Clark v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

WILLIAM A. CLARK, JAMES P. DAVERN, ROBERT
E. FREEBURG,
WILLIE R. JOHNSON, ROBERT A. MUSTIN,
CAROL RISSER, JOHN DOES 1-4,
AND JANE DOES 2-3, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2011-5003
__________________________

Appeal from the United States Court of Federal
Claims in case no. 00-CV-644, Judge Nancy B. Firestone.
___________________________

Decided: August 29, 2011
___________________________

JERROLD J. GANZFRIED, Howrey, LLP, of Washington,
DC, argued for plaintiffs-appellants. With him on the
brief was JOHN F. STANTON. Of counsel on the brief was
STEVEN L. NICHOLAS, Cunningham Bounds, LLC, of
Mobile, Alabama.
CLARK v. US 2

DOUGLAS K. MICKLE, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and BRYANT G. SNEE, Deputy Director. Of
counsel on the brief were JOHN G. DOYLE, United States
Army, Litigation Division, Military Personnel Branch, of
Arlington, Virginia, JOHN S. GOEHRING, United States Air
Force, General Litigation Division, of Arlington, Virginia,
and MAXIMINO GONZALEZ, JR., National Guard Bureau,
Office of Chief Counsel, of Arlington, Virginia.
__________________________

Before RADER, Chief Judge, PROST and O’MALLEY, Circuit
Judges.
RADER, Chief Judge.
In a class action by National Guard members, the
United States Court of Federal Claims found on summary
judgment that plaintiffs were not eligible to receive com-
pensation for time spent taking correspondence training
courses under 37 U.S.C. § 206. Clark v. United States, 93
Fed. Cl. 756 (Fed. Cl. 2010). Because the Court of Federal
Claims correctly interpreted the scope of this court’s
mandate and properly granted summary judgment in
favor of the government, this court affirms.
I
William A. Clark (“Clark”) is a retired staff sergeant
in the Alabama National Guard. In 2000, Clark filed a
class action complaint in the Court of Federal Claims on
behalf of himself and other similarly situated Army and
Air National Guard members. Clark alleged that the
Secretary of the Army and the Secretary of the Air Force
required him and the other National Guard members to
3 CLARK v. US

take certain correspondence courses to keep their posi-
tions or to advance in rank. Therefore, he sought com-
pensation for the time spent taking these required
courses. At the time Clark filed his complaint, 37 U.S.C.
§ 206 provided:
(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 . .
. is entitled to compensation . . .
(1) for each regular period of instruction, or
period of appropriate duty, at which the
member is engaged for at least two hours,
including that performed on a Sunday or
holiday;
(2) for the performance of such other equiva-
lent training, instruction, duty, or appro-
priate duties, as the Secretary may
prescribe . . . .
(b) The regulations prescribed under subsection
(a) for each uniformed service, the National
Guard, and each of the classes of organiza-
tion of the reserve components within each
uniformed service, may be different. The
Secretary concerned shall, for the National
Guard and each of the classes of organization
within each uniformed service, prescribe —
(1) minimum standards that must be met be-
fore an assembly for drill or other equiva-
lent period of training, instruction, duty,
or appropriate duties may be credited for
pay purposes . . . .
CLARK v. US 4

(d) This section does not authorize compensation
for work or study performed by a member of a
reserve component in connection with corre-
spondence courses of an armed force.
37 U.S.C. § 206 (1997) (emphases added).
National Guard members of each state must also
enlist as members of the National Guard of the United
States, a reserve component of the Army and the Air
Force. 10 U.S.C. § 12107(b)(1). The trial court found that
Clark was a member of a reserve component and held
that § 206(d) barred him from receiving compensation.
Clark v. United States, 50 Fed. Cl. 727, 732 (Fed. Cl.
2001). Accordingly, the trial court dismissed the com-
plaint for failure to state a claim upon which relief could
be granted. Id. at 734.
On appeal, this court reversed, holding that “members
of the National Guard only serve the federal military
when they are formally called into the military service of
the United States. At all other times, National Guard
members serve solely as members of the State militia
under the command of a state governor.” Clark v. United
States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). Because
Clark had not been formally called into the military
service of the United States, he was not a member of a
reserve component when taking the correspondence
courses. Accordingly, this court concluded that “37 U.S.C.
§ 206(d) does not bar Mr. Clark’s claim for compensation
and that, as a matter of law, his complaint is sufficient to
state a cause of action under 37 U.S.C. § 206(a).” Id. at
1368.
In this earlier appeal, the government had also ar-
gued that § 206(a) only mandates compensation when the
Secretary of the Army has prescribed payment for equiva-
lent training. Without authorization from the Secretary
5 CLARK v. US

for payment for the time spent taking required correspon-
dence courses, the government maintained that Clark was
not entitled to compensation. This court rejected that
argument, explaining that “Section 206(a)(2) requires
payment for equivalent training that the Secretary pre-
scribes. It does not require that the Secretary prescribe
payment.” Id. This court remanded the case to the Court
of Federal Claims for Clark to “establish which classes the
Secretary of the Army required, if any, and which classes
he took to satisfy those requirements. Moreover, he must
establish the amount of compensation he is due under the
statute.” Id.
On remand, Clark amended his complaint to add sev-
eral additional plaintiffs. While this case was proceed-
ing, Congress amended 37 U.S.C. § 206(d) twice. In 2006,
Congress amended § 206(d) to provide that “this section
does not authorize compensation for work or study per-
formed by a member of a reserve component or by a
member of the National Guard while not in Federal ser-
vice in connection with correspondence courses of a uni-
formed service,” thus making clear that National Guard
members would not be compensated for taking correspon-
dence courses. Nat’l Def. Authorization Act for Fiscal
Year 2006, Pub. L. No. 109-163, § 604, 119 Stat. 3287
(emphasis added). A few months later, Congress made
this amendment retroactive with an effective date of
September 7, 1962. Nat’l Def. Authorization Act for
Fiscal Year 2007, Pub. L. No. 109-364, § 607, 120 Stat.
2083, 2247. In response, plaintiffs amended their com-
plaint to add a Takings Clause claim, contending that
retroactive application of these amendments entitled
them to compensation for the taking of their vested
rights.
The government moved to dismiss the second
amended complaint based on Congress’s amendment of
CLARK v. US 6

§ 206(d). Due to the constitutional issues raised by the
plaintiffs regarding these amendments, the trial court
denied the motion as premature, reasoning that it should
first determine whether plaintiffs would have been enti-
tled to compensation under § 206(a) prior to amendment.
Clark v. United States, No. 00-CV-644, 2007 WL 2142652,
at *7 (Fed. Cl. July 17, 2007).
At the conclusion of discovery, the parties filed cross
motions for summary judgment. The trial court found
that the prescribed regulations only authorized compen-
sation when training took place pursuant to written
orders placing the National Guard member in the proper
duty status. Because the undisputed facts established
that plaintiffs did not complete correspondence courses
under written orders, the court granted the government’s
motion for summary judgment and denied plaintiffs’
motion for summary judgment. The trial court entered
judgment in favor of the government, and plaintiffs timely
appealed. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
The Court of Federal Claims held that the mandate
rule did not bar its consideration of the government’s
argument that compensation under 37 U.S.C. § 206 is due
only when the plaintiffs can show that they met minimum
requirements set forth in prescribed regulations. On that
basis, the trial court granted summary judgment to the
government. This court reviews both the grant of sum-
mary judgment and the interpretation of its own mandate
without deference. Small v. United States, 158 F.3d 576,
580 (Fed. Cir. 1998) (summary judgment); Cardiac Pace-
makers, Inc. v. St. Jude Med., Inc., 576 F.3d 1348, 1355
(Fed. Cir. 2009) (en banc) (interpretation of mandate).
7 CLARK v. US

“The mandate rule provides that issues actually de-
cided on appeal—those within the scope of the judgment
appealed from, minus those explicitly reserved or re-
manded by the court—are foreclosed from further consid-
eration.” Amado v. Microsoft Corp., 517 F.3d 1353, 1360
(Fed. Cir. 2008). This rule also precludes reconsideration
of issues necessarily decided by implication in the earlier
decision. Id. at 1364.
The trial court correctly interpreted this court’s man-
date. The earlier appeal focused on whether Clark was a
member of a reserve component such that § 206(d) would
bar him from receiving compensation. This court’s 2003
opinion did not express an ultimate view on the merits of
Clark’s claim for compensation under § 206(a); rather,
this court remanded the case “for proceedings on the
merits of Mr. Clark’s claim for compensation under sec-
tion 206(a).” Clark, 322 F.3d at 1369.
The government’s minimum requirements argument
was not raised before this court in the earlier appeal.
Previously, the government had argued that compensa-
tion was only due under § 206(a) when the Secretary has
affirmatively acted to prescribe, not only equivalent
training, but also payment for such training. See Def.-
Appellee Br., Clark v. United States, 322 F.3d 1358 (Fed.
Cir. 2003) (No. 02-5062), 2002 WL 32817234 at *33 (as-
serting that “Clark’s failure to identify a mandatory
statute or regulation that entitles him to relief is com-
pletely dispositive of his entitlement to relief”). This court
rejected this argument, explaining that “Section 206(a)(2)
requires payment for equivalent training that the Secre-
tary prescribes. It does not require that the Secretary
prescribe payment.” Clark, 322 F.3d at 1368. On re-
mand, the government made a different argument—that
compensation for equivalent training is only due when the
minimum standards for payment, set forth in regulations
CLARK v. US 8

prescribed by the Secretary, have been met. In other
words, the government has not simply repackaged its
earlier position (that compensation is not due because the
Secretary has not affirmatively prescribed regulations
authorizing payment). Instead, the government now
contends that compensation is not due because the plain-
tiffs have not met minimum requirements for payment set
forth in regulations prescribed by the Secretary. As the
trial court correctly explained:
The Federal Circuit read Section 206(a)(2) to
mean that the Service Secretaries are not re-
quired by law to specifically prescribe payment of
correspondence courses by regulation. However,
the Federal Circuit did not state that the Service
Secretaries were precluded by Section 206 from
establishing prerequisites for payment of training
courses generally.
Clark, 93 Fed. Cl. at 768.
Because the government’s minimum requirements ar-
gument was not decided by this court in the earlier ap-
peal, the mandate rule did not preclude the trial court’s
consideration of this argument on remand. See Amado,
517 F.3d at 1360 (mandate rule limited to “issues actually
decided on appeal”). For the same reason, the law-of-the-
case doctrine did not bar the trial court’s holding on
remand. See Liquid Dynamics Corp. v. Vaughan Co., Inc.,
449 F.3d 1209, 1220 (Fed. Cir. 2006) (“Issues not decided
by the court in a prior proceeding are not covered by the
law-of-the-case doctrine.”).
III
The Court of Federal Claims also did not err in grant-
ing summary judgment that plaintiffs are not entitled to
compensation under 37 U.S.C. § 206. Section 206(a)
9 CLARK v. US

provides that National Guard members may receive
compensation for training “[u]nder regulations prescribed
by the Secretary concerned.” Section 206(b) specifically
references “[t]he regulations prescribed under subsection
(a)” and states that “[t]he Secretary concerned shall . . .
prescribe . . . minimum standards that must be met before
an . . . equivalent period of training . . . may be credited
for pay purposes.” The statute thus unambiguously
provides the Secretary with discretion to prescribe mini-
mum requirements for payment.
37 U.S.C. § 101(5) defines “Secretary concerned” to
mean “the Secretary of the Army, with respect to matters
concerning the Army” and “the Secretary of the Air Force,
with respect to matters concerning the Air Force.” The
record shows that the Secretary of the Army and the
Secretary of the Air Force delegated the authority to
promulgate regulations relating to the Army National
Guard and the Air National Guard to the National Guard
Bureau. See, e.g., Pls.’ Br. Supp. Opp. Def.’s Mot. Summ.
J. & Cross Mot. Summ. J. at 8 n.4, Clark v. United States,
No. 00-CV-644 (Fed. Cl. Oct. 14, 2009), ECF No. 252-1;
Supplemental Br. Supp. Pls.’ Mot. for Summ. J. at 4 n.3,
Clark v. United States, No. 00-CV-644 (Fed. Cl. May 7,
2010), ECF No. 265-1. Thus, the National Guard Bureau
promulgated the regulations prescribed by the “Secretary
concerned.” The National Guard Bureau prescribed Air
National Guard Instruction 36-2001 (“ANGI 36-2001”)
and National Guard Regulation (Army Regulation) 350-1
(“NGR (AR) 350-1”). Under these regulations, a member
of the Air or Army National Guard is not entitled to
receive payment for training unless the training took
place under written authorization placing him or her into
a pay duty status. See ANGI 36-2001, Management of
Training and Operational Support Within the Air Na-
tional Guard (Jan. 15, 1997) at ¶ 1.10; NGR (AR) 350-1,
CLARK v. US 10

Training: Army National Guard Training (June 3, 1991)
at ¶ 2-1(c).
The trial court found that “[t]he undisputed facts es-
tablish that none of the plaintiffs received written orders
or authorizations from their state commanders in connec-
tion with any of the correspondence courses they took.
Thus, none of them were placed in a duty status neces-
sary for federal payment.” Clark, 93 Fed. Cl. at 778. The
record puts this factual finding beyond dispute. Because
the regulations prescribed by the National Guard Bureau
require written orders placing a National Guard member
in a pay duty status as a prerequisite to payment for
training, the trial court did not err in granting summary
judgment that plaintiffs were not entitled to compensa-
tion under § 206(a). Accordingly, the judgment below is
AFFIRMED.
COSTS
Each party shall bear its own costs.