisfy as ‘any other provision of law [during a

war or during a national emergency]’ under

10 U.S.C. § 101(a)(13)(B) and qualify as a contingency

operation, there must be a connection between the voluntary military service and the declared national emergency.” Nordby, 67 F.4th at 1173. But the Federal Circuit, perhaps because it treated the differential-pay statute as being keyed to the nature of a reservist’s service

rather than the nature of his call to service, did not deem

a “temporal overlap” enough. Id. at 1174; see also

10 U.S.C. §101(a)(13)(B) (referring to “any other provision of law during a war or during a national emergency”

(emphasis added)).

The problem with that theory is that the term “national emergency” does not appear in the lion’s share of

enumerated provisions. See, e.g., 10 U.S.C. §§688,

12304a, 12305, 12406, 252; 14 U.S.C. §3713. In fact,

10 U.S.C. §12304 applies precisely in times “other than

during war or national emergency.” The federal government thus conceded below that connection to a national

emergency cannot serve as the relevant link between the

enumerated provisions. See Gov’t C.A. En Banc Br.12

n.4. Adams also states that the differential-pay statute

benefits only those “directly called to serve in a contingency operation.” 3 F.4th at 1379. But, again, none of the

enumerated provisions requires that an activated reservist serve on the front lines of any operation—much less a

contingency operation.

Rather, each of the enumerated provisions is a means

for augmenting military capabilities in response to a

national crisis. The Secretary of Defense may order

12

reservists to active duty when “necessary in the interests

of national defense,” 10 U.S.C. §688(c), or for the

“duration of [a] war or emergency”—whether declared

or not—“and for six months thereafter,” id. §12301(a).

The President’s authority under 10 U.S.C. §12304 is

triggered when “necessary to augment the active

forces.” 10 U.S.C. §12304a applies when a governor

seeks federal aid in response to “a major disaster or

emergency,” while 10 U.S.C. §12305 applies when

“essential to the national security of the United States.”

10 U.S.C. §252 operates when the judicial system breaks

down and 14 U.S.C. §3713 when the nation faces “an

imminent, serious natural or manmade disaster.”

C. The federal government’s idiosyncratic

reading of the term “during” defies context

and common sense.

The federal government does not defend the Federal

Circuit’s approach. Instead, it relies on an atypical definition of the term “during” to contend that for a call to

active duty to qualify as being one made under “any

other provision of law during a war or during a national

emergency,” 10 U.S.C. §101(a)(13)(B), that call must be

to serve during and in the course of a war or national

emergency. BIO.7. This new argument fails.

1. To begin, the federal government relies on an idiosyncratic definition of the term “during” that is neither

required by the term’s ordinary meaning nor supported

by the context of the differential-pay statute.

The federal government’s own authorities demonstrate that while the term “during” always connotes a

temporal overlap, only context can create the “substantive connection” the federal government argues for.

BIO.7. The Oxford English Dictionary, for instance,

13

defines the term as “[t]hroughout the whole continuance

of; hence, in the course of, in the time of.” 4 The Oxford

English Dictionary 1134 (2d ed. 1989). Nothing about

that definition—including the phrase “in the course of”—

requires more than a temporal overlap.

To be sure, surrounding context may. See supra p.14–

15. But not necessarily, as evidenced by the federal government’s next authority. The American Heritage Dictionary, which also employs the “course of” construction,

incorporates usage examples that belie the federal government’s contention that “a substantive connection” as

well as a “temporal overlap,” BIO.7, is conveyed: “1.

Throughout the course or duration of: suffered food

shortages during the war. 2. At some time in: was born

during a blizzard.” The American Heritage Dictionary

of the English Language 556 (5th ed. 2011). Ordinary

readers of the first usage example will not infer that food

shortages were suffered only in the battlefield. Though,

in context, the reader might draw other inferences, such

as that the food shortages had in some sense been caused

by “the war.” Id. (emphasis added). In the second definition, the temporal connection alone is warranted. Only

the most atypical of the second definition’s readers would

image that it describes a birth taking place in, or occasioned by, the snow.

Webster’s Third International Dictionary is likewise

devoid of any suggestion that a strong “substantive” as

well as a “temporal overlap,” BIO.7, is meant:

1: throughout the continuance or course of <no

attainder of treason shall work corruption of

blood or forfeiture except [during] the life of the

person attainted—U.S. Constitution>

14

2: at some point in the course of <been away for a

couple of weeks [during] the summer—J.M Barzun>

Webster’s Third New International Dictionary of the

English Language 703 (1986).

To dredge from these straightforward definitions “a

substantive connection between the object of the prepositional phrase that begins with ‘during’ and the term

that the phrase modifies,” BIO.7, the federal government is forced to rely on yet another tenuous cross-reference. It points to the Oxford English Dictionary’s definition of “in the course of” as “in the process of, during

the progress of.” 3 Oxford, supra, at 1055. That is far too

thin a reed upon which to deprive a reservist of differential pay, and it becomes more slender still once context is

considered.

2. As this Court has recognized in analogous circumstances, where “[t]he most natural reading of” the term

“during” fits the text, “[t]here is no need to consult dictionary definitions” at all. United States v. Ressam, 553

U.S. 272, 274 (2008). And here, as in Ressam, “[t]he term

‘during’ denotes a temporal link; that is surely the most

natural reading of the word as used in the statute.” Id. at

274–75.

At issue in Ressam was a sentencing enhancement

for carrying “an explosive during the commission of any

felony.” Id. at 274 (emphasis added). The Court was

asked to determine whether this enhancement applied to

a person who had explosives in his car when he committed the felony of making false statements to a customs

official, but who did not carry the explosives for the purpose of committing the predicate felony. Id. The Court

held that the temporal link alone was sufficient to trigger

15

the enhancement because a temporal link is what the

term “during” generally connotes, and because nothing

about the prohibition suggested a different usage. Id.

So too here. The differential-pay statute’s meaning

does not bid departure from the most natural reading of

“during.” This is not an instance, as is the case with the

federal government’s counterexamples, in which common experience requires us to infer “and in relation to”

after the word “during.” When a person asks about an

attorney’s argument “during” a court hearing, see BIO.7,

ambiguity about the scope of the information being solicited is reasonably resolved by common experience with

people who ask such questions. They are generally interested in what was said at the court hearing and not what

was said outside the courtroom but while the hearing was

taking place. Cf. Biden v. Nebraska, 143 S.Ct. 2355, 2379

(2023) (Barrett, J., concurring) (explaining that “how we

communicate conversationally” is relevant context for

purposes of statutory interpretation). The same is true

of a reference to what a federal government employee

learned “during” employment, BIO.8, or to industry concerns raised “during” notice and comment, id., or to the

deliberate-process privilege’s application to documents

generated “during” agency deliberations, id.

Unlike the government’s examples, the differentialpay statute draws a temporal link alone as a matter of

common sense. Congress provides differential pay to

federal civilian employees activated under “any other

provision of law during a war or during a national

emergency.” 10 U.S.C. §101(a)(13)(B). It is entirely

rational to provide a pay incentive to activated reservists

based solely on the fact that a war or national emergency

is ongoing. Supporting roles are as vital to the national

defense during such crises as direct ones. See infra,

16

Part II.A. As General John Pershing, Commander of the

American Expeditionary Forces during World War I,

observed: “Infantry wins battles, logistics wins wars.”

U.S. Army Materiel Command, Army Materiel

Command White Paper: Sustaining Army 2030 at i

(Oct. 1, 2023), http://tinyurl.com/army2030 (all websites

last visited Aug. 26, 2024).

3. The federal government’s argument that an activated reservist’s service must have some connection to a

war or a national emergency fails for the additional reason that the differential-pay statute refers to provisions

of law that authorize a call to service, not provisions defining the nature of the service to which the reservist is

called. Once again, Congress could very easily have tied

differential pay to the nature of a reservist’s service rather than the nature of a reservist’s activation orders.

But, as demonstrated above, supra, 6–7, that is not the

statute Congress enacted.

It makes little sense, moreover, to insist that an activation order—as distinct from the military operation

precipitating that order—be issued both during and in

relation to a war or national emergency to entitle a reservist to differential pay. This will involve tedious factual disputes that courts will have to resolve with necessarily arbitrary line drawing. Even then, given the vast

and varied interconnectedness of the United State military, it may often be impossible to determine whether an

order of activation is sufficiently connected to the additional strain on the military occasioned by a war or national emergency to render a call to service sufficiently

in relation to that war or national emergency. Better to

simply apply the bright-line statute Congress wrote.

This Court accordingly should hold that a temporal connection is enough for a reservist’s activation orders to

17

qualify as having issued “during a war or during a national emergency.” 10 U.S.C. §101(a)(13)(B).

II. Context and common sense confirm that section

5538 benefits all reservists activated during a war

or national emergency.

Although the Court can begin and end its analysis

with the statute’s plain text, understanding how our

modern military functions gives added confidence that

the most straightforward reading is also the best one.

“The nature of military conflict has changed from full

scale war of short duration to drawn out security, peace

keeping, interdiction and combat operations,” and

“[w]ith a shrinking active duty force and an expanding

mission, more emphasis will be placed on using guard

and reserve personnel to fulfill mission requirements.”

Major Michele A. Forte, Reemployment Rights for the

Guard and Reserve: Will Civilian Employers Pay the

Price for National Defense?, 59 AIR FORCE L. REV. 287,

342 (2007). Today’s sophisticated, global fighting force

requires substantial support. The interpretations advanced by the Federal Circuit and the federal government overlook the key role that reservists play even

when they are not on the front lines of a contingency operation. And by withholding from reservists the differential pay that Congress intended them to have, those errant interpretations threaten both reservists’ livelihoods

and the integrity of our national defense.

A. Supporting roles are as necessary to the

national defense as direct involvement.

Wars are not won by front-line acts of heroism alone.

They are won by support staff and logistics teams—

truck drivers, air traffic controllers, healthcare

administrators, and transportation officers. Troops are

18

of little use without bullets, food, bandages, and the

people that get them from point A to point B. And when

active army units deploy to contingency operations,

army reserve units must backfill installation base

operation activities previously conducted by those units.

Kathryn Roe Coker, The Indispensable Force: The PostCold War Operational Army Reserve, 1990-2010, 187

(2013), http://tinyurl.com/coker2013.

Indeed, because robust sustainment capabilities are

vital to the success of any contingency operation,

Sustaining Army 2030, supra, at 4, the Department of

Defense’s Financial Management Regulation includes

them when taking stock of contingency operation costs,

which it defines as “those expenses necessary to cover

incremental costs ‘that would not have been incurred had

the contingency operation not been supported.’”

Brendan W. McGarry & Emily M. Morgenstern, Cong.

Rsch. Serv., R44519, Overseas Contingency Operations

Funding: Background and Status 16 (Sept. 6, 2019),

http://tinyurl.com/R44519 (citing Dep’t of Def.,

Financial Management Regulation, Contingency

Operations, vol.12, ch.23 at 23–26 (Dec. 2017)). That

includes expenses arising from both combat and combat

support costs, “such as those for overseas basing, depot

maintenance, ship operations, weapons system

sustainment” as well as “readiness and munitions.” Id. at

26.

As thousands of reservists can attest, the sacrifice involved in a supporting role is very real. One does not

need to fire a single shot in battle to know the profound

sense of loss that follows separation from family and

community, interruption of career aspirations, and the

like. But that sacrifice is essential to the national defense, most especially in a time of war or national

19

emergency. That, undoubtedly, is why Congress sought

to support those who willingly embrace this sacrifice in

service to their country.

B. The Federal Circuit’s atextual interpretation

threatens to harm not only the personal lives

of reservists but also our national defense.

1. Since the founding era, the States and the nation

have relied on the services of reservists. These forces

have played a critical role in nearly every major American military conflict, ranging from the French and Indian War to the Gulf War. See Brief of Amicus Curiae

Reserve Organization of America 2.

The modern Reserves were formed in the 20th century. See Lawrence Kapp & Barbara Torreon, Cong.

Rsch. Serv., RL30802, Reserve Component Personnel

Issues: Questions and Answers 6 (2021 update), https://

crsreports.congress.gov/product/pdf/RL/RL30802. During this period, reservists were activated for service in

several major conflicts or emergencies, including the Korean War, the Cuban Missile Crisis, the Vietnam War,

and the Gulf War. See id. at 7–8.

In recent decades, the States and the nation have increasingly relied upon the service of reservists. Charles

Cragin, a former Assistant Secretary of Defense for Reserve Affairs, has observed that:

The role of our Reserve forces is changing in the

United States. We have seen their traditional role,

which was to serve as manpower replacements in

the event of some cataclysmic crisis, utterly transformed. They are no longer serving as the force of

last resort, but as vital contributors on a day-today basis around the world.

Id. at 7.

20

Reservists played a particularly prominent role in response to the September 11 terrorist attacks and the

subsequent War on Terror. As described by Secretary of

Defense Donald Rumsfeld:

Within minutes of the September 11 attacks, National Guard and Reservists responded to the call

to duty. They flew combat patrols, patrolled the

streets, and provided medical assistance, communications, and security at numerous critical sites

across the country. Perhaps the National Guard’s

most visible support to civil authorities was to

provide security at America’s airports until additional security measures could be established.

Ryan Wedlund, Citizen Soldiers Fighting Terrorism:

Reservists’ Reemployment Rights, 30 WM. MITCHELL L.

REV. 797, 801 (2004).

2. To date, over one million reservists have been voluntarily or involuntarily activated in support of the military operations that followed the September 11 attacks.

See Cong. Rsch. Serv., RL30802, supra, at 8 & n.33. By

some accounts, the mobilization of reservists following

the September 11 attacks was one of the longest ongoing

mobilizations ever. Id. at 27.

But the role of the Reserves is not limited to just military operations. Thousands of reservists were activated

in response to the COVID-19 pandemic. Id. at 9. In South

Carolina, for example, reservists and members of the

South Carolina National Guard played a critical role in

assisting overwhelmed healthcare providers during the

pandemic. See South Carolina National Guard to help

hospitals due to coronavirus surge, WLTX (Sept. 3,

2021), https://perma.cc/FRT2-3KGX. Similar stories

from around the country demonstrate the valiant service

21

of individual reservists during that difficult period. See,

e.g., U.S. Army Reserve COVID-19 Response, DVIDS,

https://perma.cc/3P84-ZLJM.

It was in recognition of their service and to induce

further service that Congress passed several laws that

extend benefits to reservists, including section 5538.

That law was “written to ensure that federal employees

in the National Guard and Reserves do not suffer a loss

of income when they are called to active military duty.”

Br. for Members of Congress as Amici Curiae in Support

of Petitioner, Adams v. Dep’t of Homeland Sec., 142

S.Ct. 2835 (2022) (No. 21-1134), 2022 WL 845883, at *4;

see also Br. of Members of Congress as Amici Curiae in

Support of Petitioner 3. The law is particularly

significant because “[t]he federal government employs

more reserve component members than any other employer in the United States.” Comm’n on the Nat’l Guard

& Rsrvs., Final Report to Congress and the Secretary of

Defense 41 (Jan. 31, 2008), https://perma.cc/3S3ZKKUW.

3. Congress is not alone in taking this type of action.

Texas, for example, provides a form of differential pay to

state employees who are called to active duty to serve in

a reserve component of the United States Armed Forces.

See, e.g., Tex. Gov’t Code §661.9041(a) (“The administrative head of a state agency shall grant sufficient emergency leave as differential pay to a state employee on unpaid military leave if the employee’s military pay is less

than the employee’s state gross pay.”). And in 2003, the

Governor of New Jersey signed an executive order

providing that “[d]uring active duty for the duration of

their activation, [] State employees shall be entitled to

receive a salary equal to the differential between the employee’s State salary and the employee’s military base

22

pay.” Governor James E. McGreevey, Executive Order

#50 (2003), https://nj.gov/infobank/circular/eom50.htm.

Other States have similar laws. 2

Differential pay is critical to reservists and their families. Approximately 40% of reservists have children. See

U.S. Dep’t of Def., 2022 Demographics: Profile of the

Military Community at 179, http://tinyurl.com/dod2022

report. In Texas, for example, there are 100,508 National

Guard reservists, almost 40,000 of whom are married,

and 63,629 relevant children. See Mil. State Pol’y Source,

Texas, https://statepolicy.militaryonesource.mil/state/

TX. In South Carolina, there are 25,373 National Guard

and reserve members and a corresponding 10,974

spouses and 16,416 children. See Mil. State Pol’y Source,

South Carolina, https://statepolicy.militaryonesource.

mil/state/SC.

4. Reservists have frequently experienced financial

losses when activated. See Cong. Rsch. Serv., RL30802,

supra, at 27. These losses are often attributable to the

difference in pay between their military and civilian

roles. Id. Differential pay thus provides some level of

financial security to reservist families. After all, “[t]he

most significant ramifications of large-scale mobilizations of reservists occur in the reservists’ work and family life. The family lives of millions of Americans are disrupted when loved ones are called to duty.” Andrew P.

Sparks, From the Desert to the Courtroom: The

2

Ala. Code §31-12-5; Alaska Stat. §39.20.345; Conn.

Gen. Stat. §7-461; Del. Code tit. 14, §1327(b); Del. Code

tit. 29, §5105(b); Md. Code, State Pers. & Pens. §91107(d)(1); Mich. Comp. Laws §32.273a; Okla. Stat.

tit. 72, §48; 30 R.I. Gen. Laws Ann. §30-6-5(a); Wis. Stat.

§230.315(1).

23

Uniformed Services Employment and Reemployment

Rights Act, 61 HASTINGS L.J. 773, 782 (2010).

Differential pay also assists in reservist recruitment.

In recent years, several reserve components have seen

decreases in personnel. See U.S. Dep’t of Def., 2022 Demographics: Profile of the Military Community, supra,

at 65. This decline can be attributed to several factors,

but wage competition is a significant component. For example, the National Guard faces stiff competition from

private companies. See Doug G. Ware, National Guard

Struggles to Attract Recruits as Private Sector Offers

Tough Competition for Talent, STARS AND STRIPES

(Jun. 21, 2023), https://perma.cc/G9L7-VNVM. Last

year, one officer commented that “[t]his is the most challenging recruiting environment the Department of Defense has ever faced.” Id.

The Federal Circuit’s decisions in this case and others like it can only make this tough situation even more

challenging for recruiters. Knowing that they will receive differential pay allows reservists to plan for their

financial futures and have confidence that they can continue to provide for themselves and their families if

called or ordered to active duty. The Federal Circuit,

however, has created considerable uncertainty about

which reservists will receive differential pay and for

what periods.

And reservists deserve more certainty, not less. Even

before Adams, reservists faced confusion regarding the

benefits to which they are entitled. According to one

Judge Advocate with the National Guard Bureau, there

is “a massive number of individuals who may be eligible

for benefits of which they are unaware.” Major Jeremy

R. Bedford, Armed Forces Mobilizations Under

10 U.S.C. § 12301(d) and Federal Employees: Why OPM

24

Guidance Is Incorrect, 42 CAMPBELL L. REV. 1, 4 (2020).

“Due to the complicated nature of the law, and conflicting guidance provided by agencies, many reservists are

potentially missing out on these benefits.” Id. While challenges for reservists will remain, recovering the statutory bright-line test for eligibility is an important step in

the right direction.

25

C O NC LU SIO N

The Court should reverse the court of appeals’ judgment.

Respectfully submitted.

ALAN WILSON

Attorney General

KEN PAXTON

Attorney General of Texas

ROBERT D. COOK

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

J. EMORY SMITH, JR.

Deputy Solicitor General

THOMAS T. HYDRICK

Assistant Deputy Solicitor

General

JOSEPH D. SPATE

Assistant Deputy Solicitor

General

OFFICE OF THE SOUTH

CAROLINA ATTORNEY

GENERAL

1000 Assembly Street

Columbia, SC 29201

AUGUST 2024

AARON L. NIELSON

Solicitor General

Counsel of Record

KYLE D. HIGHFUL

Assistant Solicitor General

J. ANDREW MACKENZIE

Assistant Attorney General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

26

Counsel for Additional Amici:

KRIS MAYES

Attorney General

of Arizona

KEITH ELLISON

Attorney General

of Minnesota

TIM GRIFFIN

Attorney General

of Arkansas

LYNN FITCH

Attorney General

of Mississippi

PHILIP J. WEISER

Attorney General

of Colorado

MICHAEL T. HILGERS

Attorney General

of Nebraska

WILLIAM TONG

Attorney General

of Connecticut

DAVE YOST

Attorney General

of Ohio

ASHLEY MOODY

Attorney General

of Florida

ELLEN F. ROSENBLUM

Attorney General

of Oregon

KWAME RAOUL

Attorney General

of Illinois

MICHELLE A. HENRY

Attorney General

of Pennsylvania

BRENNA BIRD

Attorney General

of Iowa

JONATHAN SKRMETTI

Attorney General

of Tennessee

RUSSELL COLEMAN

Attorney General

of Kentucky

JASON S. MIYARES

Attorney General

of Virginia

ANTHONY G. BROWN

Attorney General

of Maryland

PATRICK MORRISEY

Attorney General

of West Virginia

27

JOSH KAUL

Attorney General

of Wisconsin

BRIAN L. SCHWALB

Attorney General

of the District of Columbia