Ejusdem Generis Goes to War in Reservist Pay Dispute

by Dennis Crouch

The statute here provides a list of situations where the pay differential is required, including when federal employees are called to active duty under “a provision of law referred to in section 101(a)(13)(B) of title 10.” Section 101(a)(13)(B) lists several specific provisions and also includes a catchall when called to duty under “any other provision of law during a war or during a national emergency declared by the President or Congress.”

In the case, the petitioner Feliciano was called to service under the voluntary activation authority of 10 U.S.C. § 12301(d), which authorizes the Secretary of Defense to “order a member of a reserve component …  to active duty … with the consent of that member.”  Although the call to service was “during a national emergency” (the post-9-11 Iraqi war), Feliciano’s job duties were not directly related to the emergency.

In Adams v. Department of Homeland Security, 3 F.4th 1375 (Fed. Cir. 2021), the Federal Circuit held that reservists activated a voluntary activation authority, must show they were “directly called to serve in a contingency operation” supporting the emergency to qualify for pay differential. The court applied this precedent to deny Feliciano differential pay for his service, despite his orders expressly invoking a presidential emergency declaration. The government’s position, which the Federal Circuit accepted, is that there must be some more substantive connection between the service performed by the reservist and the emergency, not just a temporal overlap.

In the case before the Supreme Court, Feliciano argues that the Federal Circuit’s interpretation contradicts the plain language of the statute. He contends that any activation while a national emergency is in effect should qualify for differential pay, as it falls under the catchall provision of “any other provision of law during a … national emergency.” Feliciano asserts that the word “during” simply denotes a temporal connection, not a substantive one, citing United States v. Ressam, 553 U.S. 272 (2008).

The canon of ejusdem generis is a principle of statutory interpretation that holds when a general term follows a list of specific terms, the general term should be construed to embrace only objects similar in nature to those enumerated by the specific terms. In Feliciano, the Federal Circuit applied this canon to limit the scope of the catchall provision “any other provision of law during a war or during a national emergency” in 10 U.S.C. § 101(a)(13)(B), interpreting it to require a direct connection to a contingency operation similar to what they believed the specifically enumerated provisions required.  But Feliciano argues that the Federal Circuit improperly relied on the canon, noting that not all of the enumerated provisions in § 101(a)(13)(B) require a connection to a national emergency, undermining the basis for the Federal Circuit’s narrowing interpretation.

The government, in defending the Federal Circuit’s decision (and hoping for lower pay for reservists), argues that “during” can connote more than just a temporal connection. It contends that interpreting “during” to require some substantive connection to the emergency is necessary to avoid an overly broad application of the differential pay statute.  The government also emphasizes the policy implications of Feliciano’s interpretation, suggesting it would lead to differential pay for all reservists activated for any reason during a declared national emergency, which had been continuously in effect through 2023. This, they argue, would be an implausible result that Congress did not intend.  (The result here would be a tremendous amount of back-pay).

The Supreme Court’s decision in this case will have significant implications for hundreds of thousands of federal employees who serve in the reserve components.  And it would provide an additional reason for reservists to choose a Federal job.

Briefing in the case will continue through the Fall, with oral arguments likely in late 2024.