NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID R. SMITH,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5090
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00094-PEC, Chief Judge Patricia E.
Campbell-Smith.
______________________
Decided: May 26, 2015
______________________
PHILLIP LEON DAVIDSON, Law Office of Phillip L. Da-
vidson, Nashville, TN, for plaintiff-appellant.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN,
JR., MARTIN F. HOCKEY, JR.; BRYCE G. POOLE, Air Force
Civil Litigation, United States Air Force, Joint Base
Andrews, MD.
2 SMITH v. US
______________________
Before NEWMAN, MOORE, and TARANTO, Circuit Judges.
NEWMAN, Circuit Judge.
Lieutenant Colonel David R. Smith appeals a decision
of the United States Court of Federal Claims, Smith v.
United States, 114 Fed. Cl. 691 (2014), sustaining the
government’s position that Lt. Col. Smith is not entitled
to restoration to a position with the Active Guard Reserve
(“AGR”). To prevail on appeal, Lt. Col. Smith must estab-
lish that the court’s decision was “arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.”
Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006);
Smith, 114 Fed. Cl. at 700.
BACKGROUND
From 1993 to February 2002, Smith served with the
Tennessee Air National Guard as a “traditional” guards-
man in the118th Air Wing. In February 2002 he was
selected for a position in the AGR. AGR personnel serve
full-time. Guardsmen in this status serve a probationary
period of six years, and then obtain “retention (career)
status and shall require subsequent management under a
career program.” Air National Guard Instruction
(“ANGI”) 36-101 §2.2.1.1. A career management program
is “a program that may afford individuals the opportunity
to achieve upward mobility consistent with manpower
constraints and the needs of the Air National Guard.”
ANGI 36-101 §1.1.
The Air National Guard Instructions provide that “ca-
reer retention and advancement” is “dependent on exist-
ing force requirements and the needs of the unit, State,
and Air National Guard.” ANGI 36-101 §2.2.1.2. Fur-
ther, “AGR personnel are counted against authorized
ANG [Air National Guard] end-strength for Airmen on
SMITH v. US 3
full-time National Guard duty as authorized by Congress.
ANGI 36-101 §2.2.2 (citing 10 U.S.C. §115).
“Additionally, AGR personnel are counted against
congressional authorizations for the controlled grades of
E-8 [senior master sergeant], E-9 [chief master sergeant],
O-4 [major], O-5 [lieutenant colonel], and O-6 [colonel].”
Id. (citing 10 U.S.C. §§1201, 12012). These “Congression-
ally mandated end-strength authorizations” are known as
“controlled grade ceilings.” ANGI 36-101 (glossary of
terms). “Assignment or promotion to these controlled
grades cannot exceed the annually established military
duty end-strength or grade ceilings.” ANGI 36-101 §13.3.
The National Guard Bureau “is responsible for allocating
controlled grades” among the states, which “must adhere
to their controlled grade limits.” Id. §§13.3.1, 13.3.2.
Then-Major Smith’s February 2002 selection for an
AGR position was for a four-year tour in the Tennessee
Air National Guard on full-time active duty as a Deputy
Commander of the 45th Civil Support Team, Weapons of
Mass Destruction unit. In 2006, a unit Commander AGR
position became available in the 45th Civil Support Team,
which was limited to a three or four-year term. Relying
on the declaration of Terry M. Haston, the Adjutant
General for the Tennessee National Guard, the Court of
Federal Claims found that “[a]s a matter of policy, the
position of unit Commander is limited in term to either a
three or four-year term,” which “allows command to move
multiple officers through this position of leadership.”
Smith, 114 Fed. Cl. at 697. Adjutant General Haston
stated in his declaration that Smith “was counseled that
the commander’s position . . . is term-limited as a matter
of policy . . . and the Tennessee Air National Guard did
not have the additional AGR structure to place him back
in the Air Guard at the expiration of his term of com-
mand.”
4 SMITH v. US
After successfully pursuing the position, in about Oc-
tober 2006 Smith began service as Commander of the
45th Civil Support Team, Weapons of Mass Destruction
unit in a three to four-year tour. In December 2006 Smith
was promoted to the rank of Lieutenant Colonel, and in
February 2008, after serving six years in the AGR, Smith
attained career status under ANGI 36-101.
In August 2009 the Tennessee Air National Guard no-
tified Smith that his command position would soon be
rotated to a new commander, and he began to look for
other opportunities to continue his AGR service. Smith
decided to pursue attendance at the Naval War College
for one year on active duty, pursuant to 10 U.S.C.
§12301(d). Smith’s orders permitted him to maintain his
AGR status in the 45th Civil Support Team until July 5,
2010, at which time Smith’s AGR status ended. On July
6, 2010, Smith entered the one-year program at the Naval
War College, from which he graduated in June 2011.
Smith sought to resume an AGR position, but he was
notified by the Tennessee Air National Guard that his
former position was term-limited and had ended, and that
he did not have restoration rights. He was not selected
for any other AGR positions. Meanwhile, Smith obtained
a full-time temporary position as an Intelligence Opera-
tions Specialist, serving from July 5, 2011 to January 14,
2012. This was not an AGR position and, when this
position ended, Smith returned to his initial status as a
part-time traditional guardsman. The government, citing
Adjutant General Haston’s declaration in the Court of
Federal Claims, states that the “Tennessee ANG has
stated that it will consider LTC Smith in the future for a
full-time AGR position in his grade and specialty if one
becomes available.” U.S. Br. 11.
Smith cites four sections of the ANGI 36-101 to sup-
port his contention that he is entitled to restoration in the
AGR.
SMITH v. US 5
ANGI 36-101 §2.8.3
ANGI 36-101 §2.8.3 is the core provision specifying
restoration rights of AGR personnel:
§2.8.3 AGR personnel who enter ANG Title 10
Statutory Tour, assigned to the NGB [National
Guard Bureau] UMB [Unit Manning Document]
(e.g. Title 10 U.S.C., Sections 10211, 10305, 12402
and 12310) have restoration rights not to exceed
five years, to the State from which they entered
their initial Statutory Tour. Individuals will not
be restored to AGR status solely to gain entitle-
ment to a new period of restoration rights. Excep-
tions to this policy will not be considered. Each
AGR Airman who enters an ANG [Air National
Guard] Title 10 Statutory Tour must be informed
in writing and acknowledge such notice that the
individual is entitled to revert to the same mili-
tary grade held prior to the Statutory Tour as-
signment. . . .
The Court of Federal Claims held that the restoration
rights provided in §2.8.3 do not apply to Smith. ANGI 36-
101 glossary of terms defines “Statutory Tour” as a “Title
10 Section 12310 active duty tour attached to NGB [Na-
tional Guard Bureau] IAW [in accordance with] ANGI 36-
6, ANG Statutory Tour Program Policies and Procedures.”
The court correctly observed that, by its terms, §2.8.3
restoration rights apply to AGR personnel who enter a
Statutory Tour as defined in the glossary of terms.
The court observed that the order authorizing Smith’s
attendance at the Naval War College described the “Type
of Duty/Authority” as “School Professional Military Edu-
cation (PME)” pursuant to 10 USC §12301(d) and ANGI
36-2001. Smith, 114 Fed. Cl. at 701. These references
support the government’s assertion that Smith’s attend-
ance at the Naval War College was not a Statutory Tour
as set forth in ANGI 36-101 §2.8.3.
6 SMITH v. US
Further, the Statutory Tour Program Policies and
Procedures 4, ANGI 36-6, requires service members
selected for a Statutory Tour to initial six paragraphs on
the Form 830, Statutory Tour Statement of Understand-
ing. Smith does not allege he was provided with or ini-
tialed this form, and the Court of Federal Claims found no
such form in the record. The court also observed that the
order assigning Smith to attend the Naval War College
does not suggest that Smith’s attendance would be a
Statutory Tour. “Rather, it refers to the instructions
governing professional military education, ANGI 36-
2301.” Smith, 114 Fed. Cl. at 702.
ANGI 36-101 §7.8.1
Lt. Col. Smith also challenges the determination that
ANGI 36-101 §7.8.1 does not apply to him. Section 7.8.1
states that “AGRs called or ordered to Title 10 federal
active duty . . . supporting Active Duty requirements for
operations/missions/exercises/training (Title 10 U.S.C.
12301(d), 12302, 12304, or 10147) will not be terminated
from their Title 32 U.S.C. Section 502(f) orders.” Smith’s
argument appears to be that he was terminated from
AGR orders, in violation of §7.8.1, by not being restored
after his tour at the Naval War College.
Smith served as an AGR pursuant to 32 U.S.C.
§502(f). The Court of Federal Claims found that Smith
was separated from AGR service on July 5, 2010—before
beginning his tour of duty at the Naval War College on
July 6, 2010. Smith, 114 Fed. Cl. at 703. The record
contains Smith’s Tennessee Air National Guard orders
which state that his AGR position was pursuant to §502(f)
and ended on July 5, 2010, and his orders stating that his
attendance at the Naval War College is “Professional
Military Education” pursuant to 10 U.S.C. §12301(d) and
ANGI 36-2001.
In addition, Smith’s “Certificate of Release or Dis-
charge from Active Duty” states that “Member served on
SMITH v. US 7
active duty in support of an AGR tour program according
to 32 USC 502(f) & ANGI 36-101 from (1-FEB-2002 – 5-
JULY-2010).” No error has been shown in the court’s
finding that Smith was not an AGR when he began his
tour at the Naval War College. That finding is fully
supported by the record. Moreover, Smith does not con-
test the finding that his AGR tour prior to attending
Naval War College was term-limited.
ANGI 36-101 §2.2.1.1
Lt. Col. Smith also challenges the determination that
his “career status” under ANGI 36-101 §2.2.1.1 did not
provide assurance of continued AGR employment.
Section 2.2.1.1 states that “Continuation beyond the
initial probationary period in service in AGR status for
more than six years constitutes retention (career status)
and shall require subsequent management under a career
program.” Section 2.2.1.2 further states that “career
retention and advancement will be dependent on existing
force requirements and the needs of the unit, State, and
Air National Guard.” Section 9.9.1 provides:
Airmen granted career status (successive tour)
shall be administered with the understanding
that their service may lead to a military retire-
ment after attaining the required years of [total
active federal military service]. However, career
status does not guarantee continuation to 20
years of [total active federal military service] and
an [active duty] retirement. Continuation to 20
years of [total active federal military service] and
beyond is contingent on individual performance,
career progression, mission requirements, force
management and the needs of the unit, State, and
Air National Guard.
Section 1.1 of ANGI 36-101 also explains that contin-
ued employment in AGR status is not guaranteed, stating
8 SMITH v. US
“a career management program is defined as a program
that may afford individuals the opportunity to achieve
upward mobility consistent with manpower constraints
and the needs of the Air National Guard.” The conclusion
that guaranteed employment is not provided under the
rules is further supported by statutory limitations on
manpower and controlled grade ceilings as set by Con-
gress, which cannot be exceeded. See ANGI 36-101
§§2.2.1.2, 2.2.2, 13.3.
ANGI 36-101 §7.5
Lt. Col. Smith also appeals the denial of his motion to
alter or amend the judgment pursuant to RCFC 59(e).
Smith argued that, pursuant to ANGI 36-101 §7.5, his
AGR status should have been preserved while attending
the Naval War College. Section 7.5 states:
Training and Developmental Education
(DE). AGRs will be afforded the same opportuni-
ty for enhancing their military knowledge and ca-
reer as is presently available to all other ANG
Airmen. AGRs attend all service schools in AGR
status. Orders will indicate the fund citation for
travel and per diem provided under the school
quota authorization.
The Court of Federal Claims observed that Smith’s
AGR status was “extended until the start date of his
Naval War College duty in July 2010, during which time
Lt. Col. Smith assisted with the transition to the new unit
commander.” We discern no error in the determination
that when Smith began his tour at the Naval War College
he was not in AGR status. Thus, the §7.5 provision that
“AGRs attend all service schools in AGR status” does not
apply.
SMITH v. US 9
CONCLUSION
On review of the statute and regulations, and the po-
sition of the government, we conclude that the ruling of
the Court of Federal Claims is in accordance with law.
AFFIRMED
Each party shall bear its costs.