Supreme Court hears dispute over whether 'during' in differential-pay law is purely temporal or requires substantive link to emergencies

The Supreme Court on Tuesday heard arguments in Feliciano v. Department of Transportation over what it means to be called to active military duty "during a national emergency" for purposes of the federal differential-pay statute.

Petitioner's counsel, Mr. Tutt, told the justices "this case turns on the meaning of the word during," arguing that Congress intended a straightforward temporal test: if a reservist is called to active duty during a declared war or national emergency, the employee is entitled to differential pay. He said that reading is consistent with ordinary meaning, fits the statutory cross-reference mechanism, and avoids unsolvable line-drawing problems for agencies and private employers.

The government, represented by Mr. Reeves, urged a different interpretation. "The word 'during' has multiple meanings," Reeves said, explaining that in the statutory context the phrase "during a national emergency" is part of the definition of "contingency operation" and therefore carries an "in the course of" requirement that demands a substantive connection between the reservist's service and the national emergency. Reeves argued that a purely temporal reading would make the statutory list of enumerated provisions superfluous and produce anomalous outcomes.

Justices pressed both sides on practical consequences. Counsel for the petitioner said the Congressional Budget Office estimated the cost at roughly $40,000,000 per year and about $3,000 for the average reservist, figures the petitioner argued reflected Congress's understanding when it amended the statute. Petitioner also warned that the government's reading could leave private employers unsure whether they risk criminal liability under 18 U.S.C. § 209 if they pay differential benefits without clear guidance from orders.

The government disputed that employers would face unworkable uncertainty, telling the Court that call orders "are supposed to" identify the statutory authority and contingency operation and that agencies and employers could seek clarification where orders are silent or ambiguous. Government counsel also pointed to prior case law and policy considerations, arguing the Court should not adopt a reading the Federal Circuit and other tribunals have not embraced.

Several justices explored intermediate procedural options: whether the Court should decide the statute's meaning now, vacate and remand to let lower courts, particularly the Federal Circuit, weigh in, or resolve narrower questions. Petitioner said he would accept vacatur and remand but asked the Court to correct what he described as a misreading of the statutory text.

In rebuttal, petitioner reiterated that Congress intended a bright-line trigger and stressed veterans' canons of construction favoring benefit for service members when statutes are ambiguous. Counsel cited examples of nonmilitary national emergencies (such as the COVID-19 response or economic-sanctions emergencies) to argue that the statute's plain-language reading should protect reservists activated in such circumstances.

The case was submitted after roughly an hour and the justices will decide whether the statute requires only temporal overlap or also a substantive connection between a reservist's duties and a declared emergency.