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Our first case is Evan Nordby versus the Social Security Agency, 2021-22-80.

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Mr. Marshall.

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These three cases are related and as you know some of the issues are the same.

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the same lawyers.

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So we would ask that you not unduly be repetitious.

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But you have different clients, so take the time that's allocated to you to the extent you need it.

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Please proceed.

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Thank you, Your Honor.

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And good morning.

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And may it please the Court.

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Toby Marshall on behalf of Judge Evan Nordby.

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Federal employees who serve on active duty during a national emergency should not have to take a pay cut.

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Congress remedied that problem by enacting the Reservists Pay Security Act, which requires agencies to bridge the gap between civilian and military pay.

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To establish who qualifies for this differential pay, Section 5538 borrows language from 10 USC 101A13B.

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In O'Farrell, this court properly and broadly construed the borrowed phrase at issue in this case

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any provision of law during a national emergency to include active duty orders issued under 12301D during the national emergency that arose with the September 11th attack.

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When it was in support of a contingency operation, right?

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In that case, it was dealing with 6323, which does have qualifying language that required that it be in support of a contingency operation, correct?

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In Adams, this court held that something more is required.

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It held that active duty service under 12301D must be directly connected to a contingency operation.

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With all due respect, that decision was wrong.

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And we asked that this court- Isn't Adams just following O'Farrell when it said it has to be in support of a contingency operation?

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And in Adams, it wasn't in support of a contingency operation.

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It was routine training.

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I do believe that Adams was following O'Farrell, but mistakenly.

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And that's because Adams... Do you think O'Farrell is wrong too?

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No, Your Honor.

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O'Farrell is really interpreting two different provisions.

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I mean, look at footnote five in O'Farrell.

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It says, we don't hold that every training is subject to this.

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It still has to be in support of a contingency operation.

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That's in O'Farrell.

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What does Adam say that's different than that?

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The problem with Adam says that it has to be directly related.

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So Adam says that it's stricter under 5538 when actually the reverse is true.

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And the reason that the reverse is true is because in O'Farrell, it was dealing with 6323, which has qualifying language that is completely absent from 5538.

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That qualifying language is in support of a contingency operation.

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There's no reference in 5538 to a contingency operation.

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And the people that were arguing before the court in Adams did not make the argument that we're making here today, which is that there is no requirement of a direct connection to a contingency operation.

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Congress was clear with the language that it used, and all that it requires is a temporal relationship.

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As long as the active duty order issues under a provision of law during a national emergency, then the reservist qualifies for differential pay.

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What's key is recognizing that Congress has used both of these phrases, the borrowed phrase from 101A13B and the term contingency operation in numerous other statutes.

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More than 20 statutes specifically cite to that term contingency operation

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and the entire definition found in 101A13.

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But 5538 and at least eight other statutes do something different.

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All that they do is borrow a list from A13B.

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That list is a set of enumerated statutes.

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Are you saying that when it cross-references A13B and 5538, we don't look to all of 13, we just look to part of 13?

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That is absolutely correct.

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You look at the borrowed phrase, which is either going to be an enumerated statute or it's going to be the phrase, any provision of law during a national emergency.

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And when you do that and you pull that phrase out and you slot it into 5538, it becomes very clear what the statute is requiring.

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It simply requires a federal employee who performs active duty pursuant to an order issued under any provision of law

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during a national emergency declared by the president, that's all that's required.

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If that employee meets those requirements, that employee is entitled to differential pay.

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This is supported not just by the plain language, but by the legislation.

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Even though 13 is talking about the definition of contingency operation, you think 5538 doesn't have anything to do with contingency operations.

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That's correct, Your Honor.

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And I would point the court to one of the statutes we submitted in our 28J submission, 10 USC 1145, because there you see both of these phrases used within the same provision, both of these phrases being in support of a contingency operation.

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That's one.

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and the other being under any provision of law during a national emergency.

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So 1145A2 has several subdivisions in paragraphs B, C, and D, once all said in support of a contingency operation.

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But in 2017, Congress amended subparagraph B to change the language to what you find in 5538, which is under any provision of law during a national emergency.

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Now it left the other two subparagraphs the same, which means they still say in support of a contingency operation.

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That is a critical demonstration that Congress means something different between those two phrases, that they cannot mean one and the same thing, that they cannot mean that one is a contingency operation when it says in support of a contingency operation, and others... Is there any dispute here?

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about whether the orders here are in support of a contingency operation or just for routine training like it was in Adams?

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In Adams, the order specifically said it was a non-contingency operation or a non-contingency duty.

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No such language is found in Judge Evan Nordby's orders.

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Well, that's not really the question I asked.

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Is there a dispute about what his reserve duty was for?

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There's no dispute for a couple reasons.

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First, Adams wasn't decided.

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I'm asking about what was he called to duty?

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He was called to active duty for training.

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That training included, he's a judge, so it included the rule of law in counterinsurgency operations.

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It also included how to shoot a gun.

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So it was doing things that were setting him up and preparing him, should he be called to serve on behalf of our country.

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His orders say in support of?

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No, and most orders don't say insupportive.

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And I would respectfully say to the court that that's not necessary, because insupportive is not found in 5538.

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And again, I would ask the court to look at these 20 other statutes that do use that sort of language.

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And I'm going to give you some specifics.

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while participating in a contingency operation.

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One statute says that.

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Another says in connection with a contingency operation.

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Another says to support a contingency operation.

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None of this qualifying language is found in 5538.

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And when you look at the legislative history... Does your reading basically mean that everybody that's called to active duty gets this differential pay?

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Because we've been under one national emergency or another since, I don't know what the government points out in their brief, but for a long time.

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If Congress wanted to give differential pay all the time, there's a really easy way to do it.

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They just give it to them, right?

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They don't have this complicated list of a bunch of different provisions and have definitional stuff about contingency operations.

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They just write a statute that says,

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reservists get the differential between their civilian and military pay?

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They did do that.

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They wrote a statute that said that they get the differential if they are called active duty during a national emergency.

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Now that statute was enacted against the backdrop of the 2001 attack.

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Congress knew that this was going to be broadly applied.

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And if you look at the amicus brief submitted in Adams on the certiorari

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petition, which is cited in the next case Feliciano, you'll see that Congress lays out that congressional history that there is no qualifying.

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Isn't that amicus brief post enactment?

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It is post enactment, but it lays out the history.

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I mean, there's lots of precedent saying we don't look at post enactment statements of legislatures to determine statutory.

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Understood, Your Honor.

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Also, doesn't it prove too much?

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I read the

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the quotes from that legislative history, and all it says is we think reservists called to active duty should get differentials.

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They didn't qualify it in terms of national emergencies or life.

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They just thought everybody should get it.

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But if they wanted to do that, again, they just write a statute that says if you're called to duty for reserve training, you get a pay differential.

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You don't qualify it based on a list of about 10 different statutes and this other provision, any other provision of law.

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Respectfully, your honor, what I would say is that they knew that we've been under a national emergency of one kind or another since the seventies.

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And so they knew that this was going to be broadly applied and that's exactly what they intended.

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And I'm asking this court to take a look at the amicus brief, not for the statements within the brief, but for how it lays out the contemporaneous history of comments from a variety of senators.

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This was a bipartisan bill supported by, I believe, 120 different senators.

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And I would also point out that there's not a budget problem here because in Mr. I'm sorry, Judge Nordby's case is a good example.

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His civilian pay has already been appropriated.

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So when he goes on military leave, it's a windfall to the social security administration because they get to retain a hundred percent of his pay.

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All that we're asking for is that he get paid the differential.

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It's not going to cost the Social Security Administration anything extra, because those funds have already been appropriated.

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And the Congressional Budget Office... Does this apply only to federal employees, or does it apply to all employees?

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Only federal employees.

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The statute's absolutely clear.

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It's only federal employees, which is approximately 10% of the 1.2 million reservists that we have in this country.

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So it's about 120,000.

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I've seen estimates up to 200,000, but you're in that range.

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You're getting close to your rebuttal time, I think.

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I just want to ask you, do you think Adams is controlling here?

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I know you said it was wrong, but we have to go en banc to overturn it if it's wrong.

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Correct.

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And I think that there's a path by which this court can say Adams is distinguished or can refer back to O'Farrell as the primary case.

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But to the extent that this court thinks it has to overturn Adams, we do respectfully ask

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that you refer this case to an en banc hearing.

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This is an important issue.

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This is the only court that can decide this question.

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And in Adams, we do believe a mistake was made.

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There were an understandable reason for that, because you were looking at O'Farrell, which does have this in support of contingency operation language.

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But that language is not found in Adams.

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That mistake needs to be remedied, and I'll reserve the remainder of my time.

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Thank you, counsel.

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We will save it for you.

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Ms.

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Johnson?

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Good morning, Your Honors, and may it please the Court.

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Can you just respond to that last point that O'Farrell has the insupportive language and 5538 doesn't?

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Correct.

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So the 6232 statute under which O'Farrell was decided, that's a different provision of benefits.

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It's a leave statute as opposed to differential pay.

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So the statutory language there defines who gets benefits in terms of who is called to duty in support of a contingency operation.

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That language appears directly in the statute.

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5538, however, is the differential pay statute.

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And that only talks about reservists being entitled to differential pay.

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And so by incorporation, it looks to the scenarios in which a reservist could be entitled to pay.

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And this court decided

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in Adams at 1378 that the definition of contingency operation was incorporated into the differential case statute by reason of that reference.

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So that has been decided by the court.

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That was considered.

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I think there was an argument that the court didn't analyze that.

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Well, yeah.

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I guess I want you to respond to his argument that when 5538 cross-references 13B,

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It's not incorporating the entire section of 13B.

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It's just incorporating a list of provisions, and they don't have to be contingency operations.

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Well, I think the argument, in fact, that Council is making in order for his reading of the statute to work for Mr. Norby is that it's incorporating more than that.

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It's not just the list of referenced law.

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It's also the catch-all phrase that comes after it.

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So it has to work a little bit more broadly in order for NordWeed to get relief here.

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But if we look at what A13 does, that is, broadly speaking, the definition of contingency operation that applies to all military regulations that come under Title X. That's a very, very broad set of regulations.

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is one way of defining contingency operations by way of a military operation that generally the United States gets involved in against its foreign enemies.

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Section B then includes more narrowly where reservists could be involved in a contingency operation.

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So it defines

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a contingency operation in terms of reservists called to active duty.

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So it makes sense then that the differential pay statute that only applies to reservists would look to the portion of a contingency operation that only applies to reservists.

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I don't think there's any inconsistency there.

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And I think this court correctly held that and described that in Adams.

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5538 doesn't have the words in support of, unlike the statute that was at issue in Adams.

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Isn't that right?

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That's correct.

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So why isn't that a very meaningful distinction here?

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Well, Discord and Adams made that same distinction, said 5538 requires direct participation in a contingency operation, whereas section 6232 does not, because it does not have that language.

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6232 is at issue in O'Farrell, I think.

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Correct.

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That's correct.

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In a case where the petitioner, and I apologize for getting ahead of the court here a little bit, but in Mr. Flynn's appeal, his orders, what he is alleging his duty was, was in support of other operations.

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And so this court did hold in Adams that in such a case, that wouldn't come under the 5538s.

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Is it true that here for Judge Nordby, his orders don't specifically say in support of?

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No, his orders are far more broad.

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I think they just referenced 12301D and describe the training that he's taking part in.

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Do we, is it, maybe not on this record, but could there be a factual dispute as to whether under Adams, someone like Judge Norby is ordered directly into a contingency operation or is ordered only to support

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the contingency operation, and could that be dispositive in any particular case?

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Yes, it could.

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And in fact, that was the issue similarly raised in O'Farrell.

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The court was under a different statute, but the court was actually called upon to answer the question of whether Mr. O'Farrell's orders were or the duty performed was in support of a contingency operation.

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The parties there didn't actually dispute that there was a contingency operation going on because it was

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the hostilities in Afghanistan were what he was supporting.

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So there was a factual dispute there, and that's what the court was looking to.

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Here, however, what the parties are disputing is whether or not there was even a contingency operation implicated by the orders and by the duty that was being performed.

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So to conclude, as Mr. Norby's counsel pointed out, that

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The presidential decision to Adams does control the outcome here, and in order for Mr. Norby to get around that holding, this court would have to sit in bonk in order to revisit those issues.

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The court, of course, had the opportunity to do so in Adams when Mr. Adams moved for a petition for rehearing and a rehearing on bonk.

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The court declined to do so subsequent to that.

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The Supreme Court of the United States also had the opportunity to take up these issues in a tertiary petition, but also declined to do so.

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And so with that, Adams is the subtle law of this circuit, which must control the outcome here and in the companion cases.

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If I'm understanding Mr. Marshall correctly, he says the key argument here wasn't actually made in Adams.

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Is that correct?

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If I understand that correctly, I'm saying that the parties didn't actually dispute whether or not 50538 incorporated the definition of a contingency operation.

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And I believe that wasn't an issue that was significantly briefed because I think the parties agreed that by reference, 5538 did presume that a contingency that reserves would have to be taking part in a contingency operation.

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So that wasn't an issue that was heavily disputed or briefed, but the court did hold in Adams that 5538 contemplates a contingency operation.

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So it was an issue that was

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resolve, nonetheless.

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Do you have any response to the supplemental filing and the statutes that are cited there?

[00:20:05] Speaker 00:
I do.

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I don't believe it supports an argument that would change the outcome here.

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Of course, there are multiple references to this 101A13 definition in other parts of the law.

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That is unsurprising, given the fact that section 101 is the definition section that applies very, very broadly to many different

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regulations and statutes.

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But Mr. Norby has not made any claim that that definition has been interpreted any differently than the way this court has interpreted the definition when applied to a differential pay statute, or this differential pay statute.

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So unless there is an argument that there has been some inconsistency here, I don't see how that furthers the argument in favor of Mr. Norby.

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If there are no further questions, we respectfully request that this court affirm the MSPB is holding in this case.

[00:21:02] Speaker 00:
Thank you.

[00:21:02] Speaker 01:
Thank you, counsel.

[00:21:04] Speaker 01:
Mr. Marshall has some more bottle time.

[00:21:08] Speaker 02:
Thank you, Your Honor.

[00:21:08] Speaker 02:
Just a few brief points.

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First, this is what was quoted in the Adams decision.

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Mr. Adams argues that every military reservist ordered to duty is performing a contingency operation so long as the national emergency continues.

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a very different argument than what we're making here, which is that there is no requirement for a direct relationship to a contingency operation.

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And that, again, is because Section 5538 simply borrows some language from A13B.

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It does not cite to contingency operation.

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It does not use the words contingency operation.

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And the numerous examples of statutes

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that have those two different approaches show that there's something meaningful there.

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We would also point out that 5538 says a law referred to in 101A13B.

[00:22:06] Speaker 02:
A law referred to, again, is just pointing out that we're borrowing from one of these laws.

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Now, one of the things I would like to address that sort of came up here just now is

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The point about our 28-J submission is about the juxtaposition of these two different phrases in some of the same statutes.

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Again, it must mean something different.

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I would also point to the court that we're dealing with benefits for reservists here, and the United States Supreme Court has held that statutes that provide such benefits must be construed broadly.

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And again, the plain language is any provision of law during a national emergency.

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That's just a temporal requirement, nothing more.

[00:22:53] Speaker 02:
Finally, I would say that when the court drills down on 101A13B, I'm not sure whether this was an issue in Adams or not, but the last antecedent rule applies such that the final provision, any provision of law during a national emergency

[00:23:12] Speaker 02:
That during a national emergency only applies to any provision of law.

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It does not apply to the enumerated lists of statutes.

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And as we've pointed out in our brief, I believe at page 35, those statutes apply in many situations other than emergencies, other than contingency operations.

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So when you look at 101A13B and you consider the fact that the enumerated statutes apply in numerous situations,

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And you apply the last antecedent rule, which is that there's no comma, so that final during a national emergency does not modify the earlier antecedents.

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It only modifies the last antecedent that further supports our position.

[00:23:56] Speaker 02:
We respectfully ask this court to reverse or to refer this case for non-bond carrying.

[00:24:00] Speaker 02:
Thank you very much.

[00:24:02] Speaker 01:
Thank you, counsel.

[00:24:03] Speaker 01:
We will take the case under advisement.