Free Reply to Response to Motion - District Court of Federal Claims - federal

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No. 00-644C (Chief Judge Damich)

IN THE UNITED STATES COURTOF FEDERAL CLAIMS

WILLIAM CLARK, al., A. et. Plaintiffs,
V.

THE UNITED STATES, Defendant.

DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PETER D. KEISLER Assistant Attorney General OF COUNSEL: LT. COL. JOSEPH FETTERMAN MAJOR CHRIS SOUCIE MAJOR GARY CORN United States Army Litigation Division Arlington, VA22203-1837 LT. COL. JOSEPH WENDLBERGER United States Air Force General Litigation Division CAPTAIN CHRIS BROWN National Guard Bureau Office of Chief Counsel DAVID M. COHEN Director JAMES M. KINSELLA Deputy Director DOUGLASK. MICKLE Trial Attorney CommercialLitigation Branch Civil Division Departmentof Justice Attn: Classification Unit 8th Floor, 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 353-7961 Fax: (202) 353-7988 Attorneys For Defendant

July 18, 2005

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TABLE OFCONTENTS PAGE(S) DEFENDANT'S REPLY TO PLAINTI]?FS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY ................................................................................... JUDGMENT ARGUMENT ................................................................................................................................. I. The United States Is Entitled To Summary JudgmentBecause The Secretary Has Never Prescribed Regulations That Established Individual WorkOn Correspondence AsInactiveDuty Courses Training .................................................... A. The Secretary's Prescribed Regulations Governing ARNG Training Do Support Not Plaintiffs' Claims ........................................................................... B. The Secretaries HaveNever, Nor Could They, Invoke Their Authority Pursuant To Section 502(0 Of Title 32 To Establish .ARNG Training That Not Is Unit-Based .............................................................................. Training C. Plaintiffs' OppositionHighlights The Fact That The Legislative History BehindTitles 32 And37 Supports The Secretary's Interpretation That Congress Only Has Authorized Unit-Based Training ............................................ II. Plaintiffs HaveMisread The Federal Circuit's Decision As A Mandate For This Court To Find Liability Against The United States Because Required Training Compensable Is .............................................................................. A. Plaintiffs Misread The Federal Circuit's Opinion To Amend Plain The Language TheStatute ByAdding Word Of The "Required" ................................ . III. There Is NoBasis For Plaintiffs' ContentionThat TheSecretary Has Required Correspondence AsARNG Courses Training ............................................................. CONCLUSION ............................................................................................................................

1 3

5

5

8

11

14

16

17 20

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TABLE OF AUTHORITIES FEDERAL CASES Augustinev. Principi, 343 1334 Cir.2003) F.3d (Fed. ........................................................................................ Bowen Oistead, v. 125 .800 Cir.1997) F.3d (9th ............................................................................................ Doev. United States, 372 1347 Cir.2004) F.3d (Fed. .......................................................................................... Clark v. UnitedStates, 322 1358 Cir.2003) F.3d (Fed. .................................................................................. O'Hanlon United States, v. 11C1. 192 Ct. (1986) ......................................................................................................... Tirado-Acosta v. Puerto Rico National Guard, 118 852 st Cir.1997) F.3d (1 .............................................................................................. U.S.v. Harvey, 659 62(5thCir.1981) F.2d ............................................................................................. UnitedStates v. Clark, 454 555 U.S. (1982) ......................................................................................................... Wrigglesworth v. Brumbau~h, 121 F.Supp. 1126 Mi.2000) 2d (W.D. .............................................................................. Wronkev. Marsh, 787 1569 Cir.1986) F.2d (Fed. ......................................................................................... U.S.v. Wilson, 53M.J. (CAAF ............................................................................................... 327 2000) U.S.v. Wolfson, 36C.M.R. (ABR ............................................................................................. 722 1966) PAGE(S)

14

8

7

15, 16

7

8

18

11

8

11

19

18

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STATUTES 10U.S.C.101(d)(5) § .................................................................................................................... 10U.S.C,lOl(d)(6)(a) § ................................................................................................................ 8 8

lO lO §6s3 u.s.c. ............................................................................................................................ 9 lO §1475 u.s.c. ............................................................................................................................
10 U.S.C. § 12310(c)(1) ................................................................................................................. 10 U,S.C. § 12315 ........................................................................................................................ 10 U,S,C. § 12732 ........................................................................................................................ 31 U.S.C. § 1341 ............................................................................................................................ 31 U.S.C. § 1512 ............................................................................................................................ 31 U.S.C. § 1513 ............................................................................................................................ ............................................................................................................................ 31 U.S.C, 81517 32 U.S.C. § 101(19) ....................................................................................................................... 32 U.S.C. 9 10 20 4 4 4 4 8

9 §112(b) .........................................................................................................................
9, 10 passim passim

32 U.S.C, §502 ........................................................................................................................ 32 U.S.C. §502(a) ............................................................................................................... 32 U.S,C. §502(0 ................................................................................................................ 37 U.S.C. 37 U.S.C.

4, 5 §2o4 .......................................................................................................................... 2 §206 ..............................................................................................................................
15, 16, 17 3, 6 passim

37 U.S.C. §206(a) ...........................................................................................................

37 U.S.C. §206(b) ..................................................................................................................... 37 U.S.C. §206(d) ...............................................................................................................

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Sen.Rep. 1795 U.S.C.C.A.N. ............................................................................. No. 1952 2005 Sen.Rep. 1874 U.S.C.C.A.N. ............................................................................. No. 1962 2390 The CareerCompensation of 1949,ch. 681,§ 102(i), 63 Stat. 802...................................... Act TheArmed ForcesReserve of July 9, 1952,ch. 608, § 101(d),66 Stat. 481....................... Act I~IISCELLANEOUS ArmyRegulation ("AR") 350-I, Training: ArmyTrainin~ AndEducation, 9April ................................................................................................................................. 2003 Dep't of Defense Directive 12t5.6 UniformReserve. Trainin~ and Retirement Cateeories (Mar. 1997) 14, ........................................................................................................................ Dep't of Defense Directive 1215.13, Reserve Component Member Participation Policy. (Dec. 1995) 14, ..............................................................................................................................

13 14 13 13

11

5, 15

5

Dep't of Defense Instruction 1215.19, UniformReserve. Training and Retirement Category Administration, 12,2000) (Dec. .......................................................................................... passim Dep't of Defense 7000.14-R, DoDFinancial Management Rezulation, Vol 7A ("DODD 7000.14-R") .................................................................................................................................... FieldManual October 2002, 7-0, 22, Trainin~ Force The ..................................................... National GuardRegulation 37-104-3, Financial Administration: Military Pay AndAllowances Policy And Procedures- Army NationalGuard,24 Oct. 2003.......................... National GuardRegulation (AR)350-1, Training: Amav National GuardTrainine, (June 1991) 3, .....................................................................................................................

6 17, 18

6 passim 7

Letter to Lieutenant WilliamE. Archer, Jr., B-165712,1969 Comp.Gem 4500 (1969) ....... WL

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INDEX TO APPENDIX Document Declaration Declaration Command Sergeant Major (Retired) McNamara ............. Pa~e 415-436 437-442

of Howard Manwiller ..................................

Attachment 2 to Manwiller Declaration (Administrative Instructions for IDT) .......................... Declaration of Daniel J. Kohner .................................... Declaration of Colonel Ernest C. Audino ............................

548-560 633-642 643-647

Department of Defense Directive 1035.1, Telework Policy for the Department of Defen ,(Sep. 2002) ........................................... Dep't of Defense Directive 1215.6, UniformReserve. Training. and Retirement Categories, (Mar. 14, 1997) ...................................... Dep't of Defense Directive 1215.13, Reserve ComponentMember Participation Policy, (Dec. 14, 1995) ............................. Dep't of Defense Instruction 1215.19, UniformReserve. Training and Retirement Category Administration, (Dec. 12, 2000) .............. Dep't of Defense 7000.14-R, DoDFinancial Management Regulation, Vol 7A, Paragraph 5801 ........................................ National Guard Regulation 37-104-3, Financial Administration: MilitaLw Pay mad Allowances Policy and Procedures-Amay National Guard, 24 Oct. 2003 .................................... National Guard Regulation (AR) 350-1, Training: ArmyNational Guard Training, (Jun. 3, 1991) ................................... National Guard Regulation 635-102, Officer and Wan'ant Officers Selective Retention, July 1, 1988 .................................

651

655

6631

668

709

716

733

752

V

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National Guard Regulation 680-2, AutomatedRetirement Points Accounting System, Mar 1, 1989 ................................. National Guard Regulation 351-1, Individual Military_ Education and Training, Jun 1, 1987 ....................................... National Guard Regulation 635-100, Termination Of Appointment And Withdrawal Of Federal Recogmition, July 15, 1983 ............... National Guard Regulation 600-200, Personnel General: Enlisted Personnel Management, Mar 1, 1997 .............................. Air National Guard Instruction 36-2002, Enlistment AndReenlistment In The Air National Guard AndAs A Reserve of the Air Force, Mar 1, 2004 .................................................. Air National Guard Instruction 36-2502, Promotion Of Airmen, Aug 25, 2000 ................................................. Air National Guard Instruction 36-2504, Federal Recooaition Of Promotion In The Air National Guard (ANG)And As A Reserve Of The Air Force Below The Grade Of General Officer, July 28, 2004 ............. Air National GuardInstruction 36-2606, Selective Retention Of Air National Guard Officer And Enlisted Personnel, Feb 28, 1997 .................. ArmyRegulation 135-155, Promotion Of CommissionedOfficers And Warrant Officers Other Than General Officers, 13 July 2004 ........

767

793

806 819

898

950

960

971

977

ArmyRegulation 135-200, Active Du_ty For Missions, Prqiects. And Training For 999 Reserve ComponentSoldiers, 30 June 1999 ......................... ArmyRegulation 135-205, Enlisted Personnel Management, Sept,1 1994 ................................................. ArmyRegulation 350-10, Management ArmyIndividual Trainin~ Of Requirements And Resources, Sept 14, 1990 ....................... Ata-ny Regulation 350-1, ArmyTraining and Education, Apr. 9, 2003 ................................................. 1010

1023

1036

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AlxnyRegulation 351-1, Individual Military_ Education Training, 15 October 1987 ............................................. Departlnent of the Am~y Pamphlet 350-58, Leader DevelopmentFor America's Am~y, Oct. 13, I994 ................................. Department of the ArmyPamphlet 350-59, ArmyCorrespondence Course Program Catalogue, Oct 1, 2000 .................................

1096

1129

1151

Department of the ArmyPamphlet 351-20, ArmyCorrespondence Course Program Catato~ue, Apr. 28, 2000 ....................................... 1180 Field Manual7-0, Training the Force, Oct. 22, 2002 ................................................ Field Manual 22-100, ArmyLeadership. Be. Know.Do, Aug 31, 1999 ................................................ Air Force Policy Directive 36-22, Air Force Milita~_'y Training, Mar 22, 2004 ................................................ Air Force Instruction 36-2201, vol. 4, Air Force Training Program, ManagingAdvanced Distributed Learning, Oct. 23, 2002 ............. Air Force Instruction 36-2201, vol. 3, Air Force Training Pro~am, On The Job Training Administration, 4 Feb 2005 ................... Air Force Instruction 36-2301, Professional Military Education, Jun 27 2002 ................................................. 1208

1308

1326

1331

1348

1354

Air Force Instruction 36-2618, The Enlisted Structure, Apr. 1, 1999 .................................................

1363

Air Force Instruction 51-604, Appointment To And Assumption Of Command, 1377 Oct 1, 2000 ................................................. Air Force Manual36-8001, Reserve Personnel Participation And Training Procedures, Jan 22, 2004 ............................... 1382

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FORSCOM/ARNG/USAR Regulation 350-2, Reserve Component Training, Oct. 27, 1999) ...............................................

1411

U.S. Army Training and Doctrine Command ("TRADOC") Regulation 350-70-4, Systems Approach to Training, Management Processes And Products, 1422 Mar 9, 1999 ................................................. TRADOC Regulation 350-10, Institutional Leader Training and Education, Aug. 12, 2002 ...................................... 1455

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM CLARK,et. al. Ao Plaintiffs, v. THE UNITED STATES, Defendant. )

)
)

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No. 00-644 (Chief Judge Damich)

)
)

)
) DEFENDANT'S REPLY TO PLAINTIFFS' TO DEFENDANT'S MOTION FOR SUMMARYJUDGMENT

OPPOSITION

Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims("RCFC"), defendant, the UnitedStates, respectfully submitsthis reply in responseto plaintiffs' opposition to our motion for summaryjudguaent ("P1. Opp.'). In our opening motion, we demonstratedthat the Secretary~ has never prescribed workon correspondence courses as a "regular period of instruction, or period of appropriate duty," or "equivalenttraining, instruction, or duty, or appropriateduties." We also set forth the historical development the present day service directives and regulations governingthe training of the of ~Army National Guard("ARNG") to clearly showthat the completion of correspondencecourses does not now,nor has it ever, qualified as either a regular period of instruction or appropriate duty or the equivalent thereof. TheSecretary's prescribed directives and regulations do not include an individual's self-paced, unsupervisedand off-duty workon correspondencecourses,

~ Throughout this Reply, the term "Secretary" is used. Depending upon the circumstances, facts and supporting documentation,"Secretary" refers to the Secretary of Defense, Secretary of the Army,Secretary of the Air Force, or any combination the three. of '- Becausethe lead plaintiff, Mr. Clark, is a member the ARNG, of references in this brief generally are to the ARNG, however discussion is of equal applicability to the plaintiffs who the are members the Air National Guard ("ANG"). of

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either as a regular period of instruction or appropriateduty, or equivalenttraining, instruction, duty or appropriateduties. Struggling to avoid the clear import of the Government's arguments,plaintiffs seek to foreclose their consideration by mistakenlyinvokingthe law of the case doctrine. Plaintiffs strained reading of the Federal Circuit's opinionin this case is simplynot supported. Clearly, the Federal Circuit's decision waslimited to the specific and narrowissue of whetherMr. Clark's undisputed membershipin the ArmyNational Guard of the United States ("ARNGUS") precluded him fiom seeking compensationfor completing correspondence courses based upon the bar in 37 U.S.C. § 206(d). Acceptingas true Mr. Clark's well-pied allegations as to his status, the Federal Circuit reversed this Court's RCFC 12(b)(6) dismissal of Mr. Clark's claim, and determinedonly that Mr. Clark's status, vice his membership, the time he allegedly at completedcorrespondencecourses controlled the issue of section 206(d)'s applicability. The Federal Circuit madeno ruling, as to what training the Secretary prescribed as "equivalent training." Moreover, plaintiffs' understandingof the Federal Circuit's opinion rejects the plain language of 37 U.S.C. § 206, and substitutes the word"required" for "as the Secretary may prescribe." Plaintiffs then provide a tortured interpretation of"equivalent training" and ignore the clear meaning equivalent training and the requirementthat it be prescribed by the of Secretary. Plaintiffs' opposition concedesthat 32 U.S.C. § 502(a) does not provide authority for the Secretary to prescribe individual training for ARNG members. Instead, plaintiffs assert that 32 U.S.C. § 502(t) establishes the Secretary's authority. Plaintiffs are wrong.Section 502(f) not establish a newtraining status for members the ARNG. of Moreover, even assumingthat 2

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section 502(0did provide that anthority, the Secretary has only prescribed regulations that define the nature and scope of equivalent training that ARNG soldiers mayperformill a Federally compensable status: Active Duty, Inactive Duty Training, and Full-TimeNational Guardduty. For the reasons stated in our openingmotion, and in this reply, the Court should grant our motionfor summary judgmentbecause there are no genuine issues of material fact and the UnitedStates is entitled to judgement a matter of law. as ARGUMENT Theprimaryissue before this Court is a narrowlegal issue: what training has the Secretary prescribed for the ARNG. Plaintiffs have concededthat they did not complete correspondence courses during their regular drill periods, as additional unit drill periods, or as eqmvalenttrmmn~,to make-upmxssed~%ularperiods or drill. Instead, plaintiffs' case now

rests upontheir belief that 32 U.S.C. § 502(0provides for another type of equivalent training, one that allows the Secretary to prescribe individual training for members the ARNG is in of that additional type of equivalent training. Theplaintiffs havemisinterpreted section 502(0, and this is fatal to their case. Section 502(0 establishes the Secretary's authority to prescribe full-time National Guard duty. It does not affect equivalent training. TheSecretary has prescribed regulations defining equivaleut training, and established "minimum standards that must be met" before this training is compensable. Se_~e37 U.S.C. § 206(b). Noneof the plaintiffs have sho~vnthat they have met these standards. Thus, having concededa lack of equivalency with regularly scheduled IDTs, the only equivalent training contemplatedby Section 206, plaintiffs nowmust struggle to find someform 3

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of equivalencywherenone exists. Plaintiffs primaryargumentin this regard is that correspondencecourses are equivalent to in-residence military education for which ARNG members paid. This argumentis fundamentally flawed however, and highlights the lack of are merit to plaintiffs' claims. ARNG members attending in residence training receive basic pay for their periods of in residence duty, pursuant to 37 U.S.C. § 204. Theyare not compensated pursuant to Section 206. Conspicuouslyabsent from Section 204, however, is any equivalent training provision. If correspondence courses are equivalent to in-residence training as plaintiffs state, there is simplyno congressionalauthorization to pay them. Plaintiffs' are noweffectively urging this Court to somehow cross-breed these two distinct pay statutes to producea hybrid mix of the two so ARNG members be compensated.This is a plainly an invitation for can impermissible judicial legislation. Plaintiffs' opposition, at best, demonstratesthat they merelydisagree with the Secretary's longstandinginterpretation of the applicable statutes and the scope of the governingdirectives. TheCourt should reject plaintiffs' understanding, upholdthe Secretary's reasonable 3 interpretations, and reject plaintiffs' claims. 3 We will not reiterate in this brief our alternative position that bars plaintiffs claims pursuant to section 206, i.e__~. Congresshas not appropriated money,nor has DoD obligated and apportioned money,to pay a member the ARNG completing correspondencecourses. Se_._~e of for o~enerallv Defendant'sAppendix ("DA")438-41, Manwiller Deck'~l']] 5-8. Indeed, if the plaintiffs' claims are accepteduponthis point, there wouldbe absolutely no Federal control over the public fisc, because individual state actors wouldnowbe in control ofa si~ificant aspect of the defense budget. Plaintiffs' position blowsa hole through the Anti-DeficiencyAct, 31 U.S.C. § 1341, becauseit leaves an individual state actor in control of obligating funds, regardless of the amountCongress has madeavailable in an appropriation or fund. Likewise, ifDoDhad prescribed correspondencecourses as IDT, DoD wouldhave subjected itself to numerous violations the Federal apportionmentstatute, 31 U.S.C. §§ 1512-1513, 1517, because DOD wouldnot have overall control of its budget, since individuals in the ARNG wouldbe in control of howmany compensable courses they took at any time during the fiscal year. Sere DA548-560. 4

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I.

The United States Is Entitled To Summary JudgmentBecause The Secretary Has Never Prescribed Regulations That Established Individual WorkOn CorrespondenceCourses As Inactive Duty Training A. The Secretary's Prescribed Regulations Governing ARNG Training Do Not SupportPlaintiffs' Claims

Consistent with Congressionalauthority, the Secretary has promulgated regulations that define the nature and scope of equivalent training for the UnitedStates Amay Reserves, Air Force Reserves, ARNG, ANG. Secretary's training regulations are consistent with the nearly and The one-hundred years of legislative history that sets forth the composition,role, and authorized training of the National Guardin the nation's force structure. National Guardtraining is conductedsolely pursuant to Title 32 of the U.S. Code, and is governedby Dep't of Defense Directive 1215.6, Unifoma Reserve, Training. and Retirement Categories, (Mar. 14, 1997) ("DODD 1215.6"); Dep't of Defense Directive 1215.13, Reserve ComponentMember Participation Polic7, (Dec. 14, 1995)("DoDD 1215.13"); Dep't of Defense Instruction 1215.19, UniformReserve. Training and Retirement Category Administration, (Dec. 12, 2000) ("DODI 1215.19"); and, National GuardRegulation (AR)350-1, Trainine: Army National Guard Training, (Jun. 3, 1991) ("NGR(AR) 350-1"). ~ DA637-41, Kohner Decl. ¶¶ 6-12; DA 644-46, Audino Decl. ¶¶ 3-8. In these regulations, the Secretary has prescribed three types of training duty for the ARNG: Active Duty ("ADT"),Inactive Duty Training ("IDT"), and Full~ Time National Gnard duty ("FTNGD"). DA637, KolmerDecl. ¶ 6; DA645, Audino Decl. ¶ 5. 4 Extracts of the directives and instructions are foundin the supplemental appendix. 5 Plaintiffs cannot contend that they completedcorrespondencecourses while on ADT or FTNGD. ARNG members performing ADT FTNGD paid active duty pay pursuant 37 or are U,S.C. § 204. Accordingly,our discussion in this reply will explain whyplaintiffs cannot completecorrespondencecourses pursuant to the Secretary's governingregulations as IDT. 5

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Assuming plaintiffs

were completing correspondence courses as membersof the ARNG,

the only duty status they could have been in wasIDT. TheSecretary has defined IDTto include three sub-categories: regularly scheduled Unit Training Assemblies("UTA"),which are the forty-eight assemblies for drill and instruction that all ARNG units and their members must complete annually under 32 U.S.C. § 502(a)(1); additional IDT; and equivalent training. 1215.19, ¶ 6.2.2; DA638-40, KoNaerDecl. ~I~] 8-10. Furthermore, NGR (AR)350-1, Table 1-2 defines the limited types oflDT that maybe authorized. All ARNG training, whether performed in a pay or non-paystatus, must be pre-approvedby the command either published orders or on Unit Training Schedulesin a detailed process. DODI 1215.19'][ 6.2.2.1; Dep't of Defense 7000.14-R, DoDFinancial Management Regulation, Vol 7A ("DODD 7000.14-R") ¶ 58010 NGR(AR) 350-1 ¶ 2-1C, 201(d)(2); See also National Guard Regulation 37-104-3, Financial Administration: Military Pay AndAllowancesPolicy AndProcedures - Arm,/National Guard, 24 Oct. 2003("NGR 37-104-3"), '~t¶ 1-4, 1-8, 3-1, 3-2. Plaintiffs have not directly stated what IDTstatus they were in whencompleting correspondencecourses. However, only possible status they could claim is equivalent the training. Pursuant to section 206(b), the Secretary has prescribed strict requirementsfor Commander's authorize "equivalent training," and plaintiffs have not met them. Equivalent to training is allowedonly in the following situation: "When individual misses the regularly an scheduledperiod of instruction or duty due to unforeseenemergency situations of a personal nature, the training maybe madeup with pay according to the following guidelines..." NGR (AR)350-1, ¶ 2-1.d.(7); DA640-41, KohnerDecl. ']l~110-11. Furthermore,the Secretary, consistent with Congress'guidance,has strictly limited each soldier to four equivalent training 6

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assembliesper fiscal year. Id_~. In addition, when performing equivalenttraining, the soldier or airmanmustbe in uniform,and the training mustbe of a "similar nature" to the missedtraining. Id__~.In other words,like all IDT,this is a fornaal, supervised periodof training. Finally, to perfomaequivalent training, in addition to the training schedule, the soldier's commander must specifically authorize the equivalent training in writing, and certify the successful performance of the training.Id_~. Plaintiffs' oppositioncompletely fails to assert any facts to showthat the plaintiffs met any of the standards tbe Secretary established for their individual workupon correspondence courses to qualify as IDTtraining. First, despite contendingthey were "required" to complete correspondence courses, nowhere their opposition do plaintiffs provide copies of any signed in orders from their commanders authorize them to take the con'espondence that courses as equivalent training. 6 Second,none of the plaintiffs contend that their completedcorrespondence course workwas s~mflar to the r%ularty scheduled unit training requirement that they missed. Third, none of the plaintiffs have alleged that whenthey were workinguponcorrespondence courses that they were in uniform. Fourth, none of the plaintiffs have alleged that they worked upon their correspondencecourses for a minimum two hours at a time. Finally, none of the of plaintiffs baveprovidedany credible discussion that refutes the UnitedStates' well-supported position that ARNG training is unit, and not individually based. Theplaintiffs' failure to provide any evidence that demonstrates compliancewith the standards mandatedby the Secretary in 6 Thefailure to provideany evidencethat plaintiffs wereon written orders by a competentauthority is fatal. O'Hanlon United States, 11 C1. Ct. 192, t96-97 (1986); Letter v. Lieutenant William E. Archer. Jr., B-165712,1969 Comp.Gen. WL 4500 (1969); cf. Doe United States, 372, F.3d 1347, 1362-63(Fed. Cir. 2004) (rejecting claim by DoJattorneys overtime pay because written orders by a competentauthority were not issued). 7

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DoDI1215.19and NGR(AR) 350-1 is fatal to their claims, and accordingly, the United States entitled to summary judgment. B. The Secretaries Have Never, Nor Could They, Invoke Their Authority Pursuant To Section 502(t) Of Title 32 To Establish ARNG Training That Not Unit-Based Training

Facedwith the over~vhelming evidencein the historical legislative record that supports the Secretary's governingregulations that mandate unit based training, or the equivalent thereof, for members the ARNG, of plaintiffs' opposition rightfully concedesthat 32 U.S.C. § 502(a) only authorizesunit-basedtraining. Se___~e Opp.p. 5, 33. This candidconcession fatal to P1. is plaintiffs' claims, becauseit leaves plaintiffs gaspingfor an authorizingtraining statute. However, statute uponwhichplaintiffs choose to rely, 32 U.S.C. § 502(0, does not support the their claims.Se___~e Opp. 5-12. P1. pp. Theplaintiffs' contention that section 502(0 allows the Secretary to prescribe individual training fails becausethe Secretary has never prescribed an individual's self-paced work complet~n~correspondence courses as the Full-T~meNatmnal Guard" or other duty that 32 U.S.C. § 502(0 is intended to cover) DA637, KolmerDecl. ¶ 6. Section 502(0 has been specifically used as authority in ve~2¢limited circamstances to allow ARNG members perform to

7 Other sections of Title 10 and Title 32 use the term "other duty" in similar fashion. The definition of"full-time National Guardduty" in both 10 U.S.C. § 101(d)(5) and 32 U.S.C. § 101(19) includes the tern1 "other duty." Also, the definition of"Active Guardand Reserve duty" in 10 U.S.C. § 101(d)(6)(a) includes the terna "Other 8 See also Bowen Oistead, 125 F.3d .800, 802 (9tt' Cir. 1997)(noting section 502(0 v. service as full-time duty); Tirado-Acostav. Puerto Rico National Guard, ~ F.3d 852, 853 (1 118 Cir. 1997) (same); Wrigglesworthv. Brumbau~h, F.Supp. 2d 1126, 1128 (W.D. Mi. 2000) 121 (USERRA claim by ANG memberserving upon full-time duty pursuant to section 502(0). 8

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missions or duties other than "training" in a FTNGD status. 9 DA644, AudinoDecl. '~l 4. Indeed, the inherent dangerousnature of these types of missions explains whysection 502(0 was promulgatedin t964: to ensure members the National Guard wouldbe authorized the same of benefits as members the Regular Army Air Force if"they were disabled in line of duty" of and while performingmissions other than "training. ''~° It most certainly wasnot promulgated to provide members the National Guarda vehicle to earn pay that Reservists performingsimilar of activities werespecifically precludedfromreceiving. The t964 amendment 32 U.S.C. § 502 authorized the Secretary to prescribe additional to training or other duty for ARNG members.However,the Secretary's prescription authority pursuant to this section is still limited. According the legislative history, the amendment to establishing section 502(f) was intended to "permit... members the National Guardto of orderedto performtraining or other duty that is in addition to the regularly scheduleddrills of their units. ''~ Moreover,the amendment designedto authorize hospital benefits, pay, and was allowances to protect "members the National Guardwhoincur disability while they are... of performing training or other authorizedduty that is in addition to the regularly scheduleddrills of

9 This duty includes counter-drug duty pursuant to 32 U.S.C. § 112(b) and weapons massdestruction civil support temnspursuant to 10 U.S.C. § 12310(c)(1). ~0 DoD also recognized the limited purpose of section 502(0 and ensured that work has on correspondencecourses is not considered "duty" for expandedmedical benefits of National Guardmembers performing FTNGD training and "other duty" in addition to that in 32 U.S.C. § 502(a). DoDD 1241.1, para. El.l.3. Likewise, 10 U.S.C. § 1475 allows no death gratuity for "reservist" whodies while performingworkor study in connection with correspondencecourse work. ~ S. Rep. 1584, 109 Cong. Rec. 3801 (1964). 9

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''~z units, or the annualperiods of 15 days of active duty for training. their This amendment 32 U.S.C. § 502 was clearly not desi~aed to create a newcategory of to authorized duties that ARNG soldiers could perforna, but rather to pert'nit compensation and medical coverage for ARNG soldiers ~vho were conducting training that was already authorized when amendment proposed,i.e.._~, as plaintiffs admit, unit basedtraining pursuantto the was section 502(a). Indeed, the Senate Amaed Services Committee stated: The committeeanaendmentis not intended to encourage any additional training with pay; instead, its purposeis to make consistent the comparable [training] provisions applicable to the [U.S. Army]Reserve and to the National Gnard. Id. (referring to U.S. Army Reserve tra~nmoauthorized w~th or without pay" in 10 U.S.C. § 683 (now10 U.S.C. § 12315)). '3 Furthernmre, then Secretary of the An-nyCyras Vm~ce gave several examplesof the limited types of additional training or dnties that the amendment wouldpermit. Secretary Vance'sexamplesincluded such additional unit training or duty as a commanders' scheduled inspection of their units, command exercises, and the assemblyof units for additional post neededinstruction and cleaningof equipment. Id__~. at 3803. At bottom,there is nothingin the languageof the statute or legislative history, and there is certainly no governing directive or regulation, that supportsplaintiffs' assertion that section

~-"Id__~. 3800. at ~3 Secretary Vancewasdelegated authority to express the views of the Department of Defense regarding this amendment 32 U.S.C. § 502. to 10

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502(f) authorizes compensation completingcorrespondencecourses.~4 At best, it showsthat for plaintiffs and the Secretary simplydisagree uponhowthis statute shonld be interpreted. It is ~vell-settled that when meaning military regulations and instructions are at issue, the armed the of service's owninterpretation must be given controlling weight and deference, especially whenit has beenconsistently interpreted, like bere, over a long period of time. UnitedStates v. Clark, 454 U.S. 555, 565 (1982); Wronke Marsh, 787 F.2d 1569, 1576 (Fed. Cir.1986), cert. denied, v. 479 U.S. 853 (1986). If the applicable regulations are interpreted by the armedservices in reasonable manner,any challenge to it, even if the plaintiffs maypresent another reasonable interpretation of the regulations, must fail. Wronke Marsh,787 F.2d at 1573. Thus, wherea v. military regulation is snsceptible to equally reasonable constructions, a court maynot substitute an alternative interpretation for the interpretation of the military service. Id_=. C. Plaintiffs' OppositionHighlights The Fact That The Legislative History BehindTitles 32 And37 Supports The Secretary's Interpretation That Congress Has Only Authorized Unit-Based Training

Thedetailed historical overview forth in our openingbrief demonstratesthat the set Secretary has been consistent with Congressionalgui.dance for 100 years whenprescribing training for the ARNG. Plaintiffs again are wrongwhenthey assert that the Government made numerous m~scharactenzatmns the legislative Instory. P1. Opp.p. 29. Indeed, it the of plaintiffs whomischaracterizethe legislative history behindthe Secretary's regulations.

~4 Plaintiffs imply on page 7 of their opposition that Army Regulation("AR")350-1, Training: Ann,/Trainin~AndEducation, 9 April 2003, is such a regulation; however,this regulation does not provide that support. Indeed, it does not apply to the Army Air National and Guard, nor does it ever mentionsection 502(0 anywhere the regulation. in 11

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Plaintiffs' first error is when they arguethat contrary to the Government's position that the Secretary's authority is limited to drill training for members the ARNG, of "section 5(a) the 1948Act expressly authorized the Secretary to prescribe additional, paid training for Guard member beyonddrill and assembly." Id__~. Plaintiffs then, however,contradict themselves, and actually makethe Government's case upon this issue whenthey quote the language of section 5(a), noting that it specifically applies to "members the National Guardof the UnitedStates." of Id_.~. Of course, this is the status the plaintiffs bavemnfrombecauseof the preclusionof section 206(d), so it ironic that they nowseek this status for support. Furthermore,plaintiffs deemirrelevant the Govermnent's accurate portrayal of the legislative history that states Congress defined the global term "inactive duty training" to specifically exclude correspondence courses by arguing that this definition only applies to physical disability payments.P1. Opp.p. 30. A reading of that definition demonstratesthat tbe plaintiffs are wrong here too. In 1949, Congressdefined inactive duty training, whichhas remained this day, as: to any of the training, instruction, duty, or appropriateduties, or equivalenttraining, instruction, duty, or appropriateduties, or hazardous duties performed with or without compensationby members the reserve components the uniformedservices as of of maybe prescribed by the Secretary concernedpursuant to section 501of this Act, or any other provision of law, and in addition thereto shall include the performance special additional duties, of as maybe authorized by competent authority, by such members on a volunteer basis in connectionwith the prescribed training or maintenance activities of the unit to whichthe members are assigned: Provid , That the term "inactive duty training" shall not include workor study perforu~ed by such members in connection with correspondence courses oftbe uniformedservices.

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TheCareer Compensation of 1949("Act of 1949"), ch. 68 I, § 102(i) (emphasisin original), Act 63 Stat. 802, 805. Furthermore,section 501 of the Act of 1949specifically dealt with training duty of members the National Guard, to include provisions governingIDTwithout pay. Id., of § 501(b), 63 Stat. at 826. It is difficult to see fromthe plain lmaguage the legislative history of howthe United States mischaracterizedthese terms. It is even moredifficult to see howthis definition of IDTwasmerelya "gap-filling" provision pertaining solely to the disability provisions of"Section 402(c)" whenthe definition refers not to section 402, but section 501. Compare Opp.pp. 30-31 N. 27 with the Act of 1949, ch. 681 at § § 102(i), 402(c), 50 I; P1. Stat. 802, 805, 817, 825. Plaintiffs also misunderstandthe scope and applicability of the Armed Forces Reserve Act of 1952 ("AFRA 1952"). P1. Opp. p. 31. While the plaintiffs' are correct that AFRA of 1952did not amend compensation the provisions of the Act of 1949, the plaintiffs are wrongby implyingthat Congressdid not continue to evidencea clear intention that completionof correspondencecourses was not compensable duty,15 and that duty included only military service performed in response to competent orders] 6 The ArmedForces Reserve Act of July9, 1952, ch. 608, 66 Star. 481. Indeed, this language, that has been foundin statutes and regulation since 1949, remains unchanged the present.~7 to

~ The Armed Forces ReserveAct of July 9, 1952, ch. 608, § 101(d), 66 Stat. 481 ("Work or study performed by [members the reserve componentsand the Amay Air National of and Guards]shall be deemedinactive-duty training for which compensation not authorized under is the provisions of section 501 of the Career Compensation of 1949, as amended."). Act ~6 Id. § 101(a); Sen. Rep. No. 1795 1952 U.S.C.C.A.N.2005, 2017. ~7 For example,in 1962, whenCongressenacted and codified the provisions of the Career Compensation of 1949 into Title 37 of the U.S. Code, Congress's stated purpose was Act 13

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Thelegislative history set forth in our openingbrief is accurate, and reflects Confess' intent that IDTby the ARNG be conducted in unit assemblies, with other minimum must standards as the Secretary determines. TheSecretary, consistent with this history, has donejust that for the past 100 years, most recently in DoDI1215.19 and NGR(AR) 350-1. DA638-40, KohnerDecl. ~I']I 7-10; DA644-46, AudinoDecl. ¶7 3-8. TheSecretary's determination regardingthis training role should be respected, and the plaintiffs different understanding these of statues and regulation should not supplant the Secretary's consideredinterpretation. II. Plaintiffs HaveMisreadThe Federal Circuit's Decision As A Mandate For This CourtTo Find Liability Against The United States Because RequiredTraining Is Compensable Plaintiffs are wrongwhenthey contend the law of the case has all but decided howranch the UnitedStates shouldpay the plaintiffs. Se__~e Opp.pp. 27-39. TheFederal Circuit has P1. instructed that to be the "law of the case," a matter must have"actually been decided." Auo_ustinev. Principi, 343 F.3d 1334, 1339(Fed. Cir. 2003). The Federal Circuit's opinion was not entered in response to any rtding uponwbat duties or training the Secretary has prescribed for members the ARNG. of Instead, it was in response to this Court's ruling regarding the Court's jurisdiction and whether section 206(d) applied to members the ARNGUS not serving of when Federalservice. Se___~e Clarl____~(, F.3d at 1360-61. 322 Indeed,to rule uponthe Govermnent's motion

to "restate in comprehensive cohesive form, without substantive change, the laws applicable and to the pay and allowances of members the uniformedservices .... " Sen. Rep. No. 1874 1962 of U.S.C.C.A.N.2390. The IDTprovisions of former section 501 were split betweensection 206 (compensation IDT) and section 1002 (additional training or duty without pay). Section for 101 (22) restated, in substance, the definition of IDTexcludingworkor study in connectionwith a correspondencecourse ofa unifonaaed service performedby either members a reserve of component the National Guard. Pay and Allowancesof the Uniforuaed Services, Pub. L. No. or 87-649, § 101(22), 76 Stat. 451 (1962). 14

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that section 206(d) precludedMr. Clark from bringing his suit, the Federal Circuit accepted all well-pleadedfactual allegations as true and dre~vall reasonableinferences in Mr. Clark's favor. Clark, 322 F.3d at 1363. Thus, whenMr. Clark asserted he completed correspondencecourses in his ARNG status, the Federal Circuit assumedthat assertion wastrue for the purposesof deciding the narrowissue before it. Whilethis procedurewasperfectly appropriate in the context of the Government's motionon appeal, it does not establish the law of the case for the purposes of the present dispositive motionchallenging those claims. In this case, the Federal Circuit remanded matter to this Court with specific the instructions to consider conductinga "proceedingon the merits of [plaintiffs'] claim for compensation under section 206(a)." Clark, Id. at 1369. Pursuant to this directive, the Court nowproperly determiningwhat, if any, regulation the Secretary has prescribed as Federally recognized ARNG ANG or inactive duty training. As we demonstrated in our opening brief, and above, the answerto the Federal Circuit's remandquestion as to whetherSecretary prescribed "any" training is: the Secretary has prescribed three types of training and duty for members the of ARNG: active duty, 2) inactive-duty for training, and 3) full-time National Guardduty. 1) DODI 1215.6 ~I 4.3; DODI 1215.19 ~ 6.2.2.; NGR(AR) 350-1 ¶9 2-1, 2-2, 2-3. Self-paced work, by an individual that is not in a unit-basedsetting, and not on written orders, is not a subset of these duty/training statuses.~8 ~8 Contraryto plaintiffs' assertion, the Federal Circuit did not "unequivocally" hold, as plaintiffs claim, "that Guardmembers take correspondencecourse workin [a] Title 32 duty status." P1. Op. p. 37, citing Clark, 322 F.3d at 1368. Indeed, what the Court did state was: [a]t the sametime, Mr. Clark's well-pied complaintalleges that he was required to take correspondencecourses in order to maintain his status in the National Guardor to advancein rank. 15

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A.

Plaintiffs MisreadThe Federal Circuit's Opinion To Amend Plain The Language Of The Statute By Adding The Word"Required"

Not only do plaintiffs ignore the scope of the Federal Circuit's opinion, they attempt to extrapolate rulings unsupported either the languageof section 206 or the court's opinionitself. by Plaintiffs contendthroughouttheir oppositionthat the Federal Circuit has already decided the merits of this case, and in doing so, determined that "required" training, is compensable. P1. Opp.pp. 27-39. Thus, plaintiffs believe that if they were required to completea correspondence course, they must be paid for doing so. TheFederal Circuit obviously did not reach this meritsbased question; instead, it remanded matter to this Courtfor it to make merits finding. the a Clark v. United States, 322 F.3d at 1368. Plaintiffs base their position uponthe languagein the Federal Circuit's opinion, wherethe panel stated: Onremand,of course, Mr. Clark must establish whichclasses the Secretary of the Amay required, if any, and whichclasses he took to satisfy those requirements. Moreover,he must establish the amountof compensation is due under the statute. he Id_~. However, languageis taken out of context, consideringthe posture of the case at that tbat time and other languagein the statute. Moreover, ignores the Federal Circuit's holding that it "[s]ection 206(a)(2) requires paymentequi alent training thatthe Secretary prescribes." v Clark v. United States, 322 F.3d 1358, 1368 (Fed. Cir. 2003) (emphasis added). Oncethose factors are considered, it can be of little doubt that the Federal Circuit meantthat Mr. Clark must establish the training the Secretaryrequired as equivalenttraining.

Id_~. It is difficult to see howtbis sentenceis an "unequivocal" holdingby the Federal Circuit that the plaintiffs completed correspondence courses in a Title 32 status. 16

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Theplain languageof the statute controls, and thus, whethera correspondence course is "required" is irrelevant. Section 206(a)(2) of Title 37 only requires pay for "other equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe." It does not require pay simplyfor actions that maybe required for a variety of reasons; it only requires pay for activities that the Secretary prescribes as IDT. Thus, the key question is whetherthe Secretary has prescribed regulations that establish as IDTfor members the ARNG train on of to his own,in his home,without pre-approvedwritten orders, without being in unifoma, and without any relationship to his unit's published training schedule. That answeris a resounding

III,

ThereIs No Basis For Plaintiffs' Contention That The Secretary Has Reqnired Correspondence Courses As ARNG Training In light of their misunderstanding the scope of the Federal Circuit's opinion, the of

majorityof plaintiffs' oppositionis centeredaroundplaintiffs' attemptsto explain that the Secretary has required ARNG members completecorrespondencecourses. Se_._~eP1. Opp. pp. 6to 8, 20-27. Thesnippets of regulations plaintiffs rely uponfor arguingthis point havebeeneither taken out of context; only apply to members the ARNGUS, not membersof the ARNG; of and or have been simply misunderstood the plaintiffs. Indeed, plaintiffs' reliance uponField Manual by ¯ ¯ ,,The -002, Tramm.~ Force ( " 7-0"), provides an excellent representative FM 7-0, October22, 9 example howthe plaintiffs are simplymisapplying of several military publications to tiffs issue. Initially, it mustbe notedthat FM 7-0, like all Army Field Manuals,by its very nature is merely general guidance. U.S.v. Wolfson, 36 C.M.R. 722, 726 (ABR 1966); U.S.v. Harvey, 659 F.2d 62, 64 (5~h Cir. 1981). Furthermore,FM does not prescribe training activities, it 7-0

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merely establishes overarching general guidance for its members understand howthe Army to ~9 plans and executes training and developsfuture leaders. Again, plaintiffs are simply wrong whenthey point to isolated general statements in FM7-0 and boldly assert that the Army "required National Guard members complete has to [correspondencecourse] to achieve proficiency in the METL the Guardunit to whicheach for member belongs." See P1. Opp. p. 17-19. Nowhere FM7-0 is there any language where the in Secretary has mandatedan individuals workcompleting correspondencecourses as a separate and distinct duty and training status from those set forth in DODI 1215.19and NGR(AR) 350-1. Similarly, nothing in any of the Yearly Training Guidancestates that "[g]uard members must completecorrespondence courses" as a substitute for the specific training and duty requirements the Secretary has set forth in DODI 1215.19 and NGR(AR) 350-1. TheSecretary has interpreted Title 32 to provide himwith the authority to issue training directives that are guided by the over-arching principal that ARNG training is unit-based. DA 636-40, KolmerDecl. ¶¶ 5-10; DA417, McNamara Decl. ~ 4; DA644, AudinoDecl. ¶ 3. Plaintiffs have presented nothing morethan their personal interpretations, whichare based upon snippets of regulations that not only do not say whatplaintiffs interpret themas saying, they also do not alter the uncontrovertedrecord that the Secretary has not prescribed individualized work completed correspondence courses as IDT. Iaa an attempt to demonstratethat the service secretaries have prescribed correspondence courses as equivalent training, plaintiffs also contendtbat they wouldhavebeensubject to ~9 Moreover,ifFM7-0 bad the binding effect of regulations, it wouldmandatedismissal of the plaintiffs' claims pursumatto section 206(d), because FM defines the Reserve 7-0 Component include ARNG to members. DA1326, 1305, FM7-0 ¶ 1-47, p. Glossary-15. 18

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discipline pursuant to the Federal Uniform Codeof Military Justice ("UCMJ") their respective or states' military codeof justice if they had failed to complete correspondence courses, in their civilian status, if orderedto do so by someone a military status. P1. Op.pp. 20-27. The in Federal UCMJ not apply to plaintiffs unless they are in Federal service at both the time of does the offense and at the time of the trial. U.S.v. Wilson, 53 M.J. 327, 328 (CAAF 2000). Similarly, the state military justice codes do not apply becausethey only authorize criminal sanctions for offenses committed a state military duty status. Consequently, in failure to completecorrespondence courses while in a civilian status, even if ordered to do so while in a military duty status, is a non-punishable offense due to lack of jurisdiction, nor could the theoretical existence of state legislated criminal sanctions bind the service secretaries. Thus, regardless of whether a member the state ARNG of does, or does not, complete correspondence z° courses, that member could not face any criminal sanction at the Federal or state level, Plaintiffs also mistakenlyclaim that languagein certain regulations requires themas members the ARNG completecola'espondencecourses to maintain certain standards. First, of to these regulations do not establish that correspondence courses are IDT. Thelanguage in these regulations merely underscores the professional standards a member the military must aspire of to meet. This languagedoes not mandate training, nor provide the authority for any compensation.

,_0 Plaintiffs also are wrong when they state that they are subject to administrative sanctions like an "up or out" policy, denial or reenlistment, or demotion they don't compete if correspondence courses. P1. Opp.pp. 22-27. Onceagain, they misstate the law as it applies to membersof their chosen status, the ARNG. ARNG members not face these sanctions, as we do established in our opening motion,these sanctions, if they apply, do so in their state status. 19

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Furthermore, plaintiffs' interpretation wasactually adopted, it would if effectively mandatecompensation all tasks a service member for must do to maintain the professional standards of the military. For example,under plaintiffs' understandingof the law, a member of the ARNG be compensated the time spent exercising and dieting to maintain the proper must for physical standards. Similarly an ARNG soldier must be paid for time spent polishing his boots, pressing his unifornas, and getting his haircut to maintainproper personal appearancestandards. Additionally, an ARNG soldier must be compensatedfor bathing and shaving, to maintain established personal hygiene standards. Theseexamplesare actually morevalid than plaintiffs' claims here, becauseunlike failing to take correspondence courses, failing to maintain the proper physical and personal appearance,and personal hygienestandards can lead to punitive sanctions. Finally, plaintiffs also are wrong whenthey assert that becausethey can earn retirement points for completingcorrespondence courses, they are obviously in a duty status. P1. Op. p. 38. Members the ARNG not earn retirement points in relation to their membership the of do in ARNG. Retirement points are awarded based upon an individuals membershipin the ARNGUS, pursuant to 10 U.S.C. § 12732. CONCLUSION Accordingly,for the reasons stated above, and in our openingmotion, we respectfully request that the Court uphold the Secretary's detemainationsand ga'ant the Government's motion for summaryjudgment. Respectfully submitted, PETERD. I~EISLER Assistant Attorney General

2O

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DAVID M. COHEN Director s/James M. Kinsella bY Todd M. Hughes JAMES M. IGNSELLA Deputy Director

OF COUNSEL: LT. COL. JOSEPH FETTERMAN MAJORCHRIS SOUCIE MAJOR GARY CORN United States Army Litigation Division Arlington, VA22203-1837 LT. COL. JOSEPH WENDLBERGER United States Air Force General Litigation Division CAPTAIN CHRIS BROWN National Guard Bureau Office of Chief Counsel

s/Douglas K. Mickle DOUGLASK. MICKLE Trial Attorney National Courts CommercialLitigation Branch Civil Division United States Department Justice of Washington, D.C. 20530 Tel. (202) 353-7961 Fax (202) 353-7988

Attorneys for Defendant July 18, 2005

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CERTIFICATE OF SERVICE I herebycertify under penalty of perjury that on July 18, 2005, a copyof the foregoing "DEFENDANT'S ~PLY TO PLAINTIFFS' MOTION SUMI~IARY FOR JUDGI~IENT" with its OPPOSITION TO DEFENDANT'S accompanying appendix was filed

electronically. I understand that notice of this filing will be sent to all parties by operationof the Court's electronic filing system. Parties mayaccess this filing through the Court's system.

s/Douglas K. Mickle Douglas K. Mickle