please the court my name is daniel cooley and i represent the petitioner mr michael jail carol this case turns on an issue of statutory interpretation below the board imposed on certain statutes relating to the service members we've benefit a listing requirements now on appeal both parties agree that the service member when trying to establish a title and so we benefit can provide evidence outside time to really research it i recall back in the early ninety's that if a military member was activated and came back to their employer and their employer claiming under sixty three twenty three the to be which talks about performing full time military service as a result of the cole order to active duty in support of a contingency operation and then the defense definition of contingency operation in section one a one of the statute says that it has to be a military operation and i guess the question is what's meant by military operation  that means a military deployment i mean if if your client for example had replaced somebody who was simply going on vacation and whose responsibility was contracted for the construction of military housing news washington d c i mean would that be a military operation or or not so i guess there's two questions there the first question is whether the individual is departing whether that image individuals undertake a military operation and then the individual who is replacing that individual whether that person was undertaking a military operation and i think the relevant question understand and congress has explicitly referred to section went to one and in that they say a military operation which results in the collar order to duty and then it provides a number of sections and then the terminal of which which is a i would say catch all provision just to sweep in on intend herb missed provision says any other provision of law now here i think the plain reading a military operation for that second individuals an operational military this person has been called in an operational military judge takes type of suggested the first guy was going on vacation is that is his vacation necessarily a military operation against a hostile for the united states of course not well and it again so i think we have to distinguish between the person who's departing and the person who's being called then i don't think the statue requires that the person departing what they do is in the terry operation the question is the person that's coming in what are they supporting and so here i appreciate  not sure the that's true but you know for example of someone we're called up which of course happened to go to afghanistan and that would be he would be participating in a military operation to get the extra compensation right but if that person is not being deployed then you have to say well he's none the less supportive a military operation because he's replacing somebody who's engaged in a military operation or my hypothetical the person who was replacing was not doing that the person is going on vacation so it seems to me that you can look at either want to support your idea that th coverage but if the person if the person going in is not being deployed and he's not replacing somebody who is being deployed i have some difficulty in seeing how the statute would apply to my employer but i do understand your honor and i  think that the hypotheticals an interesting one although under the facts of this case right it's a situation where somebody was replacing someone who had deployed to a military operation so it would be under your first hypothetical but i do think that is we as we look through the language of the statute it's it's pretty straightforward and it once again it turns on what is a contingency operation i do think at the end of a rest and recuperation leave for two weeks or they're injured and they're sent to a hospital in germany and somebody replaces them and they're replacing somebody who in some sense is going on vacation point judge moore made earlier wait wait but there's no question about that the person if the prison the person who's been called up is going into combat is going into a military operation no question the person is covered and it would seem also if the person who was going in the military is replacing somebody who's been deployed that also aren't we be unsupported area but what about the situation which neither one of those things is true and the person who is being called up is only replacing somebody who's going on vacation a person who was not the pool and was just sitting here in washington working on the military housing in the washington area and your argument goes so far as to say that that person going to the extra compensation and your honor i think that you know that is an interesting question honestly that one could argue both ways and i think that you know reading the plain language of the statute  i do think the statute does focus on the person coming into service and that person's operation what was the us not just doesn't it depend on the complexity of the armed forces i mean so much of what the military that the pointy end of the spear is only ten percent so much of what the military does is let's just fix training preparation and all of those are in support of military operations and have to be we can just very briefly on the on this language that was specifically chosen by congress here the emirates that is in the other provision of law during a war i think that it really is the operative word during because it's this is during a existence the right it's necessarily a high international emergency it's a time of national consequence now and so if you still have to be in support of a contingency operations you have to be in support of something support of a contingency operation i don't i don't i'm just very confused i feel like you didn't listen to judge sykes hypothetical very well i appreciate you doing this for bono you look great briefs but you're not listening we're actually when you're side and you're fighting us because you're not listening let me wrote that it really clearly for you in a surprise in my view means it doesn't matter whether your guy is in support of it's good enough if the guy clearly as i pathetically that you did not and the answer to a hypothetical should be of course not judge dyke if somebody just leaving on vacation somebody else gets called up that's not in support of a contingent military operation a national emergency a wartime whatever but in this case it absolutely is because that guy's going to afghanistan doesn't matter where the my guys going to afghanistan and that's with the support of life which the in support of language allows you to distance yourself a little bit you're not going have to be the one going to afghanistan but you're doing this interpreting for general purposes right and it's good enough for you to win but it's not reality and it's not reality because of the way the armed forces work people go on vacation working in the pentagon and people are called up from the reserve and the national guard to let me let me respond to that i wouldn't disagree at all because that would be a situation where the person called up is actually directly working on relevant matters for a national emergency if your guy's not there's no dispute your guy isn't doing national emergency he's not doing the stuff personally a regulated to hostilities who are enemies of the united states and that's ok because maybe this actually doesn't require him to by no means did my interpretation exclude the judge is simply not interpret in the statute in a way that creates a scenario where every single military officer called to active duty since nine eleven just because we have had it declared state national emergency since ni automatically entitled to what is clearly meant to be extra compensation for people that really are called up in support of a national emergency i want to avoid an interpretation which i think results in this statute being a way broader than what it was intended to be the you understand the concern i'm expressing i absolutely understand and if the court chooses to construe stache in that way then as the corner then mr farrell would still be entitle two thousand and one your honor with with enemies under declared either statutes in place in the united states which go into effect when the united states is actually at war  situations we've been operating in korea and vietnam and so on under the national emergency sections of or under the authority of the president and his national emergency authorities under the constitution and in support of military operations likely your honor yes yes it's a military operation as if it's if the military is only likely if military out your honor if the military operation is in support of say the war on terrorism derive direct support the war on terrorism there detaining terrorists and i would likely could likely be a military operation involved with that national emergency in your own i was going to point out that i want to point b just says national emergencies generally so there could also be contingency operations that you know would have natural disasters civil unrest the not those type of scenarios as well so if if and that government starts building housing for those families is that housing and support of a national emergency military operation it could be your honor but an important point in the statute is also how how the dea how the department of defense views the order that it's issuing two to the individual to the service member in sixty six to three to be says  call or order to active duty in support of the can and to see operation so it's relevant to understand what was d o d s intent when we placed the person on active duty and i believe that's why the administration of judge did focus on the orders because that is the order your honor the orders do not say in support of the contingency operation and the agency did put into the record an example of another service member's orders who did specifically have what in addition those orders i'm sorry your honor what entity issued not say that that the the service member could produce other evidence to show a person who prepared those organs i'm not aware of the person who prepared the orders your honor but i magine it's a it's an administrative process that's the direction to do it and it's put out that the evidence the board judges keyed in on is you have an example of one service member who was whose orders did say contingency operation so that is definition in section one of the statue of contingency operation and that's relevant here but in what other areas is that term contingency operation east and what other areas of  not used only to define the right to paid leave it has been many many other uses in the statute correct yes and what are those other uses what is what what is contingency operation are anything that makes the army function more effectively combat is that not true service member yes six three two three b is something that's meant to be an additional in special circumstances so our reading of contingency operation has to be consistent with that structure that this was meant to be special for special circumstances and the issue that we have in the board have it said mr o'farrell while that fact the specific fact that he replaced somebody who went to afghanistan is in the record there was no argument presented  say that my my service his service didn't accept port a contingency operation it was he relied on the fact that he was on active duty the fact that someone did go to afghanistan and the fact there was an emergency at the same section of the united states eighteen united states code to which i was referring when i asked you as a council i am your honor i'm not i'm not aware of the specific section that addresses criminal sanctions for discrimination based on active duty service usera does civil purposes usera does cover that and so you're on the issue with him to close the issue with the board's decision the board was troubled by the fact the orders did not state a contingency operation and we agree that evidence can be produced outside of the orders however it's not certain that the board was making it legal determination under under the statute the orders had to say that that statement did come after of discussion of the record don't know is could the name it was unable installation was that person's deployment depended upon finding a replacement we don't know that we don't know if the command could have sent him but for having replacements there wouldn't have been a at a naval installation those duties would likely be the ongoing whether there was open hostilities going on whether there was war going on the naval surface warfare center so contract law you i just want to address a few quick points that were discussed first of all it was judged back asked the question where the terminology contingency operation is used and based on research it's used in approximately thirty five other statutory provisions and it's specifically referred to by name this one on one a thirteen contingency operation i refer to five u s c fifty seven forty two as an example of that and it's a good example because it explicitly imposes a direct requirement in that statute this provision is absent here one of the other statutes where this is this term is used i don't unfortunately i don't have a full listing of them your i just have an example on but i will note also that regarding the terminology in the usage of the term during i would refer the court to four twenty five f three the five forty nine this speaks to the executives usage of this sort of language to call people into duty and it seems only fair that same scope should be applied on the other side when applying benefits is it your argument that everyone who is called up to active duty no matter what the purpose of their particular call is if the branch of service in which they will be called in to ease itself engaged in military conflict or there is a national emergency that every single person called to active duty is automatically entitled to not just the standard fifteen days but the extra twenty two days is it your view that the statute gives every single person called to active duty regardless of the purpose of the work they will be doing regardless of who they will be replacing automatic in title meant simply by virtue of being called up they have to be called into the army at a time when the army itself i and i do agree that the language military operation is there and does have to be in operation of the military so it couldn't be any kind of activity i would agree that that would be reaching too far i think a certain point engaged in military operations contingency operations around the world so he did make a direct statement and also in that same brief he talks about operation enduring freedom in the factual discussion the fourth point is the