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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, JAMES P. DAVERN, ROBERT E. FREEBURG, WILLIE R. JOHNSON, ROBERT A. MUSTIN, JOHN DOES 1 through 4, and JANE DOES 1 through 3, individually, and on behalf of all others similarly situated, Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 00-644C (Chief Judge Damich)

UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Richard T. Dorman CUNNINGHAM, BOUNDS, YANCE, CROWDER & BROWN, LLC 1601 Dauphin Street Mobile, AL 36664 Tel: (251) 471-6191 Robert Shulman Helen K. Michael Rachel A. Adams Alan B. Sutton HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Tel: (202) 783-0800 Fax: (202) 383-6610 Charles J. Cooper David Thompson COOPER & KIRK, P.L.L.C. 1500 K Street, N.W., Ste. 200 Washington, DC 20005 Tel: (202) 220-9600 Counsel for Plaintiffs

Date: June 10, 2005

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TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................. III STATEMENT OF THE ISSUES ......................................................................................... 1 INTRODUCTION ........................................................................................................ 2 ARGUMENT .............................................................................................................. 4 I. GENUINE ISSUES OF MATERIAL FACT REGARDING WHETHER PLAINTIFFS HAVE COMPLETED CORRESPONDENCE COURSES "REQUIRED" BY THE SERVICE SECRETARIES PRECLUDE SUMMARY JUDGMENT MOTION...................................... 4 A. Correspondence Courses Completed By Plaintiffs Satisfy the Service Secretaries' Standards for What Constitutes "Required" Individual Training..................................... 5 1. 2. 3. B. The Secretaries prescribe individual training and correspondence courses as "required training." ..................................................................................... 7 The Secretaries prescribe correspondence courses as prerequisites to and substitutes for "in-resident" training programs............................................... 13 The Secretaries prescribe correspondence courses to satisfy Mission Essential Training requirements. ................................................................. 17

Correspondence Courses Completed By Plaintiffs Meet the Government's "Criminal or Administrative Sanction" Standard for What Constitutes "Required" Training. ............................................................................................................. 19 1. 2. 3. 4. Plaintiffs have been ordered to take correspondence courses and were subject to criminal sanctions if they had failed to complete the courses.............. 20 Plaintiffs are subject to the administrative sanction of involuntary separation from service for failing to complete correspondence courses. ........... 22 Plaintiffs have faced the administrative sanction of demotion for failing to complete correspondence courses. .............................................................. 25 Plaintiffs have faced the administrative sanction of denial of or removal from positions of responsibility for failing to complete correspondence courses.................................................................................................... 26

II.

THE LAW OF THE CASE ESTABLISHED BY THE FEDERAL CIRCUIT'S DECISION NECESSITATES REJECTION OF ALL OF THE GOVERNMENT'S OTHER ARGUMENTS. .................................................................................................27

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A.

The Federal Circuit Soundly Rejected The Government's Contentions That Section 206 Does Not Authorize Payment for National Guard Members' Completion of Required Correspondence Courses.................................................... 28 The Federal Circuit Soundly Rejected The Government's Contention That The Secretary's Failure To Prescribe Compensation For Correspondence Courses Could Serve To Preclude National Guard Members' Right To Be Paid For Such Courses. ............................................................................................................. 31 The Federal Circuit's Decision Necessitates Rejection of the Government's Contention that 37 U.S.C. § 206(a)(2) Mandates Pay Only for Make Up Training......... 34 The Federal Circuit Unequivocally Has Ruled That Guard Members Take Correspondence Coursework In Title 32 Duty Status. ............................................... 37

B.

C. D.

CONCLUSION...........................................................................................................39

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TABLE OF AUTHORITIES CASES Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....................................................................................... 4 Alabama Power Co. v. FERC, 160 F.3d 7 (D.C. Cir. 1998) ............................................................................20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................................... 4 Browning v. Navarro, 887 F.2d 553 (5th Cir. 1989)............................................................................28 Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988) ......................................................................................28 Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003).....................................................................passim Clark v. United States, 50 Fed. Cl. 727 (2001), rev'd on other grounds, 322 F.3d 1358 (Fed. Cir. 2003).................................................................... 31, 33 Clark v. United States, No. 02-5062, 2003 U.S. App. LEXIS 18638 (Fed. Cir. Aug. 15, 2003) .........................33 Diefenderfer v. Merit System Protection Board, 194 F.3d 1275 (Fed. Cir. 1999).........................................................................37 Doe v. United States, 47 Fed. Cl. 367 (2000) .................................................................................... 4 Doe v. United States, 16 Cl. Ct. 412, 424 (1989) ..............................................................................33 Duncan v. Walker, 533 U.S. 167 (2001) .....................................................................................36 Logan v. Original Honey Baked Ham Co., 44 Fed. Appx. 484 (Fed. Cir. 2002)...................................................................28 O'Hanlon v. United States, iii

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11 Cl. Ct. 192 (1986) ....................................................................................35 Perpich v. Department of Defense, 496 U.S. 334 (1990) ......................................................................................38 TRW Inc v. Andrews, 534 U.S. 19 (2001) .......................................................................................36 United States v. Menasche, 348 U.S. 528 (1955) ......................................................................................36 STATUTES 10 U.S.C. § 892 ...............................................................................................22 19 U.S.C. § 1619................................................................................................ 4 32 U.S.C. § 62 (1952).........................................................................................30 32 U.S.C. § 502 ......................................................................................... 5, 6, 30 37 U.S.C. § 101(22) ...........................................................................................31 37 U.S.C. § 206 ............................................................................................passim 37 U.S.C § 231 .................................................................................................32 Armed Forces Reserve Components, Pub. L. No. 80-460, 62 Stat. 87 (Mar. 25, 1948) ...........................................................................................30 Career Compensation Act of 1949, Pub. L. No. 81-351, 63 Stat. 802 (1949)................... 31, 32 Department of Defense Appropriations Act, 2004, Pub. L. No. 108-87, 117 Stat. 1054 (2003) ....................................................................................33 Department of Defense Authorization Act, 1985, Public Law 98-525, §1402(a), 98 Stat. 2492, 2620-2621 (1984) ................................................................................37 National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1012 (2001) ................................................................................................. 9 Conn. Gen. Stat § 27-231 (2004)............................................................................22 Miss. Code Ann. § 33-13-483 (2004) .......................................................................23 51 Pa. Cons. Stat. § 6016 (2004) ............................................................................23

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ARMED FORCES MATERIALS AFIADL Catalog, Sept. 17, 2003 ............................................................................16 Air Force Instruction 36-2201, Vol. 2, Air Force Training Program, Training Management, Jan. 13, 2004 .................................................................................................6, 10 Air Force Instruction 36-2201, Vol. 3, Air Force Training on the Job Training Administration, Feb. 4, 2005 ...............................................................................................12 Air Force Instruction 36-2201, Vol. 4, Air Force Training Program, Managing Advanced Distributed Learning, Oct. 23, 2002 .................................................................... 6, 9 Air Force Instruction 36-2301, Professional Military Education, June 27, 2002 ......................6, 15 Air Force Instruction 36-2618, The Enlisted Force Structure, Apr. 1, 1999 ............................................................................. 6, 11, 13, 14, 22 Air Force Instruction 51-604, Appointment to and Assumption of Command, Oct. 1, 2000 .......................................................................................... 13, 22 Air Force Policy Directive 36-22, Air Force Military Training, Mar. 22, 2004 ..................... 13, 22 Air National Guard Instruction 36-2002, Enlistment And Reenlistment In The Air National Guard And As A Reserve Of The Air Force, Mar. 1, 2004 .................................................24 Air National Guard Instruction 36-2502, Promotion of Airmen, Aug. 25, 2000 ......................... 6 Air National Guard Instruction 36-2504, Federal Recognition 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 .........................................................................................................24 Air National Guard Instruction 36-2606, Selective Retention of Air National Guard Officer and Enlisted Personnel, Feb, 28, 1997 ........................................................................25 Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers ..............................................................................................24 Army Regulation 135-205, Enlisted Personnel Management, Sept. 1, 1994 ..............................25 Army Regulation 350-1 Army Training and Education, Apr. 9, 2003 ............................. 7, 8, 15 Army Regulation 350-10, Management of Army Individual Training Requirements and Resources, Sept. 14, 1990 .............................................................................................16 Army Regulation 351-1, Individual Military Education and Training, Oct. 15, 1987 ......................................................................... 8, 9, 11, 13, 15, 16 v

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Army Safety Program, WASHINGTON DC//DAMO-TRZ//1412242 AUG 02//SAB, Sep. 2, 2003........................................................................................... 15, 27 AUOI-H Study Series NR 16, History of the Extension Course Institute, Feb. 1, 1996 ................................................................................................ 9 CTNG Circular 350-01, Oct. 1, 2000 ......................................................................19 Department of the Army Pamphlet, 350-58, Leader Development for America's Army, Oct. 13, 1994 ........................................................................................... 6, 14, 15, 27 Department of the Army Pamphlet 350-59, Army Correspondence Course Program Catalog, Oct. 1, 2000 ............................................................................................. 6, 9 Department of the Army Pamphlet 351-20, Army Correspondence Course Program Catalog, Apr. 28, 2000 ................................................................................ 9, 15, 16, 17 Department of Defense Directive 1035.1, Telework Policy for Department of Defense, Sept. 9, 2002 ................................................................................................... 34, 40 Department of Defense Instruction 4500.9R, Defense Transportation Regulation .......................27 Field Manual 7-0, Training the Force, Oct. 22, 2002 ..........................6, 7, 8, 10, 11, 12, 18, 22 Field Manual 22-100, Army Leadership, Be Know, Do, Aug. 31, 1999.....................................22 FORSCOM/ARNG/USAR Regulation 350-2, Reserve Component Training, Oct. 27, 1999 ................................................................................. 6, 9, 12, 22 Mississippi Army National Guard, Yearly Training Guidance for Training Year 2003 and ShortRange Planning Calendar for Training Year 2003, Jan. 25, 2002.......................................................................................8, 18, 19 National Guard Pamphlet 351-1, Total Army School System, Dec. 20, 1996 ............................. 6 National Guard Pamphlet 600-3, Professional Development and Utilization of Commissioned Officers in the Army National Guard, Dec. 29, 1989 ..................................................... 6 National Guard Regulation 35-6, Selective Retention of Air National Guard Officers and Enlisted Personnel, Oct. 15, 1993 .................................................................................25 National Guard Regulation 350-1, Army National Guard Training, Nov. 30, 1983 ...................................................................... 6, 12, 17, 21, 33, 38 National Guard Regulation (AR) 350-1, Army National Guard Training, June 3, 1991 .............. 6, 7

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National Guard Regulation 351-1, Individual Military Education and Training, Apr. 15, 19876, 17, 33, 34 National Guard Regulation 600-200, Enlisted Personnel Management, Mar. 1, 1997 ......... 23, 24, 26 National Guard Regulation 635-100, Termination of Appointment and Withdrawal of Federal Recognition, July 15, 1983 ................................................................................24 National Guard Regulation 635-102, Officers and Warrant Officers Selective Retention, July 1, 1988 ........................................................................................................25 National Guard Regulation 680-2, Personnel Information Systems, Automated Retirement Points Accounting System, Mar. 1, 1989 ..............................................................39 North Carolina, Yearly Training Guidance for Training Year 1998, Nov. 1, 1996........................18 TRADOC Regulation 350-10, Institutional Leader Training and Education, Aug. 12, 2000 .............................................................................................15 TRADOC Regulation 350-70, Systems Approach to Training, Management, Processes, and Products, Mar. 9, 1999 .................................................................................. 6, 8 OTHER AUTHORITIES AMERICAN HERITAGE COLLEGE DICTIONARY (4th ed. 2002) ............................................37 NEW OXFORD AMERICAN DICTIONARY (2001) ............................................................37 Michael G. Shanely et al., ARMY DISTANCE LEARNING: POTENTIAL FOR REDUCING SHORTAGES IN ARMY ENLISTED OCCUPATIONS (Rand 2001) ................................... 13, 14 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993 unabridged) ............................20 John D. Winkler et al., TRAINING REQUIREMENTS AND TRAINING DELIVERY IN THE TOTAL ARMY SCHOOL SYSTEM (Rand 1999) ...................................................................14

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STATEMENT OF THE ISSUES The government's summary judgment motion (or "Def. Br.") correctly quotes the two issues that the Court's March 19, 2004 Order ("March 19 Order") authorizes the government to address. It should be added, however, that the government has conceded the first issue, stating that, it "assumes that Mr. Clark did not work on any correspondence course during any periods of military duty for which he was `entitled to basic pay,' pursuant to 37 U.S.C. § 204...." Def. Br. at 1, n.1. It also should be added that the second issue identified in the March 19 Order1 must be read consistently with the Federal Circuit's decision, which determined as the law of this case that the government must compensate Guard members for completing required correspondence courses. See Clark v. United States, 322 F.3d 1358, 1368 (Fed. Cir. 2003) (reh'g denied, suggestion for reh'g en banc declined, Aug. 15, 2003). In making this determination, the Federal Circuit necessarily concluded that, to the extent National Guard members have been "required" to complete particular correspondence courses, such courses qualify as "equivalent training, instruction, duty or appropriate duties" for which Section 206(a)(2) mandates pay. Id. at 1365. For purposes of the instant summary judgment proceedings, the Federal Circuit's decision dictates that the only liability questions2 remaining to be resolved are "which classes the Secretary of the Army required, if any, and which classes he [Mr. Clark] took to satisfy those requirements." Id. at 1368. Because the Complaint in this action now has been amended to add eleven plaintiffs, including a number of Air National Guard members, these same two questions apply to these individuals, and also call for a determination of whether these individual have completed correspondence courses required by

1 This issue is "[w]hether, as a matter of law, the correspondence courses Mr. Clark took to qualify as a `regular period of instruction, or period of appropriate duty' under 37 U.S.C. § 206(a)(1) or `equivalent training, instruction, or duty, or appropriate duties' under 37 U.S.C. 206(a)(2)." March 19 Order at 1. 2 The Federal Circuit also left open the question of damages, stating that Mr. Clark "must establish the amount of compensation he is due under the statute." Id. at 1368.

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Secretary of the Air Force.3 INTRODUCTION The government predicates its request for summary judgment motion on incurably flawed arguments failing to provide any support for the drastic relief it seeks. One incurably flawed series of arguments contravene the law of the case established by the Federal Circuit's decision. As discussed in detail in Section II below, all of these arguments attempt to support the erroneous contention that 37 U.S.C. § 206(a)(2) does not mandate pay for National Guard members' completion of required correspondence coursework. Because the Federal Circuit already has rejected each and every one of these arguments expressly or by necessary implication, the arguments cannot support the granting of summary judgment. The government's other incurably flawed arguments underscore that, with respect to the sole remaining liability issue left open by the Federal Circuit's decision, there are, at the very least, material factual disputes precluding summary judgment about whether Plaintiffs have completed required correspondence courses.4 As demonstrated in Section I below, the evidence unequivocally refutes the government's contentions that correspondence courses supposedly involve "voluntary" training. This evidence overwhelmingly confirms that the Service Secretaries have prescribed correspondence courses as required individual training that is necessary to enable National Guard members to perform their individual military functions and to ensure that their units are able to satisfy mission requirements. The government's own regulations, manuals, and websites, as well as the declarations submitted on Plaintiffs' behalf by

3 For purposes of this Opposition, Plaintiffs treat Defendant's arguments regarding the Army National Guard as applicable to the Air National Guard as well. 4 With this brief, as required by Local Rule 56, Plaintiffs also file their Responses to Defendant's Proposed Findings of Uncontroverted Fact ("PFF") and Plaintiffs' Statement of Additional Material Facts Preventing Summary Judgment ("SAMF"). As demonstrated in Plaintiffs' Responses, the government's PFF relies heavily on argument unsupported by evidence or on factual assertions that are disputed. The SAMF presents 103 additional material facts, all supported by citation to record evidence, demonstrating that the government is not entitled to summary judgment. 2

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distinguished officers and other service personnel all confirm this central reality. Any part of this evidence would be sufficient to defeat the government's summary judgment motion. Taken together, the evidence shows that the government's position is completely untenable, and that only Plaintiffs could be entitled to summary judgment on the sole remaining liability issue left open by the Federal Circuit's decision. Reconfirming that the government is not entitled to summary judgment, Plaintiffs have completed correspondence courses that satisfy even the government's own formulation of what constitutes "required" training. According to the government, "required" courses are only those as to which Guard members may be "criminally or administratively sanctioned for not enrolling or successfully completing...." McNamara Declaration ¶ 9, Def. App. 420. This overly narrow formulation erroneously conflates (1) the requirements that have been imposed on National Guard members to complete correspondence courses, and (2) the penalties for failing to satisfy these requirements. Nonetheless, the correspondence courses completed by Plaintiffs have been "required" even under this unduly restrictive formulation because Plaintiffs would have faced criminal and administrative sanctions, including but not limited to separation from the National Guard, for failing to complete such courses. Even on the incomplete record that Plaintiffs have been available to develop without the benefit of deposition and other discovery to which they are entitled,5 the government has failed to meet its burden of 5 In its July 15, 2004 Order, the Court denied Plaintiffs' request for an opportunity to depose the various individuals that submitted declarations in support of the government's summary judgment motion, as well as to conduct deposition and written discovery, by limiting Plaintiffs to propounding requests to produce on a specified number of topics. Pursuant to the Court's Order of July 15, 2004, Plaintiffs served document requests on Defendant on July 19, 2004. Defendant responded on October 4, 2004 with a preliminary set of documents, mostly regulations that Plaintiffs had previously obtained. In the ensuing months, Plaintiffs reiterated their requests and identified specific documents required as responsive to the original document requests. While the Defendant produced specifically identified documents, it did not produce other documents responsive to Plaintiffs' requests. Each time Defendant produced documents, Plaintiffs noted references to other responsive documents, which Plaintiffs then specifically requested. This piecemeal production process continued until the close of the discovery period on February 11, 2005. Because Plaintiffs have been denied deposition discovery, they have been unable to determine whether Defendant fully complied even with the limited discovery obligations imposed by the Court's July 15, 2004 Order. Plaintiffs also have been unable to develop the factual record regarding numerous regulations that Plaintiffs 3

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demonstrating that judgment can be entered as a matter of law. The Court should deny the government's motion and direct this case to proceed, consistent with the Federal Circuit's mandate that the sole remaining liability question to be resolved is which required correspondence courses have been completed by Plaintiffs. ARGUMENT I. GENUINE ISSUES OF MATERIAL FACT REGARDING WHETHER PLAINTIFFS HAVE COMPLETED CORRESPONDENCE COURSES "REQUIRED" BY THE SERVICE SECRETARIES PRECLUDE SUMMARY JUDGMENT MOTION. Well-settled standards dictate denial of the government's summary judgment motion. The Supreme Court has directed that, in reviewing summary judgment motions, courts are not to "weigh the evidence and determine the truth of the matter but [should] determine [only] whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Supreme Court further has directed that any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). Contrary to the government's contentions, these standards apply with equal force to disposition of the question of statutory construction presented here and preclude the granting of summary judgment. See, e.g., Doe v. United States, 47 Fed. Cl. 367 (2000). This Court's decision in Doe is instructive. In Doe, on remand from the Federal Circuit, the Federal Claims Court denied cross-motions for summary judgment in a case principally involving statutory interpretation. Id. at 374. The Federal Circuit had reversed and remanded the court's initial dismissal of the plaintiff's statutory claim, made under 19 U.S.C. § 1619, for compensation provided by informers furnishing "original information" leading to recovery of property by the United States. Id. at 369. Upon remand, the trial court found that summary judgment was not proper because there was a dispute between might have cited in this Opposition, in their Responses to Defendant's PFF and in Plaintiffs' SAMF. In addition, Plaintiffs have been unable to examine any of the government's witnesses about the factual assertions made in the declarations filed in support of the government's summary judgment motion. 4

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the parties regarding whether information supplied by plaintiff qualified as "original" information within the meaning of the statute. Id. at 374. Summary judgment similarly is inappropriate here because there is, at the very least, a material dispute about whether the statutory terms at issue have been satisfied: whether the courses completed by Plaintiffs were "required" or, in the synonymous terms of the statute at issue, "prescribed" by the Secretaries within the meaning of 37 U.S.C. § 206(a)(2). A. Correspondence Courses Completed By Plaintiffs Satisfy the Service Secretaries' Standards for What Constitutes "Required" Individual Training. When it focuses on the liability question properly before this Court, rather than on impermissibly rearguing liability issues already decided by the Federal Circuit, the government relies heavily on the erroneous contention that Guard members ostensibly are required to perform only unit-based training, and that correspondence courses supposedly are voluntary and need not be taken to satisfy mandatory training requirements. See Def. Br. at 20-31. In endeavoring to support these contentions, the government erroneously cites 32 U.S.C. § 502(a) as providing the Secretary's sole authority to prescribe training (Def. Br. at 20-21). Section 502, in fact, authorizes the Secretaries to require both unit training and individual training or instruction. Section 502(a) provides the authorization for requiring unit training,6 while Section 502(f) provides the authorization for requiring other types of training or instruction, including paid, individual training or instruction performed without the Guard member's consent in addition to the unit

6

This statute provides as follows:

(a) Under regulations to be prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, each company, battery, squadron, and detachment of the National Guard, unless excused by the Secretary concerned, shall-- (1) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year. 32 U.S.C. § 502(a). 5

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training required under Section 502(a).7 In keeping with its refusal to acknowledge Section 502(f), the government also mischaracterizes NGR (AR) 350-1, which expressly applies only to "policies and procedures for training units," as the one regulation in which the Secretary of the Army "has prescribed training of the National Guard." Def. Br. 21. Consistent with the authorization to require individual training provided by 32 U.S.C. § 502(f), and as further demonstrated in Section I.A.1 below, there are, in fact, a host of regulations demonstrating that the Secretaries have exercised their statutory authority to prescribe individual training, including correspondence coursework, as an essential component of the military's comprehensive program for training individuals and units to meet war-time mission requirements.8 Indeed, NGR (AR) 350-1, upon which the government itself misleadingly relies, refers to other regulations, such as NGR 351-1, as governing required forms of individual training. See NGR (AR) 350-1, Army National Guard Training, ¶¶ 1-

7

Section 502(f) provides as follows:

(a) Under regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force, as the case may be, a member of the National Guard may-- (1) without his consent, but with the pay and allowances provided by law; or (2) with his consent, either with or without pay and allowance; be ordered to perform training or other duty in addition to that prescribed under subsection (a). Duty without pay shall be considered for all purposes as if it were duty with pay. 32 U.S.C. § 502(f) (emphasis added). 8 A non-exhaustive list of additional regulations governing required individual training of Guard members includes: (1) AFI 36-2201, Vol. 2, Air Force Training Program, Training Management, Jan. 13 2004; (2) AFI 36-2618, The Enlisted Force Structure, Apr. 1, 1999; (3) AFI 36-2301, Professional Military Education, Jun. 27, 2002; (4) ANGI 36-2502, Promotion of Airmen, Aug. 25, 2000; (5) DA Pam 350-58, Leader Development for America's Army, Oct. 13, 1994; (6) DA Pam 350-59, Army Correspondence Course Program Catalog, Oct. 1, 2000; (7) Field Manual 7-0, Training the Force, Oct. 22, 2002; (8) FORSCOM/ARNG/USAR Regulation 350-2, Reserve Component Training, Oct. 27, 1999; (9) National Guard Pamphlet 351-1, Total Army School System, Dec. 20, 1996; (10) National Guard Pamphlet 600-3, Professional Development and Utilization of Commissioned Officers in the Army National Guard, Dec. 29, 1989; (11) NGR 350-1, Army National Guard, Nov. 3, 1983; (12) NGR 351-1, Individual Military Education and Training, Apr. 15, 1987; and, (13) TRADOC Regulation 350-70, Systems Approach to Training, Management, Processes, and Products, Mar. 9, 1999. 6

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1, 2-3, Jun. 3, 1991, App. 403,406. Moreover, at least two additional considerations also contradict the government's contention that correspondence courses purportedly do not constitute a required form of training. First, and as demonstrated in Section I.A.2, the Secretaries of the Air Force and Army have prescribed correspondence courses as prerequisites to and as substitutes for completing required "in residence" training for which National Guard members are compensated. Second, and as demonstrated in Section I.A.3, the Secretary of the Army has included correspondence courses as part of the training that Guard members must complete to gain proficiency in their mission essential task lists ("METL"), and has defined METL training as "training requirements." Field Manual 7-0 at Glossary-16, App. 382. 1. The Secretaries prescribe individual training and correspondence courses as "required training." Contrary to the government's contentions, numerous regulations demonstrate that National Guard training, involves not only required unit training pursuant to 32 U.S.C. § 502(a), which "develops critical components of combat readiness,"9 but also required individual training pursuant to 32 U.S.C. § 502(f), which "[p]roduces soldiers capable of performing [their] military occupational specialty (MOS)" and other tasks. AR 350-1 ¶¶ 1-8.d(1) and 1-8.d(2)(c), App. 303. In fact, National Guard training and education, which is the "top peacetime mission" for National Guard commanders, has three "pillars:" collective training (unit training); individual training; and self-development training. See AR 350-1 ¶¶ 1-7.b, 1-9.a, App. 302,304; see also Field Manual 7-0 ¶¶ 1-19, 1-20, App. 368-69 (discussing the importance of each pillar to "force readiness" and successful execution of "any assigned mission"). The government's unsupportable contention that unit training is the only type of required military training ignores the individual training and self-development training pillars of the National Guard training and education system and the function these 9 AR 350-1, Army Training and Education, Apr. 9, 2003, ¶ 1-8.d, App. 303; see also Field Manual 7-0 ¶ 11, App. 366. Field Manual 7-0 constitutes the "Army's capstone training doctrine and is applicable to all units, at all levels, and in all components [including the National Guard]." (Id. preface at iv.), App. 365. 7

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pillars serve as "the foundation on which" the military "build[s] and conduct[s] [its] collective training program." Mississippi Army National Guard, Yearly Training Guidance for Training Year 2003 and Short-Range Planning Calendar for Training Year 2003, at p.4, ¶ 9.d, Jan. 25, 2002, App. 390. Underscoring the importance of individual training, including correspondence courses, to fulfilling military education requirements, regulations disregarded by the government establish that the Secretary of the Army has assigned to the Commanding General of the U.S. Army Training and Doctrine Command ("TRADOC") the task of developing and executing "individual training to meet the Army's individual training goal[s]." AR 350-1 ¶ 2-20.x, App. 305. To ensure that service personnel receive such required "individual training" and instruction, (AR 350-1 ¶ 1-8.d(2)(c), App. 303 (emphasis added)), TRADOC has designed the Total Army Training System ("TATS"), and has designated the "non-resident" Army Correspondence Course Program ("ACCP") as an essential component of TATS, which is "required in support of work place learning" (emphasis added).10 AR 351-1, Individual Military Education and Training Oct. 15, 1987 ¶ 7-6.a, App. 322. See TRADOC Regulation 350-70, Systems Approach to Training, Management, Processes, and Products, Mar. 9, 1999, Chapter VI-9-1 at Introduction, App. 445. The required individual training that Army Guard members obtain through TATS includes "standard resident and nonresident [correspondence course] training and education...." Field Manual 7-0 at Glossary-15, App. 381. Also contrary to the government's contention that correspondence courses supposedly are voluntary (Def. Br. at 51-53), the Secretary of the Army has differentiated ACCP courses taken by active Guard members from voluntary programs, by noting that, in contradistinction to the ACCP: 1) "[t]he Army's voluntary off-duty education programs are provided through ACES [the Army Continuing Education System;

10 The "nonresident" training or programs are synonymous with correspondence work. See, e.g., AR 3511, AR ¶ 7-6.a., App. 322 ("Nonresident (correspondence) programs provide knowledge ... required in support of work place learning."). 8

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and 2) "[e]nrollment for retirees in ACCP instruction is voluntary." AR 351-1 ¶¶ 7-7.b, 7-8.a, App. 322 (emphasis added). In contrast to retirees, Plaintiffs completed ACCP correspondence courses to satisfy onduty Guard training requirements.11 The Secretary of the Air Force likewise explicitly has recognized that the Air Force correspondence course program, currently known as the Air Force Extension Course Program ("ECP"), is a mandatory training program. See AFI 36-2201, Vol. 4, Air Force Training Program, Managing Advanced Distributed Learning, ¶ 1.4, Oct. 23, 2002, App. 239. As one report explains, ECP, when created in 1953, was considered a "voluntary" program, but, owing to the important role ECP plays in satisfying essential training requirements, has, since 1963, been "mandatory." AUOI-H Study Series NR 16, History of the Extension Course Institute, Feb. 1, 1996, at 2-3, App. 327-28. Among the required forms of individual training satisfied by correspondence courses, duty qualification has been identified a particular "priority" for National Guard members. Field Manual 7-0, ¶ 1-49, App. 373; see id. at ¶ 4-22, App. 379. For Army Guard members, such required correspondence coursework involves task-based training for particular military occupational specialties (or "MOS"). See, e.g., Clark Decl. ¶ 7, App. 2-3; Jane Doe 1 Decl. ¶ 8, App. 84-85.

11 The government argues that the ACCP applies to members of the National Guard of the United States, but not to members of the "National Guard." See Def. Br. at 28. For support it cites DA PAM 350-59, Oct. 1, 2002. However, this version of the ACCP regulation was promulgated after Congress's December 28, 2001 amendment to 37 U.S.C. § 206, which made discretionary what had been a mandatory obligation to pay members of the National Guard for completing required correspondence courses. See National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1012, 1133 (2001); see also Clark, 322 F.3d at 1362, n.1. Regulations promulgated before the 2001 amendment confirm that the Army Correspondence Course Program applies to members of the "National Guard." See, e.g., DA Pam 350-59, Army Correspondence Course Program Catalog, Oct. 1, 2000 ("Applicability. This pamphlet applies to active duty military of all branches, foreign military, Army National Guard, Reserve personnel...."), App. 337; DA Pam 351-20, Army Correspondence Course Program Catalog, Apr. 28, 2000 (same), App. 345. That the ACCP applies to members of the "National Guard" is consistent with the Federal Circuit's ruling that "Mr. Clark is seeking compensation for correspondence courses taken while in service to the Alabama National Guard and not the National Guard of the United States." Clark, 322 F.3d at 1368 (emphasis added). 9

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For Air Guard members, this type of required task-based individual training is achieved through Career Development Courses ("CDCs"), which are available only as correspondence courses and instruct Air Guard members in their job specialties, identified by Air Force Specialty Codes ("AFSCs"). See, e.g., Davern Decl. ¶ 5, App. 23; Jane Doe 1 Decl. ¶¶ 7- 9, App. 84-85. In describing enrollment procedures for these courses, the Air University website explains that only those members who are required to take these courses may sign up: Air Force Active Duty, National Guard, and Air Reserve enlisted personnel may not enroll voluntarily in a CDC... . All CDC enrollments for Active Duty Air Force, Air National Guard and Air Force Reserve enlisted personnel will be submitted through the training office utilizing the MILPDS and PC III, and must be mandatory. See Air Force Institute for Advanced Distributed Learning Catalog, Apr. 21, 2005, http://www.maxwell. af.mil/au/afiadl/curriculum/catalog/html/restrictions.htm (emphasis added). The Air University website12 also lists a significant number of Air Force job specialties that can be satisfied only by taking CDCs. See AFSC listing, Jan. 31, 1997, updated May 5, 2005, http://www.maxwell.af.mil/au /afiadl/ curriculum/ catalog/combafsc_fr.htm; AFIADL Career Development courses, Apr. 25, 2005 http://www.maxwell.af.mil/au/afiadl/ curriculum/catalog/ html/cdc00.htm. Advancement training, as well as professional and leadership development, which also are achieved through correspondence coursework, represent additional forms of individual training that have been identified as vital to ensuring unit readiness. See, e.g., Field Manual 7-0 ¶ 1-24, App. 370 ("leader training and leader development are integral parts of unit readiness."). Such professional military education courses, which Guard members must complete to advance in rank, are required forms of individual training because such courses serve to "develop[] Army leaders," and "to ensure [leaders] are prepared for success in their next assignment and higher-level responsibility." Field Manual 7-0 ¶ 1-29, App. 371-72. The Secretary of

12 Air Force Institute for Advanced Distributed Learning ("AFIADL") posts official guidance and policy on its website. See AFI 36-2201, Vol. 4 ¶ 1.4.11, App. 239. 10

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the Army accordingly has prescribed that all Army Guard personnel are responsible "for improving their professional knowledge" and has identified "nonresident instruction" achieved through correspondence coursework as the primary method to accomplish this task. AR 351-1 ¶ 7-7.a., App. 322 Air Force regulations similarly mandate that Air Guard members are required to "[s]ecure and promote professional military education ... for themselves and subordinates to develop and skills and professional development." AFI 36-2618, The Enlisted Force Structure at 4.1.3, April 1, 1999, App. 259; see Davern Decl. ¶ 9, App. 25. For officers, professional development education provided through correspondence courses also gives "indispensable" training in the skills necessary to fulfill responsibilities as officers and leaders within the Guard. John Doe 2 Decl. ¶¶ 8, 11-13, App. 162. These professional development courses improve "each officer's ability to analyze and solve military problems ... to interact and coordinate as a member of a staff ... to communicate," and to understand "Army organization, operations and procedures." Jane Doe 3 Decl. ¶ 10, App. 140. Both the Secretaries of the Army and Air Force, therefore, have directed that all Guard officers, including noncommissioned officers, warrant officers and commissioned officers, are "responsible for training themselves through personal self-development." Field Manual 7-0, ¶ 1-19, App. 368-69; see also AFI 36-2618 ¶¶ 4.1, 4.1.2 and 4.1.3, App.259. The service Secretaries require Guard members to complete all of these types of individual training provided through correspondence courses because Guard members need this training to perform their military functions. As Plaintiff Brigadier General Willie R. Johnson explains, Guard members would not be qualified to perform their duties and "could not be deployed with their units to meet wartime requirements" without the individual training provided through military correspondence courses. Johnson Decl. ¶31, App. 66; see also Jane Doe 1 Decl. ¶ 2, App. 82-83; John Doe 4 Decl. ¶ 2, App. 182 (explaining that "[t]he Army required me to take [military correspondence courses] because without them I could not do my job," and that, without such required correspondence course training, John Doe 4's "effectiveness as an officer and a leader would" have been "diminished and the lives of the men and women under [his] command would 11

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be placed at greater risk"). Both the Secretary of the Army and Air Force have placed responsibilities on Guard commanders to ensure that their subordinates complete the individual training required for duty qualification and to achieve other necessary competencies. Army Guard and Air Guard commanders are responsible for ensuring all unit personnel are trained to perform their respective functions.13 To ensure that individual training requirements are satisfied, the Secretary of the Army further has authorized commanders to "order" Army Guard members to perform "supplemental training." NGR 350-1 ¶ 1-2, App. 398. Supplemental training includes training conferences, training seminars, and, most notably, the correspondence courses within the Army Correspondence Course Program. Id. ¶¶ 1-2, 45.e., 4-11, App. 398,400-01. The Secretary of the Air Force similarly has delegated authority to Air Guard officers and noncommissioned officers to give lawful orders in the exercise of their duties, which specifically includes completion of proficiency training and professional military education courses through correspondence coursework. See AFI 36-2618 ¶¶ 3.1.1-3.1.3, 4.1.1-4.1.3, App.258-59; AFI 51-604, Appointment to and Assumption of Command, ¶ 4.2.12, Oct. 1, 2000, App. 265; Air Force Policy Directive 3622, Air Force Military Training, ¶ 3.6, Mar. 22, 2004, App. 269. Mr. Clark and other Plaintiffs as members of the Army National Guard and Air National Guard have completed numerous correspondence courses to satisfy the foregoing individual training requirements. See Plaintiffs' Declarations, App. 1 ­ 213. Plaintiffs' completion of such courses precludes the granting of the government's summary judgment motion.

13 See FORSCOM/ARNG/USAR Regulation 350-2, at ¶ 1-4.c, App. 387; AFI 36-2201, Air Force Training Program on the Job Training Administration, Vol. 3, ¶ 4.1, Feb. 4, 2005, App. 236. See also Field Manual 7-0, ¶¶ 1-51, App. 374 (commanders must integrate "institutional, operational, as well as individual selfdevelopment resources to train combat ready units"); ¶ 1-19, App. 368-69 (commanders have the "responsibility" to "train soldiers and develop leaders" to ensure their units can perform their mission). Consistent with this responsibility, Army Guard commanders have been directed to ensure that their "command climate" reflects training as the "number one priority." Field Manual 7-0, ¶ 1-31, App. 372. 12

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2. The Secretaries prescribe correspondence courses as prerequisites to and substitutes for "in-resident" training programs. The regulations establishing that the Secretaries have prescribed correspondence courses as prerequisites to and substitutes for obtaining the competencies achieved in required in-resident training programs also refute the government's contention that correspondence courses supposedly are voluntary. As these regulations make clear, Army correspondence courses provide an "equal level of attainment with resident instruction" and are "required" to: (1) Enable personnel of all Army components to obtain or further their military education. (2) Provide education which must be completed as a prerequisite for promotion of ARNG and USAR personnel not on active duty. (3) Accommodate and supplement skill progression and MOS functional courses. These courses provide for "training up" of soldiers to support duty position specific skills in career assignments prior to attendance at resident schools or when resident school is not available or feasible. AR 351-1 ¶ 7-6.a, App. 322.14 Air Force correspondence courses similarly satisfy training requirements. Indeed, Air Guard noncommissioned officers have been directed to "seek every opportunity for continued professional development (by in-resident and/or correspondence)" courses, and have been authorized to satisfy these training requirements through completion of correspondence courses. AFI 36-2618 ¶¶ 5.1.2, 5.2.2, 6.2.2, App. 260-63. The service Secretaries utilize correspondence courses to complement resident instruction because resident training alone is insufficient to satisfy all training requirements for all Guard members. As one Defense Department regulation explains, "[i]nstitutional training and education" must ... "[p]rovide the

14 Army studies have also found that distance education technologies produce students with equivalent or superior levels of knowledge than students of in-resident instruction for many subject areas. MICHAEL G. SHANELY ET AL., ARMY DISTANCE LEARNING: POTENTIAL FOR REDUCING SHORTAGES IN ARMY ENLISTED OCCUPATIONS 22 (Rand 2001), App. 436. 13

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right mix of resident and nonresident education. We cannot afford to educate everyone or teach everything in the institution." DA Pamphlet 350-58 at 3, App. 334. As a study commissioned by the Army similarly found, many students cannot satisfy individual training requirements through in-resident courses because "not enough school seats were allocated to their unit...." JOHN D. WINKLER, ET AL., TRAINING REQUIREMENTS AND TRAINING DELIVERY IN THE TOTAL ARMY SCHOOL SYSTEM 60 (Rand 1999), App. 446. By serving as substitutes for in-resident programs, correspondence courses, along with other types of distance learning programs, make up for the chronic shortage of available in-resident slots for enlisted professional development courses. See MICHAEL G. SHANELY, supra, at xix, App. 435; see also Johnson Decl. ¶ 24, App. 63 ("Resident slots are not available in sufficient quantity to meet the demand of all of the Guard members who are required to complete these courses."). As another means of addressing the chronic shortage of in-resident slots, the Service Secretaries also have prescribed individual training courses of instruction that are available only as correspondence courses. For example, the CDCs that must be completed by Air Guard members can be taken only through correspondence coursework. There similarly are numerous required Army correspondence courses for which there is no in-resident option.15 The service Secretaries treat correspondence courses as educational "equivalents" to required in-resident courses for which Guard members always have received compensation. See, e.g., Johnson Decl. ¶ 22, App.

15 These courses include, among others: (1) the Commander's Safety Course, which must be completed by company grade Guard commanders prior to assuming their commands in the Army National Guard (see Army Safety Program, Sep. 2, 2003, App. 323-25); (2) a "mandatory nonresident course [for warrant officers] that must be completed prior to attending the resident" portion of the Warrant Officer Advanced Course (AR 350-1 ¶ 3-40.a, App. 307-8; DA Pam 351-20 ¶ 4-99.b, App. 358); (3) Phase I of the Battalion/Brigade Pre-Command Course (see U.S. Army Human Resources Command, Pre-Command Smart Book, June 2005, Oct. 13, 1994, at https://www.perscom.army.mil/ Opmsc/PCC-Descriptions.htm); DA Pam 350-58 at 17; and (4) several mandatory correspondence courses for Army Guard paralegals. See DA Pam 351-20 ¶¶ 4-76, 4-77, 4-78, App. 345 (requiring completion of three separate courses for Army Guard paralegals before attendance at the basic noncommissioned officer and advanced commissioned officer courses designed for their MOS). 14

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62; Jane Doe 2 Decl. ¶¶ 9, 28, App. 110,115.16 To safeguard this equivalent status, the Secretary of the Army has prescribed that "[d]iplomas and certificates issued will not reflect nonresident [training]. They will contain only the title of the course, to preclude resident courses from being recognized more favorably than other courses." AR 351-1 ¶ 1.9.a.7, App. 314. Army Guard members taking nonresident courses also are evaluated using the same form used to evaluate students of resident courses. Id. ¶ 1-12.a, App. 315. The Secretary of the Air Force similarly has directed that "nonresident programs mirror resident programs to the extent practical." AFI 36-2301 ¶ 2.7.9, App. 242. Also underscoring that correspondence courses are a required form of individual training is the fact that correspondence courses, like in-resident courses, are identified as "training requirements" in the "Army Individual Training Requirements and Resources System." ("ATRRS"). The Secretary of the Army has specified that courses representing training requirements be loaded into ATRRS, and this "training requirements" system contains a catalog of resident and nonresident training courses. See AR 350-10, Management of Army Individual Training Requirements and Resources, Sept. 14, 1990, ¶ 2-5.a, App. 311 ("Individual training requirements will be developed and entered directly into the ATRRS database....") That correspondence courses serve the same training purposes as other required forms of military training likewise is demonstrated by the fact that, as with in-residence programs and other types of schooling, the Secretary of the Army does not permit Guard members to sign up for nonresident or correspondence courses if the member has already attained the competencies taught in the course by some other means. See AR 351-1 ¶ 3-8.a(2), App. 320 ("Persons who receive constructive or equivalent credit 16 See also, e.g., AR 350-1 ¶ 3-28.b ("The nonresident CGSOC [Command and General Staff Officer Course] is equivalent to the resident course for satisfying career schooling requirements.") (emphasis added); AR 351-1 ¶ 3-6.c(2)(a) ("The Corresponding Studies Course curriculum [of Army War College] closely parallels the content of the Resident Course.") and 3-6.c(8)(e) ("Graduates of the Corresponding Studies Course are given equal consideration with Resident Course graduates for assignments."); TRADOC Regulation 350-10, Institutional Leader Training and Education, Aug. 12, 2002, ¶ 3-5.b ("Nonresident (correspondence and distributed classroom). "The nonresident version is equivalent to the resident course for satisfying career schooling requirements.") (emphasis added). 15

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for a course are not eligible or required to attend the respective resident or nonresident, or correspondence course.") (emphasis added). Indeed, the Secretaries have failed to treat correspondence courses as "equivalent to" these other forms of required individual training in only one respect: while members receive pay for completing individual training in classrooms, they receive no pay for completing individual training by correspondence, contrary to the mandate of 37 U.S.C. § 206(a)(2). Both the Army and Air Guard plaintiffs have completed required leadership development courses through correspondence coursework as full substitutes to resident courses.17 Since 2000, ATTRS training requirements have been maintained on an on-line database. See https://www.atrrs.army.mil/atrrscc/historical.asp. 17 of 24 of correspondence courses completed by the Army Guard Plaintiffs, including numerous subcourses, are listed in this online ATRRS database. See App. 447-469. Other correspondence courses completed by Army Guard plaintiffs are identified in previously maintained ATTRS paper records. In addition to the leadership courses discussed above, these courses include several multi-phased leadership development courses prescribed by the Secretary of the Army that involve both resident phases of instruction and phases available only through correspondence coursework.18 The Army Guard Plaintiffs also have completed correspondence courses that are prerequisites to

17 These correspondence course substitutes for required leadership development taught in resident courses include: Command And General Staff College, DA Pam 351-20 ¶ 4-60, App. 352-53, Noncommissioned Officer Academy Course, AFIADL Catalog, pp. 20-24, App.215-19, Senior Noncommissioned Officer Academy Course, AFIADL Catalog, pp. 25-28, App. 220-23, Squadron officer School, AFIADL Catalog, pp. 28-31, App. 223-27, and Air Command and Staff College, AFIADL Catalog, pp. 32-35, App. 227230. The Secretary of the Air Force has also prescribed a nonresident version of Air War College. See AFIADL Catalog, pp. 35-37, App. 230-232. 18 These correspondence course include: RC Basic Noncommissioned Officer Course (Phase II of III), DA Pam 351-20 ¶ 2-244, App. 349, Advanced Noncommissioned Officer Course (Phase II of III), DA Pam 351-20 ¶ 2-243, App. 349, Warrant Officer Advanced Course (prerequisite), DA Pam 351-20 ¶ 4-99, App. 358, RC AMEDD Officer Advanced Course (Phase I of II), DA Pam 351-20 ¶ 4-13, App. 350-51, RC Infantry Officer Advanced Course (Phase I of II), DA Pam 351-20 ¶ 2-125, App. 346, RC Ordnance Officer Advanced Course (Phase I of II), DA Pam 351-20 ¶ 2-194, App. 347, and Army War College (Phases I and III of IV), DA Pam 351-20 ¶ 4-96, App. 357-58. 16

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participating in required in-resident training programs. John Doe 1 Decl. ¶ 7, App. 150. The Air and Army Guard Plaintiffs' completion of these courses also necessitates denial of the government's summary judgment motion.19 3. The Secretaries prescribe correspondence courses to satisfy Mission Essential Training requirements. Also demonstrating the fallacy of the government's contention that correspondence courses ostensibly are voluntary are the regulations establishing that the Secretary of the Army has required National Guard members to complete such courses to achieve proficiency in the METL for the Guard unit to which each member belongs. A METL is a list of collective tasks "in which an organization has to be proficient to accomplish an appropriate portion of its wartime operational mission." Field Manual 7-0, ¶ 3-1, App. 376. The Secretary of the Army has characterized training that is "necessary to achieve and sustain METL task proficiency" as a "training requirement." Field Manual 7-0, ¶ 4-5, App. 378; see also Clark Decl. ¶ 5, App. 2 ("In order to achieve competency in the tasks specified on the METL, each soldier must complete individual training and unit training."). The Secretary of the Army has delegated its authority to require or direct members of the National Guard to perform training or instruction based on each unit's METL to Guard commanders. Field Manual 7-0, ¶ 2-2, App. 375 ("Commanders are responsible for the training and performance of their soldiers and units."), ¶ 3-30, App. 377 ("The METL provides the foundation for the organization's training plans"). Commanders must ensure that collective and individual training focuses on the unit METL. Field Manual 70, ¶ 1-4, App. 367; see also John Doe 1 Decl. ¶ 3, App. 149. To satisfy achieve and sustain METL proficiency, Army regulations require commanders to develop training plans that "result in proficient 19 For example, Plaintiff John Doe 1 was required to complete a mandatory prerequisite correspondence phase of the Warrant Officer Advanced Course before he could attend the resident portion of the course, which all Army and Army National Guard warrant officers are required to complete between three and nine years of warrant officer service. John Doe 1 Decl. ¶ 10, App. 150; see also NGR 351-1, Army National Guard Training, ¶ 3-6, Apr. 15, 1987, App. 410. 17

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individuals, leaders, and units." Field Manual 7-0 ¶ 2-2, App. 375. Commanders prioritize and refine their training plans in Yearly Training Guidance ("YTG") memoranda that specify collective, individual and institutional training that members are required to perform in the following year. Field Manual 7-0 ¶ 4-44, App. 380; see also John Doe 1 Decl. ¶ 4, App. 149. YTG memoranda, in turn, specify that Guard members must complete correspondence courses for duty qualification and leadership development. See e.g., Mississippi Army National Guard, Yearly Training Guidance for Training Year 2003 and Short-Range Planning Calendar for Training Year 2003, Jan. 25, 2002, at 4, ¶ 9.d, App. 389. In fact, YTG documents identify duty qualification and leadership development courses as higher in priority than unit and "collective training." See, e.g., North Carolina Yearly Training Guidance for Training Year 1998, Nov. 1, 1996, at 1, ¶ 5.a. App. 430 ("[Duty MOS qualification] training must and will take priority over all other types of training." (emphasis added); Connecticut National Guard, Circular 350-0101, Training Year 2002 & Training Year 2003 Command Training Guidance and Five Year Training Calendar, Oct. 1, 2000, at ¶ B-2, App. 330 ("All Connecticut units must strive to achieve maximum DMOS qualification. To achieve this objective, units must ... [e]nroll non-MOSQ soldiers in an MOS producing course."); Mississippi ARNG YTG for 2003, at 4, ¶ 9.d(1), App. 390. As Plaintiff Brigadier General Johnson similarly attests, commanders satisfy METL training requirements primarily by instructing Guard members to complete the relevant correspondence course(s). Johnson Decl. ¶ 31, App. 66. As Brigadier General Johnson further explains, correspondence instruction completed by Army Guard members serve to achieve METL proficiency by developing members' leadership capabilities and by qualifying them in their military specialties. See Johnson Decl. ¶ 20, App. 61; see also Clark Decl. ¶ 7, App. 2-3 ("Task specific education is taught in qualification and upgrade courses designed specifically for the Military Occupational Specialty ("MOS") relevant to each member's position. Members complete these courses so that the unit can accomplish the tasks set out in the METL."); John Doe 1 Decl. ¶ 12, App. 151. The fact that correspondence courses also serve to satisfy METL requirements, which 18

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constitute required training, reconfirms that the government's summary judgment motion should be denied. B. Correspondence Courses Completed By Plaintiffs Meet the Government's "Criminal or Administrative Sanction" Standard for What Constitutes "Required" Training. The government's own formulation of what constitutes "required" military training underscores that it is not entitled to summary judgment. According to the government, the only forms of "required training" are those for which criminal or administrative sanctions may be imposed if the training is not successfully completed. As Command Sergeant Major ("CSM") (Ret) Thomas McNamara perhaps most clearly expresses this formulation (see Def. App. at 415-436), correspondence courses are ostensibly not required because no Guard member "can be criminally or administratively sanctioned for not enrolling or successfully completing these courses." Def. App. at 420, ¶ 9. The government's overly narrow formulation confuses two distinct concepts: (1) the making of a rule, which is what is denoted by both the term "require" utilized by the Federal Circuit in its Clark decision and the term "prescribe" utilized in 37 U.S.C § 206; and (2) the consequences of failing to comply with a rule, the sanctions alluded to by the government.20 As the regulations and other evidence discussed above also demonstrate, correspondence courses constitute a required form of individual training, wholly apart from the sanctions may be imposed upon Guard members for failing to complete them. Nonetheless, even under the government's unduly restrictive formulation of what constitutes "required training," there is a material fact dispute necessitating denial of the government's summary judgment

20 The term "prescribe," which means "[t]o lay down authoritatively as a guide, direction, or rule of action; to impose as a peremptory order; to dictate; appoint; direct," is synonymous with the term "require." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1792 (1993 unabridged). Black's Law Dictionary confirms that "prescribe" means to "To lay down authoritatively as a guide, direction, or rule; to impose as a peremptory