50 Fed. Cl. 727 | Fed. Cl. | 2001
OPINION
I. Introduction
This action is before the Court on Defendant’s Motion to Dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) of the Court of Federal Claims (RCFC) or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(4). Defendant contends that 37 U.S.C. § 206(d) bars Plaintiff from receiving compensation for correspondence courses because Plaintiff is a member of a reserve component. Defendant also argues that 37 U.S.C. § 206(a) does not mandate such compensation. Defendant additionally states that the definition of “inactive-duty training” in 37 U.S.C. § 101(22) prohibits compensation for any member of a reserve component for work or study in connection with a correspondence course. For the reasons stated herein, the Defendant’s Motion to Dismiss is GRANTED. Consequently, Plaintiffs Motion for Class Certification is DENIED. Defendant’s Motion for Leave to File Supplemental Authority is DENIED.
II. Factual Background
William A. Carter (hereinafter Plaintiff) is a sergeant in the Alabama National Guard. Compl. U1. The National Guard is comprised of the Army National Guard and the Air Force National Guard. Plaintiff has been a member of the National Guard since approximately April 1987. Compl. If 7. The Secretary of Defense, the Secretary of the Army, and the Secretary of the Air Force require members of the National Guard to undergo specified courses of training or instruction. Compl. If 2. According to Plaintiff, many of these specified courses are available to members of the National Guard only as correspondence courses. Compl. 113. The National Guard does not compensate Guard members for completing them. Compl. 115. Plaintiff asserts that the Army National Guard engages in the same practice of requiring correspondence courses and not compensating members who take them. Compl. U16. According to Plaintiff, “[t]he same course material has been taught in resident courses, which were formerly avail
Plaintiff contends that the National Guard requires members to complete correspondence courses in order to advance or remain in the National Guard, but does not compensate members for time spent taking the courses. Compl. Till 1, 16, 35. According to Plaintiff, the Secretaries of the Army and Air Force have “prescribed training, including correspondence courses, as a requirement for maintaining membership in and advancing in the National Guard.” Compl. if 36. Plaintiff alleges that on October 7, 1999, he was reduced in grade from SSG / E6 to SGT / E5 for “[fjailure to successfully complete NCO Course (BNCOC PH II) which was a condition of promotion.” Compl. f 11 (citing Alabama Army National Guard ORDERS 280-009). He also alleges that the required course was only available to him as a correspondence course, and because he knew that he would not receive compensation, Plaintiff did not take the course. Compl. H13. Plaintiff also states that he was not made aware before the October 7, 1999 reduction in grade, that he was required to take the BNCOC Phase II course in order to remain in the grade of SSG. Compl. H12.
Plaintiff brought suit in this Court on November 1, 2000. He maintains that failure to provide compensation for correspondence course work violates 37 U.S.C. § 206(a)(2). Compl. f 17. Plaintiff seeks compensation for past correspondence course work, injunc-tive relief prohibiting the National Guard from failing to pay for future correspondence course work, and attorney’s fees, costs and expenses.
III. Discussion
A. Subject Matter Jurisdiction
The Tucker Act, 28 U.S.C. § 1491, grants the Court of Federal Claims jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a). It is well established that the Tucker Act is a jurisdictional statute and does not create any substantive right enforceable against the United States for any money damages. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Plaintiffs right of recovery must be based upon the Constitution, a federal statute, or a regulation which grants plaintiff, expressly or by implication, a right to be paid a sum certain. Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992). Further, “a claimant who says he is entitled to money from the United States because a statute or regulation grants him that right, in terms or by implication, can properly come to the Court of Claims, at least if his claim is not frivolous, but arguable.” Ralston Steel Corp. v. United States, 169 Ct.Cl. 119, 125, 340 F.2d 663 (1965), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723 (1965).
The Federal Circuit has already stated that to invoke jurisdiction under 37 U.S.C. § 206, a plaintiff must allege that he is a member of the National Guard or the reserves. Dehne, 970 F.2d at 892 (“The applicable jurisdictional prerequisite for section 206 is that the claimant be a member of the National Guard or of the reserves.”). Plaintiff has established jurisdiction here because Plaintiff alleges that he has been a sergeant in the Alabama National Guard since on or about April 1987. Compl. 1Í7. The more difficult question is whether Plaintiff can show that § 206 mandates payment for the correspondence courses that he has taken. This question is not one of jurisdiction, but one that involves a Rule 12(b)(4) analysis. Dehne, 970 F.2d at 892.
1. Standard
“A motion to dismiss under Rule 12(b)(4) for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not under the law entitle him to a remedy.” Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998). “In reviewing the dismissal under Rule 12(b)(4), we are mindful that we must assume all well-pled factual allegations as true and make all reasonable inferences in favor of ... the nonmovant.” Id. “Dismissal under Rule 12(b)(4) is appropriate only when it is beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief.” (Citations omitted; internal quotation marks omitted.) Ponder v. United States, 117 F.3d 549, 552 (Fed.Cir.1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1040, 140 L.Ed.2d 106 (1998).
The court looks to the complaint to make sure that Plaintiff has made factual allegations with respect to all the required elements. Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001) (looking to the complaint after stating that defendant’s “contract claim turn[ed] on the adequacy of its pleading.”); Morris v. United States, 33 Fed.Cl. 733, 743 (1995) (“In considering such a motion, the scope of our inquiry is confined to the facts alleged in the complaint, which we presume to be true and correct.”). “Because granting [a motion to dismiss] terminates the case on the merits, courts broadly construe the complaint, particularly in light of the liberal pleading requirements under the Federal Rules of Civil Procedure.” Ponder, 117 F.3d at 552-53.
2. 37 U.S.C. § 206(d) as a Bar to Compensation
According to 37 U.S.C. § 206(d),
a. Distinguishing the National Guard from a Reserve Component
Plaintiff correctly concludes that his status as a member of the National Guard does not equate directly to being a member of a reserve component. The definitions of Section 101 of Title 37 clearly distinguish National Guard,
b. Dual Enlistment
Despite the clear demarcation between the National Guard and the National Guard of the United States, the dual enlistment system enacted by Congress makes members of the National Guard members of the National Guard of the United States as well. The 1933 Congressional amendment to the National Defense Act of 1916 created “two overlapping but distinct organizations— the National Guard of the various States and the National Guard of the United States.” Perpich v. United States Dept. of Defense, 496 U.S. 334, 345, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). “All persons who have enlisted in a state National Guard have simultaneously enlisted in the National Guard of the United States.” Id. “National Guard members serve as members of both a state national guard and of the National Guard of the United States.” Perpich v. United States Dept. of Defense, 666 F.Supp. 1319, 1323 (D.Minn.1987), aff'd, 880 F.2d 11 (8th Cir.1989), aff'd, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990); see also Army Lawyer, 1994 Army Law 35 (1994) (“a member of the National Guard belongs to a state organization ... and a federal organization----”).
Despite this explicit language, there is considerable confusion over the Supreme Court’s holding in Perpich, as the parties strongly disagree over how the Perpich decision should be applied to the facts of this case. The Perpich court held that Congress’s interpretation of the Militia Clauses of the United States Constitution
Defendant points to the overview of Per-pich as direct support for its contention that Plaintiff was a member of the National Guard of the United States, making him a member of a reserve component ineligible for compensation for correspondence courses. Plaintiffs reliance on Perpich, on the other hand, revolves around a specific reference in the decision to where the Supreme Court stated that a member of the state Guard can only wear one hat at a time, whether it be a “civilian hat, a state militia hat, [or] an army hat.” Id. at 348, 110 S.Ct. 2418. Plaintiff argues that he is a member of the state National Guard when he wears his state hat and is only a member of the National Guard of the United States when he wears his
Plaintiff puts too much weight on this metaphor, as is clear from the context of the opinion as a whole, which has been discussed above. At the outset, it should be noted that Perpich does not doubt that members of the state National Guard are members of the National Guard of the United States at all times. In fact, this point is part of the hat metaphor, as the Court notes that members of the State Guard “keep three hats in their closets.” Id. at 348, 110 S.Ct. 2418. The hat metaphor was used by the Court to focus on the effect on the Militia Clauses of calling the state National Guard into federal service, i.e., that the “training” that occurs while the state National Guard is in federal service is not the “Authority of training” in the second clause that is reserved to the states. In the paragraph after the one in which the hat metaphor appears, the Court states that when the State Guard is called into federal service, “the state affiliation is suspended in favor of an entirely federal affiliation during the period of active service” (emphasis added). Id. at 349, 110 S.Ct. 2418. The fact that the affiliation is entirely federal when the State Guard is called into active service implies that it is partially federal before. Therefore, the hat metaphor is useful only for emphasizing that when the State Guard wears its federal hat (i.e., is called into federal service), it cannot wear its state hat. As the Court was focusing on the exclusivity of federal control over federal service, doubtless, it failed to see how inapposite the metaphor would be in focusing on the state National Guard when it is not in federal service.
Furthermore, the “Authority of training” in the second clause that is reserved to the states is still “according to the discipline prescribed by Congress.” It is federal legislation that purportedly requires the Plaintiff to take certain correspondence courses, and if he were to be paid, he would be paid from the federal treasury. As Perpich pointed out, “[t]he Federal Government provides virtually all of the funding, the material, and the leadership for the State Guard Units.” Id. at 351, 110 S.Ct. 2418.
Because the Court finds that Plaintiff is dually enlisted in the National Guard and the National Guard of the United States, and because the Army National Guard of the United States is explicitly deemed a reserve component, Plaintiff is a member of a reserve component and is barred from compensation for correspondence courses in which he participated according to § 206(d). This holding disposes of the case. Nevertheless, for completeness, the Court will consider all the issues presented.
3. Compensation Pursuant to 37 U.S.C. § 206(a)(2)
a. Interpretation of the Statute
Plaintiffs request for compensation centers on § 206(a)(2), which authorizes compensation for National Guard members performing “equivalent training ... as the Secretary may provide.” Despite the parties’ disagreement over the degree of discretion afforded the Secretary under the statute, Federal Circuit precedent has explicitly held that § 206(a)(2) is a money-mandating provision. Dehne, 970 F.2d at 893 (“[S]ection 206 mandates pay for regular periods of instruction, periods of appropriate duty, and for performance of other equivalent duties.”). Thus, once equivalent training has been authorized, the Secretary must compensate the National Guard member who has undergone the training.
Defendant spends a great deal of time making the assertion that the use of the word ‘may’ in § 206(b)(1) converts the statute to non-money mandating. Section 206(b)(1) provides in pertinent part:
(1) minimum standards that must be met before an assembly for drill or other equivalent period of training, instruction, duty, or appropriate duties may be credited for pay purposes, ....
While the use of discretionary language does sometimes make a task discretionary,
Thus, it is clear from the structure of sections (a) and (b) that a member must be paid (under (a)); if the Secretary elects to prescribe the performance of equivalent training, instruction, duty, or appropriate duties (under (a)(2)); and if the Secretary elects to prescribe the performance of equivalent training, instruction, duty, or appropriate duties (under (a)(2)), he or she must prescribe minimum standards (under (b)(1)).
b. Plaintiffs Insufficient Allegations
While Plaintiffs complaint requests compensation for correspondence classes that he did take and those that he has not taken,
4. “Inactive-Duty'Training” as a Bar to Compensation
While Defendant’s argument for dismissal regarding § 206(d) is correct, Defendant nevertheless erroneously claims that the definition of “inactive-duty training”
Thus, despite other provisions that preclude Plaintiff from being compensated for correspondence courses, the presence of the phrase “inactive-duty training” in the title and body of 37 U.S.C. § 206 is not an impediment to Plaintiff in his action seeking compensation.
IV. Conclusion
In accordance with 37 U.S.C. § 206(d), Plaintiff is barred from compensation for correspondence courses because, as a member of the National Guard of the United States, Plaintiff is a member of a reserve component. Even if Plaintiff were eligible for compensation, however, Plaintiff has failed to demonstrate in his complaint that he has performed equivalent training or duties required by the Secretary under § 206(a)(2). Thus, it is hereby ORDERED that Defendant’s Motion to Dismiss is-GRANTED. The Clerk is directed to dismiss the complaint with prejudice because Plaintiff fails to state a claim upon which relief can be granted.
. Plaintiff also requested that the Court certify his action as a class action, certify Plaintiff as class representative, and approve Plaintiff’s attorneys as attorneys for the entire class. On January 23, 2001, the Court stayed Defendant's response to Plaintiff’s motion for class certification pending resolution of Defendant’s Motion to Dismiss.
. Section 206(d) provides "This section does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force.”
. The National Guard is defined as the Army National Guard and the Air National Guard. 37 U.S.C. § 101(6). This Court is only concerned with the Army National Guard,.which is defined as:
that part of the organized militia of the several States, Puerto Rico, Guam, the Canal Zone, the Virgin Islands, and the District of Columbia, active and inactive — (A) is a land force; (B) is trained, and has its officers appointed under the sixteenth clause of section 8, article 1, of the Constitution; (C) is organized, armed, and equipped wholly or partly at Federal Expense; and (D) is federally recognized. 37 U.S.C. § 101(7).
. The National Guard of the United States, specifically the Army National Guard of the United States, refers to "the reserve component of the
. According to 37 U.S.C. § 101(24), the term "reserve component” means: (A) the Army National Guard of the United States; (B) the Army Reserve; (C) the Naval Reserve; (D) the Marine Corps Reserve; (E) the Air National Guard of the United States; (F) the Air Force Reserve; (G) the Coast Guard Reserve; or (H) the Reserve Corps of the Public Health Service.
. Clause 15 and 16 of Article I of the Constitution are referred to as "the Militia Clauses"— they read as follows: The Congress shall have Power ... to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. ...” U.S. Const., Art. I, § 8, cl. 15, 16.
. Section 206 provides in pertinent part:
(a) Under regulations prescribed by the Secretary concerned, and to the extent provided for by appropriations, a member of the National Guard or a member of a reserve component of a uniformed service who is not entitled to basic pay under section 204 of this title, is entitled to compensation, at the rate of Ido of the basic pay authorized for a member of a uniformed service of a corresponding grade entitled to basic pay—
(2) for the performance of such other equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe____
37 U.S.C. § 206 (emphasis added).
. "When, within the same statute, Congress uses both 'shall' and ‘may,’ it is differentiating between mandatory and discretionary tasks.” Huston v. United States, 956 F.2d 259, 262 (Fed.Cir.1992).
. Plaintiff states that he never took the Basic Non-Commissioned Officer Course (BNCOC) Phase II, which was only offered as a correspondence course, because "he could not dedicate the hours needed to take the course without pay.” Compl. V 12.
. At oral argument, Plaintiff's counsel admitted that Plaintiff is only entitled to compensation for correspondence courses that he did take. Tr. 74:9-24.
. Plaintiff does state in his supplemental memorandum that he took subcourse MU1300 and MU1709, which he alleges were prescribed in Phase II BNOCC. If the Court were not granting Defendant’s motion based on § 206(d), Plaintiff would be entitled to amend his complaint to include these courses as prescribed by the Secre-
. Section 206 provides in pertinent part:
(3) for a regular period of instruction that the member is scheduled to perform but is unable to perform because of physical disability resulting from an injury, illness, or disease incurred or aggravated—
(A) in line of duty while performing—
(i) active duty; or
(ii) inactive-duty training;
(B) while traveling directly to or from that duty or training (unless such injury, illness, disease, or aggravation of an injury, illness, or disease is the result of the gross negligence or misconduct of the member)....
37 U.S.C. § 206 (emphasis added).