Transcript

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM "SKY" KING, Petitioner v. ST. VINCENT'S HOSPITAL

No. 90-889

October 16, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES:

AMY L. WAX, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

HARRY L. HOPKINS, ESQ., Birmingham, Alabama; on behalf of the Respondent.

PROCEEDINGS

11:03 a.m.

CHIEF JUSTICE REHNQUIST: We will now here argument in Case No. 90-889, William Sky King v. St. Vincent's Hospital.

Ms. Wax, you may proceed whenever you're ready.

ORAL ARGUMENT OF AMY L. WAX ON BEHALF OF THE PETITIONER

MS. WAX: Mr. Chief Justice, and my it please the Court:

This case concerns the application of the Veteran's Reemployment Rights Act, which provides job protection for members of the armed forces. The question at issue which arise under Section 2024(d) of the act, is whether the right to a leave of absence upon request to perform active duty for training is conditioned on the reasonableness of the request, or more specifically, on the length of the leave requested.

In 1987, petitioner, Mr. William King, who was employed as head of security at respondent hospital, requested a leave of absence to serve a 3-year tour of full-time duty in the Alabama National Guard, as a member of the Active Guard Reserve program, which provides full-time support personnel for armed forces Reserve units. This request was denied by the hospital, which filed this action for a declaratory judgment that they were not required to grant the leave.

The courts below held that a request for leave under Section 2024(d) is subject to a three-factor test of reasonableness. In applying that test, the court of appeals focused on the length of a leave, and ruled that a 3-year leave was, per se, unreasonable. In any event, they held, petitioner's request was unreasonable under the circumstances, mainly because it was too long.

The Government petitioned for certiorari to resolve a circuit split on the issue of the interpretation of Section 2024(d). It is our position that the Eleventh Circuit's reasonableness test has no basis whatsoever in the statute. There simply is not requirement that a request for leave be reasonable. Once it is established, and no one contests in this case, that Section 2024(d) covers petitioner's duty, and that if he enjoys any re-employment rights at all, it is under this section. The Government submits that the language of 2024(d) answers this case.

Now on the question of coverage, the district court made the finding that petitioner received orders under Section 502 of 32 U.S.C. to perform full-time National Guard duty. And Section 2024(f) of the Reemployment Rights provision states that full-time National Guard duty under Section 502 is considered active duty for training for purposes of 2024(d), the provision at issue.

That provision states in pertinent part that an employee shall, upon request, be granted a leave of absence by such person's employer for the period required to perform active duty for training. The provision says that the employee shall be granted leave. There is no option for the employer to refuse. The only condition placed on the grant of leave is that of a request, a condition that was complied with here.

It's obvious, it's plain, that the word "reasonable" no where appears in this section. And as for the factor of which the court made so much, that of the duration of leave, the provision obviously places no fixed limitation on how long an individual can be away from their job. And to the extent that it can be said to address duration at all, it states that the employee is to be granted a leave for the period required to perform the pertinent duty.

That language makes clear that the period of the leave is just the period required to complete the training program in which the reservist is enrolled. That requirement, it is assumed, will be fixed by statute or by the military, whose job it is, after all, to determine these sorts of requirements, and which is traditionally accorded a great deal of deference in fixing training requirements in the military.

Now in this case, Army regulations require 3 years of service in the AGR program. And it follows that petitioner retains his leave of absence status and his right to return to his position for the full 3 years.

To summarize then, Section 2024(d) creates a flexible, elastic protection that expands and contracts to fit the requirements of a particular tour of training duty.

QUESTION: No limit? There's no time limit whatever?

MS. WAX: No, Your Honor, none. The open-ended language --

QUESTION: You think -- so you say -- and he has to be permitted to return? I mean it could be as long as 12 years, I assume, if he takes two tours of duty under some of these things. And he has to be permitted to return with the same seniority he would have had if he had stayed, even though he's been away for 12 years.

MS. WAX: The longest tour of duty that is covered by this section at this time is the 3-year AGR program. In order to be away 12 years, he'd have to re-enroll four times. We are -- the Government is aware of no cases in which someone has sought to return to his job after re-enrolling in AGR four times.

What generally happens as a practical matter, Your Honor, in the very rare cases in which people re-enroll in AGR, is that the individuals choose to give up their jobs and make a career of this program. So the theoretical possibility, which we concede exists, because it is possible to re-enroll in the AGR, although it's totally at the discretion of the military -- an individual can't do it on their own motion -- that theoretical possibility hasn't really been a problem.

QUESTION: What if the employer has abolished the position when the person wants to come back, he just no longer has that?

MS. WAX: Right. The individual will not have the right to come back to his job if the employer abolishes the position. And that flows from several aspects of the statute. Number one --

QUESTION: I'd like you to tell me what that flows from because I no more see that in the text of this provision than I see any time limit, and I wonder why you're willing to imply the one but not imply the other?

MS. WAX: Well, it says that the employee shall be permitted to return to such employee's position. And it is the Department of Labor's view that the condition precedent to returning to your position is that the position still exists.

Furthermore, this flows from --

QUESTION: By implication.

MS. WAX: Yes, we think it's a tenable reading of that language. And the reason that it's more tenable than perhaps the alternative, is because 2024(d), and also other sections contain what this Court has called the escalator clause, which says that he shall -- an individual shall return with such status and such seniority as he would have had had he remained on the job.

Now, it's truism that if someone's position is abolished, they would not have had such a job even if they had stayed on the job. And we think that this section manifests Congress' intent not to make returning trainees better off than they would have been if they'd stayed. So the combination of those two sections, we think, answers that question.

QUESTION: Ms. Wax, do you think we owe deference to the most recent Veterans' Reemployment Rights Handbook regulations in this area in light of the very dramatic shifts by the Department of Labor in their view of this statute and its requirements over the years?

MS. WAX: Well, Your Honor, this Court has stated in Monroe v. Standard Oil, that the Veterans' Reemployment Handbook is an authoritative source of the interpretation of the act. We do think that deference is owed, but I think what we would say is that deference isn't needed here because this is not an issue in the statute where there's any ambiguity.

There are other issues in this statute where there is some question about how it is to be applied, and this Court has dealt with them in a long line of cases, cases that deal with the terms and conditions upon which an individual returns to their job on which the statute may not be crystal clear. But the issue of whether the person gets their job back, we think that's crystal clear, and there need be no recourse to the Veterans' Handbook on that question.

The open-ended language --

QUESTION: What -- can you explain it to me why is it that the Government says this is not an initial period of active duty for training? This is something else?

MS. WAX: Yes.

QUESTION: What is it?

MS. WAX: It is active duty for training. Active duty for training is a term of art, Your Honor.

QUESTION: And that's different from an initial period of active duty for training?

MS. WAX: Yes, Your Honor, initial active-duty training, which by statute and regulation lasts 90 days or less -- 30 to 90 days, that's covered by Section 2024(c), a separate provision of the act which provide reemployment rights for initial active-duty training. This is something else entirely.

QUESTION: I don't understand that because that says for not less than 12 consecutive weeks.

MS. WAX: Excuse me, right, 90 days --

QUESTION: It has to be more than 90 --

MS. WAX: Excuse me, 3 to 6 months. That's my mistake. Initial active-duty training is training that all reservists are required to perform that runs from 3 to 6 months. So 2024(c) is structured to apply, and is intended to apply to that initial intensive period of training that all ready reservists are required to perform. All other training duty is covered by Section 2024(d).

QUESTION: This is a new job. It is not clear to me why this wasn't an initial period of active duty. It was an entirely new position for him.

MS. WAX: Right.

QUESTION: And it was longer than 12 weeks, so he's not covered by (c), so (d) clicks in.

MS. WAX: Right. Well, the reason that this individual is covered by 2024(d), Your Honor, is to be found is 2024(f), which specifically addresses the question of the reemployment rights of members of the National Guard who serve on full-time duty under section 502 of 32 U.S.C. That's how they get their orders.

Now, he received his orders under Section 502 of 32 U.S.C. Individuals who are serving so-called initial active-duty training, which is another term of art, receive their orders under another section of Title X, actually, I believe. And that is the kind of training that 2024(c) was meant to apply to.

You're right that this is an initial tour of duty for him of AGR duty, but it was decided in the courts below and all parties agree that 2024(d) is the provision that applies, by virtue of the orders that he got -- the orders that he got, which are under Section 502, which is AGR duty.

The open-ended language of Section 2024(d) is to be contrasted with the fixed temporal limits to be found in other subsections of 2024, which apply to reservists and others who perform active duty in the armed forces. Section 2024(a), for example, which governs those who enlist on active duty, provides at least 4 years of job protection, and in some cases, 5. The same applies to subsection (b).

QUESTION: Yes, but under that one, I guess it's under (b)(2), he's got to reapply, doesn't he, for a job?

MS. WAX: Yes, Your Honor.

QUESTION: And here he just shows up and says I want to go to work.

MS. WAX: Correct, Your Honor.

QUESTION: And also, isn't there a difference in their protection from discharge after they get back?

MS. WAX: Correct.

QUESTION: How does it make sense to say you're protected from discharge under (a) and (b) and you get no protection under (d), when you might be away even longer, as you say?

MS. WAX: Right. Well, the answer is that the reason for this disparity in features for active duty, for training on the one hand and active duty on the other, can be explained without reference at all to differences in duration. Individuals who are on active duty see combat, they're in harms way. They are subjected to -- they are essentially members of the fighting force. Very often they are. And therefore, Congress could have made the judgment that those individuals need more protection in the form of a period to readjust to civilian life.

QUESTION: Yeah, but why should they have to reapply instead of just showing up like these people do?

MS. WAX: Well --

QUESTION: That cuts the other way on that part of it.

MS. WAX: On the other hand, probably in exchange for these greater protections, a post-discharge -- a post-return discharge protection, a longer period to reapply, the Government -- Congress decided to give employers a sort of quid pro quo of leeway to put the person in their old job or in another job, for example. And the reapplication process is a way of letting the employer decide whether he's going to return them to their old job or an equivalent job, which is what employers are committed to do for individuals returning from active duty.

QUESTION: I thought you were going to answer by saying when it was originally drafted, (d) really did just apply to short leaves for training, like not over about 3 months, or so. And then there was an amendment later on that picked up this AGR duty.

MS. WAX: Your Honor, that's another answer to the question. I think the answer has two parts. One is that duration is not necessarily the explanation. The other is that Congress may have geared --

QUESTION: As originally drafted, isn't it fair to assume that Congress thought these were all short-durational training leaves?

MS. WAX: Well, at the time it was drafted, the only leaves were the short leaves which are listed in the legislative history, Your Honor. That is correct. But Congress drafted the statute in an open-ended way. It didn't put the fixed limits on the statute that it could have put, and in fact, put in other sections like 2024(a), (b), and (g). So our position is that the fact that certain short training duties -- tours were the only ones that existed at the time this statute was enacted, doesn't really prove anything because Congress did not do what it could have done, which is simply to limit the reach of 2024(d) and make it an inflexible statute, and make it an inflexible provision that put a ceiling on the leaves, essentially.

QUESTION: Were any of those short training leaves at the time the statute was first enacted wholly voluntary in the sense that this one was not? I mean, as I understand it, this particular individual applied for this 3-year duty. I mean, he put himself in a position of being ordered to be away 3 years. Were the short-term trainees to whom you referred in a different position whereby they would be subjected to it willy-nilly?

MS. WAX: No, Your Honor. The provision that was enacted in 1960 was intended to cover reservists, and the Reserve forces were manned by volunteers. They always have been manned by volunteers. So one has to volunteer to be a member of the Reserve. The short training duty that applied to the reservists, the 1 weekend a month and 2 weeks a year training that existed in 1960, that was something that you had to do if you wanted to be a member of the Reserve.

So the fact that this is voluntary --

QUESTION: That was kind of essential to the status of being a reservist, whereas this particular training assignment is not. Isn't that fair to say?

MS. WAX: Well, it's not required of you in order to be in the Reserve, but Your Honor, we don't think anything turns on that. First of all, for what it's worth, no court of appeals that has looked at this, and some of them have actually looked at this particular issue, has ever found it relevant on the text of the statute, whether an individual volunteers or not. Because there's just no basis for distinguishing between the two.

But beyond that, we would take the position that this sort of duty or other training duty that might be encompassed by this provision is in its own way just as vital to the proper performance of the Reserve forces as the standard required training duty. I mean, if neither of them existed, or if either of them didn't exist, the reservists simply would not be a ready fighting force. The training that is now required is just a result of the Reserve forces being a far more technical complicated fighting force.

Now, the Eleventh Circuit's ruling is not just an untenable reading of the statute's terms, but it also has untenable consequences. Usually when a party comes before this Court and asks it to disregard the plain language of the statute, it suggests or its reason is that departing from the plain language would better serve the underlying purposes of this statute. But of course here, the very opposite is the case.

First of all, the Eleventh Circuit's test, with its emphasis on duration and a per se rule, would in effect deprive all 35,000 members of the National Guard who serve in Active Guard Reserve status of any protection whatsoever. They would have no reemployment rights because they are required to serve for 3 years. And this is particularly anomalous in light of the protections afforded to members of the Federal Reserve components who server in AGR, those individuals are considered to be on active duty under Title X, and they are entitled to protection under the provisions that apply to active duty, which give at least 4 years of protection.

So one would have a situation in which members of the National Guard who perform exactly the same functions as Federal reservists would have nothing, and the Federal reservists would have full protection.

QUESTION: Ms. Wax, I know it's irrelevant to our decision in the case, but are there any pending efforts in Congress to sort of make these statutes a little more compatible than they are now in the fashion they ask they be interpreted?

MS. WAX: Your Honor, to my knowledge, the Department of Labor and the Department of Defense in the wake of Operation Desert Shield and Storm has attempted to draft a new statute that would rationalize this scheme to some extent. The -- as far as I know --

QUESTION: Because it just doesn't fit together the way you would think it would if somebody were looking at the whole problem and trying to draft legislation.

MS. WAX: Well, Your Honor, we don't really agree with that. We think that it actually works quite well. It certainly allows the military the flexibility that it needs and that time has shown it needs to respond to changing times, the demise of the draft, the ascending importance of the Reserve forces, and the concomitant technological complications of modern warfare. So we think that the provision really is quite well drafted to comport with changing times, so to speak.

Now the features that respondent tries to point to, which somehow are supposed to show that this provision just can't be applied to long-term duty, we don't think show anything of the sort. For example, that these people are entitled to a leave of absence, a leave of absence for a term of years. Well, the fact is that it's possible to take a leave of absence that lasts years. There are individuals in our office who have taken a year's long leaves of absence to serve the Solicitor General. It's possible to return to your job at the next regularly scheduled working period.

I know people, I've done it myself, who finish one job on Friday, travel to a far city, and start another job on Monday. I mean, these things certainly can be done.

We agree that Congress may have geared the provision overall to shorter periods, but that doesn't mean that they can't be applied to longer periods. One doesn't follow from the other.

QUESTION: Ms. Wax, what you said earlier about how accepting the respondent's position would cause National Guard members to be at a disadvantage compared with Federal Reserve members, what provision governing members of the Federal Reserve did you have in mind?

MS. WAX: Federal reservists who serve in the Active Guard Reserve are called under 10 U.S.C. 672(d), which governs active duty on a voluntary basis. That is cited in our brief, Your Honor, footnote 25. And those individuals receive -- because they are considered to be on active duty -- that's the classification that applies to them, under 10 U.S.C. in Federal status, they are covered by Section 2024(b), which gives reemployment rights to reservists who serve on active duty.

The reason why these two different classifications exist is mainly because AGR personnel in the National Guard serve in State status. In order to serve in State status, they have to receive orders under Section 502. They're attached to their State National Guard unit. It's really just a classification scheme that the military has come up with, but it does have a rationale.

QUESTION: But is (b) that covers them.

MS. WAX: Correct. The Federal.

QUESTION: Yes, the Federal.

MS. WAX: Yes.

QUESTION: Which is what I suspected, although I didn't know how you got there. But (b) does at least have some limitation period, does it not?

MS. WAX: Four years, Your Honor.

QUESTION: Yes.

MS. WAX: But --

QUESTION: And you're arguing -- I mean, so you argue, gee, the -- you know, if you accept the respondent's position, Federal reservists will be treated enormously more favorable than National Guard people. But he can make just the -- a similar argument. He says, if he accepts you position, National Guard will be treated more favorable then the Federal Reserve, which seems even more absurd. There's no way to make it work.

MS. WAX: Well, actually, they won't in practice, Your Honor. Because Congress created an AGR tour knowing that the AGR tour was supposed to replace civilian military technicians who serve for 3 years. And this 4-year ceiling existed in the provision for Federal Reservists, so Congress knew it didn't have to worry. These people were protected for a full tour.

But they also know that the National Guards people didn't have to worry either because 2024(d) didn't have any limitation. Now if at some future point they create a 6-year tour of duty, obviously the Federal Reservists have a problem, and Congress may have to fix it. But given the tours that existed, there was no problem to fix.

I'd like to reserve the rest of my time.

QUESTION: Let me ask one quick question, just to help me out. In your long footnote toward the end of your brief where you say -- it ends up the section would provide same reemployment rights as current law provides following duty under sections 503 through 505. And I could look that -- what do 503 and 505 -- do they refer to active duty or do they refer to training?

MS. WAX: No, they're training -- provisions that govern training duty by National Guards people, I think, as far as I recall, Your Honor,.

QUESTION: Very well, Ms. Wax.

Mr. Hopkins, we'll hear next from you.

ORAL ARGUMENT OF HARRY L. HOPKINS ON BEHALF OF THE RESPONDENT

MR. HOPKINS: Mr. Chief Justice, and may it please the Court:

I would like to emphasize one particular point in reply, and that's regard to the claim that Congress enacted the AGR tour. And I have brought to Court today Army regulation, a 16-page document that governs the AGR. It's an Army regulation. And I find no where that it has been adopted by Congress, except perhaps in an appropriations act. I would like to share with the Court a few of the provisions in interpreting this statute.

QUESTION: Is this somewhere in your brief or in the record?

MR. HOPKINS: It is in the Government's brief.

QUESTION: In the Government's brief.

MR. HOPKINS: It's cited as Army Regulation No. 135-18. It says, and I'm going to be brief, a program that offers career development and upward mobility that encourages retention. And I recite that to the Court because I'm expected to send my person on a mandatory leave of absence under a program that encourages retention by the new employer?

QUESTION: Good point.

MR. HOPKINS: I also point this out to you, that AGR personnel will be ordered to active duty or full-time duty for 3 year periods. Now, that's what we've stated the issue to be here, and I'm the one that drafted the letter denying the 3 years. But the program goes on to say personnel may be extended at their current duty station or reassigned at the conclusion of each 3-year period, if ordered to a subsequent tour. And they are stabilized, which basically means they can't be moved during the first period, but they can during the subsequent periods.

I will move on quickly to say that it says that there are provisions for retention up to 20 years, and it specifies the program -- the pension program that would be eligible. Now I submit, Your Honor, and I take issue with the Government, and I think the Government misconceives my argument and misunderstands it when I say that a leave of absence of 3 years is unheard of. And I am not talking about the military. What I am talking about a labor council for 30 years, that would approve or negotiate a contract that would say my employee in my factory would be entitled to a 3-year leave of absence. And I say no, unequivocally.

Now I look to be able to bring something to the Court on that issue. Leave of absence agreements are primarily private agreements, primarily negotiated, primarily in a labor contract, or in at-will employee policies.

QUESTION: Well, you'd have to do it, like it or not, under some of the other provisions of Section 2024.

MR. HOPKINS: Precisely. Precisely. And we have to do it, Your Honor, also, as happened in Desert Storm. This person has no connection whatsoever with Desert Storm. But I had to do it this time under the other provisions for the other people as well, including the senior vice president of the hospital went away because he was called away, ordered pursuant to this statute.

And I suppose that another point that would be important to the Court in interpreting this difficult statute, and I'm afraid, Justice Scalia, I must understand in the prior case when you say words don't mean anything anymore. And I'm afraid I'm asking that they oftentimes don't mean anything.

QUESTION: Or maybe have a different meaning.

MR. HOPKINS: Different meaning, yes, Justice Kennedy.

What I'm trying to say is that in 1960, when this law was passed, someone -- able, I suppose, legislator -- sat down and they wrote out provisions for the sections that were involved and very carefully gave the inductees unlimited rights. And I hope no one claims that they should not be given virtually unlimited rights in terms of duration. They gave volunteer persons a 4-year limit.

And they worked down the statute with what they had to work with until they got to the bottom of the statute, and in accordance with the Universal Military Training Act that gives birth to 2024(d), it provided initial duty -- initial period. And that's when a person went off, a civilian for the first time, and went off and took a 3- to 6-month training program. No question but what Sky King did that long before this event occurred.

Once a civilian went off and took that initial training period, that person had a Reserve obligation. And Justice Souter, I'll answer your question. If you stay in the Reserves, you must satisfy the Reserve obligation. And usually the Reserve obligation is to go to drills, weekend drills once a month, and also summer camp. And I would submit that those are required. But I also agree with the Government that the voluntary nature of these programs in the cases that have been decided, have said that that's not a proper point to distinguish these cases.

If someone interpreted leave of absence and return in terms of the Perpich case, I pulled a quotation from that, that the Court decided in 1990. It doesn't have any bearing on this case except the hat analogy. And it says basically these people have three hats, they have a State militia hat, and they have a Federal National Guard hat, and a civilian hat. But Justice Stevens, I believe, authored those remarks. I would submit to say that someone under the AGR program, the civilian hat would get mighty dusty if they had a 3-year leave of absence, perhaps extended to 10 to 15 to 20.

A common person writing this statute and interpreting it pursuant to 1960 standards, would automatically conjure up the idea that a Reservist or a National Guard is a part-time person. And if I grant a leave to part-time person, that's one thing for part-time object or policy.

Where I draw support, quite frankly, for the 90-day limitation, and the way I would interpret the statute -- and I'm afraid it's gotten beyond my ability to suggest an interpretation, but I would suggest that at no time did Congress intend that the 2024(d) durational rights or limits would exceed those of 2024(c), a minimum of 90 days, a maximum usually of 6 months. Legislative intent is clear. And I'll answer that question in terms of the reference to 502, 503, 504, and 505, those are National Guard Authorization statutes that define training of short duration.

In 1960, 90 days would have probably have been the limitation. It covers everything from a 2-hour drill period to a weekend drill period to a school that ordinarily would last a month or two. And that's the way the statute is structured. You look at 2024(d), it talks about these unusual programs -- they call them active duty for training. And then you look at 2024(f) and it says, oh, by the way, if you want a definition of that, you have to look at 502.

I would also say in response to a comment that was made about a later amendment from the 1960 enactment, and I certainly speak not of the 1974 -- recodification, which didn't change anything. I would encourage the Court to carefully look, and hope they'll find support for my position that it has not been amended.

There was an amendment in 1980, in 1980. The most curious amendment I think I could possibly see in the case. We have two different classes. You've got active duty for training and inactive duty for training, both referenced in 2024(d). Prior to the amendment, the Congress says you must look at 502, 503, 504, and 505 to find out what that is. And at the same time they're saying that they're saying these are short-term programs.

And then in 1980, they simply moved 502(f) from -- they didn't move it from inactive, they moved it to active duty, but left it in inactive. Did not tell us anything about durational limitations or frequency, but simply a recognition, in my humble opinion, that there was some active duty for training or other duties under 502(f).

And if the Court would please go back to the enacting legislation, you will see there is a reference in that history to summer camps. And the Senate referred to summer camps as active duty for training.

QUESTION: May I interrupt, Mr. Hopkins, this is kind of a critical part of the whole problem, as I see it. Your opponent argues that this was -- you started your argument pointing out the AGR program had been created by regulations of the Army or the Department of Defense. And -- which I take had developed this concept of full-time service which is now a form of training for 2 or 3 years, like this man.

And they say that this 1980 amendment was intended to give protection to those people who would otherwise been totally unprotected as I understand because they weren't on active duty within the meanings of the earlier subsection, and they weren't covered by (d) because that was a short-term limitation.

In other words, that this section the 1980 amendment was specifically intended to pick up people in this rather small category. Is -- what's the response to that?

MR. HOPKINS: Your Honor, I respectfully disagree. Now, Justice Scalia, if words don't mean anything, the intent of Congress probably doesn't mean anything in this context because it comes in so many different direction. It comes in authorization acts, in an appropriations acts. I'm talking about --

QUESTION: Well, this is not an appropriation today.

MR. HOPKINS: That's right. I'm talking about it does not say anything in 1980, about doing anything other than recognizing that there is active duty for training under 502(f).

QUESTION: Well, it says for the purposes of subsection (c) and (d) of this section, full-time training or other full-time duty performed by a member of the National Guard under section -- several sections, including 502 -- is considered active duty for training. And that seems to bring it within 502(d). I mean, I still don't quite understand why -- or you're just saying well, this is a mistake. That if you read it literally it would cover it, but it was not intended.

MR. HOPKINS: I'm saying, Your Honor, that certainly there was a recognition when 502, or when this 1980 amendment was made, that there was active duty for training under 502(f), and also under these other statutes.

QUESTION: Let me ask this question a little differently. Prior to 1980, if this amendment had not been adopted, and this man had gone on this 3-year program. Would he have had any reemployment rights at all under the statute in your view?

MR. HOPKINS: Yes.

QUESTION: Under what section?

MR. HOPKINS: Well, certainly under 2024(d), and then the way I interpret that, he would have been entitled to a leave to attend to summer camps, got to drills --

QUESTION: No, no, no. That's not my question. My question is a person like this man who accepts a 3-year assignment like this, prior to 1980 amendment, would he have had any -- and it was purely a training assignment as I understand it -- would he have had any reemployment rights at all under any provision of the act? I don't think he would have.

MR. HOPKINS: Justice Stevens, I think I understand that. There is a question in these cases about whether or not this was training or other duty. And in 1964, Congress added the other duty part to 502(f). And I put in my brief the congressional intent surrounding that enactment. And what I say quoting from the Senate reports in the history, is that that was designed to, for benefit purposes, in case someone had to go on another very short-term session to attend another drill that same week.

So I suppose to get back, I don't know that I can answer the question that you propose because I don't believe today this person is entitled to this kind of leave -- and certainly I don't believe he was then. Quite frankly, I see no difference in this person working for the Federal Deposit Insurance Corporation or the State of Alabama in the Attorney General office.

QUESTION: Then what was the purpose of the amendment that Justice Stevens has been talking about if it was not that?

MR. HOPKINS: The purpose of the amendment was to recognize that there was some active duty for training under 502(f). Now, I maintain that since there is not a definition or description of that, that it could just as easily be 2 weeks' summer camp, a recognition of a 2-week summer camp, as it could be for drill training which is comparably required under 503, or some other very minimal short-term school.

QUESTION: Is it possible to argue, because that -- the 1980 amendment refers to both subsection (c) and (d), did they really intend that he have the rights that were provided for under subsection (c), which would then have a duration limit on it, active duty -- and refers to active duty.

Oh, that's if less than 12 months. I see. I'm sorry.

MR. HOPKINS: I think there some durational limitations, and that's where I draw the source of my argument from is the fact that a 2024(c) does in fact include those durational limitations.

QUESTION: Mr. Hopkins, I guess the only, for those of us who, you know, believe in words, what you're trying to invite us to hang the difference on, I guess, I think, is the phrase "leave" -- "leave of absence." Is that included in any of the other provisions here? None of these other provisions use that term.

MR. HOPKINS: No. Le

QUESTION: They just say he must be rehired. And your argument is when they say leave of absence there, they're talking about something that you say must be -- shall be -- shall upon request be granted a leave of absence, they obviously mean, what in your view, a leave of absence always means -- that is, a relatively brief permission for departure.

MR. HOPKINS: Yes.

QUESTION: Because you never -- a leave of absence, you never leave the employment status, do you? You just return to work.

MR. HOPKINS: That's my opinion. That's correct. And I would say this in further amplification, the return provision -- the statute was written for some person in a factory and in a law office, hanging up his apron, going to summer camp or going to summer drill, someone filling in temporarily, while this person was gone, and coming back and taking his apron off of that hook, putting it on and resuming work. And the reason I argue that it won't fit in this case is 3 years is simply too long to let the apron hang there.

QUESTION: He doesn't even have to give notice before he comes back, right? He just shows up the day after the release -- after he's released from the Army. There's a new supervisor, it's 12 years later, and he says, well, here I am. The supervisor says who are you.

MR. HOPKINS: And I say that's a clear signal of the intent that you must interpret this statute with the background of the common meaning that Reserves are part-time soldiers and they're full-time workers. And we need to strike that accommodation.

Now, when we -- I have covered in brief certain other amendments, authorization and appropriation and definitional changes, and I would submit to the Court that they don't make any difference. They don't amend or modify or tell me or this Court that someone under an AGR program is entitled to any leave of absence, much less 3 years. It's just the implications are that the Congress --

QUESTION: Well, I understand all that about the leave of absence. But I must confess now, Mr. Hopkins, having read the statute again, I'm not sure why this man might not have rights under subsection (c). And they would then -- he would have to follow the re-employment procedure, and he would be a person rather than an employee. All the language that you emphasize in your brief wouldn't apply.

MR. HOPKINS: Your Honor, in my opinion, to answer that you would need to read the structure of intendment of the Universal Military Training Act, where the idea was so that we could return employees to the work place to create a system whereby we would allow civilians to have an initial period of training, and then we would ask that they participate in these short-term programs after that.

So I simply say that it's clear in my mind --

QUESTION: Well, that relates to (d), but (c) contemplates longer periods of service.

MR. HOPKINS: Contemplates a minimum of 12 weeks.

QUESTION: Right. And this person satisfies that. He has 3 years.

MR. HOPKINS: I would respectfully say -- and I don't have the citation here not anticipating that question -- but I would respectfully say that that concerns a person who initially joins the Reserves who is initially involved in the Reserve program. And that person goes away for training that lasts a minimum of 12 weeks. Ordinarily not over 6 months. And that's the intendment, in my opinion, of (c).

QUESTION: Well, I don't know, maybe I'm reading these wrong. Is there a difference between being ordered to an initial period of active duty and volunteering? I mean, (c) applies to any member of Reserve component who is ordered to an initial period of active duty for training of not less than 12 consecutive weeks, whereas this fellow really said take me.

MR. HOPKINS: In my opinion, this person volunteers, but he's then ordered. He receives orders.

QUESTION: That doesn't make the difference?

MR. HOPKINS: That's --

QUESTION: Well, then I don't see why he's not covered by (c) either.

QUESTION: But you seem to concede he's not covered by (c)?

MR. HOPKINS: Yes. I do not see any basis at all. Having been involved, and we have you know, I'm not going to say he couldn't be, but --

QUESTION: But under (c), you wouldn't have to give any duty to give him a leave of absence, so your opinion would have been absolutely right. He's not entitled to a leave of absence. But he might have a right to reemployment at the end of the 3-year period if (c) applies.

MR. HOPKINS: Yes.

QUESTION: And then all your language problems in your brief seem to me would be sound. Or maybe there's an answer to them. Ms. Wax will tell us, but --

MR. HOPKINS: Your Honor, we have toyed the issue questions 2024(d), and I'm here to say that it may -- I would not be troubled nearly as much if it were 2024(c) as it is 2024(d). But quite honestly, it doesn't cover that and the universal --

QUESTION: Well, Mr. Hopkins, didn't Ms. Wax tell us that the term "initial active-duty training," or "initial active duty for training," as used in subsection (c) is a term of art and doesn't cover this person?

MR. HOPKINS: Yes.

QUESTION: Now, I don't enough about Army regulations to know, but was that her explanation?

MR. HOPKINS: Yes. And I don't mean to say that I know anything about Army regulations, but I think the answer --

QUESTION: Well, you sound like it.

(Laughter.)

MR. HOPKINS: Quite honestly, the last time I saw any orders was when I was in the Korean conflict, and I hoped then that I never saw another one. And then I picked this one up, and still don't understand it.

But in my opinion, 2024(c) would typically involve a high school graduate that goes to the Reserve office and signs up and goes off on an initial period of active duty for training. And when that person, ordinarily and usually a young person, finishes that initial period, that person then comes back to the work place and then begins the drills and the summer camps.

QUESTION: How long is that initial period typically for the young person you're referring to?

MR. HOPKINS: It's typically, based on my reading, 6 months. The statute protects down to at least 12 weeks, but it's ordinarily from 12 weeks to 6 months in duration. And I think that ambiguity will be resolved upon a study of the Universal Military Training Act, because that's the scheme of things that put all of this together. And the scheme was let's send these people, require them initially, to take this training.

QUESTION: And they wouldn't be covered if they'd been on a weekly program, or one of the regular programs of once a month weekend duty and two weeks, so forth. And then the following year took a longer period, they would be excluded because of the word "initial."

MR. HOPKINS: Yes. In my judgment, and as I report to you, the word --

QUESTION: It is initial in the sense it's their first period of duty of longer than 12 weeks. So it may not be their first period of duty, but it's the first period of that duration. So you can handle the word "initial" if that's the only problem. At least I think you can.

MR. HOPKINS: Well, I would simply say that I read "initial" in the sense that I think it was intended. And I would not be troubled under my situation if it were applicable, because I would not have to hold this job for this person. I would not have to insist that he come back at the next shift and take his apron after such an extended period of time.

QUESTION: Well, we will see what we can do, but Ms. Wax tells us that that's not permissible.

MR. HOPKINS: I would also like to speak to the guidance that the Government claims should come from the handbook. And I would like to cite to the Court, Justice O'Connor has already alluded to the change in the handbook, and the Government has cited another case. I would like to cite what I think are the principal case of Skidmore.

And the Skidmore case says that -- certainly use it as guidance if it is guidance -- the reviewing courts should not blindly defer to agency interpretation, and the amount of deference warranted in a particular case will depend upon a thoroughness evident in it's consideration, the validity of its reading -- reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade if lacking power to control.

And I would say that one of the arguments in this case has to do with a compromise agreement. I suppose that at some point -- well, I know at some point in the history of the development there were some statutes, or it's court decisions that suggested that perhaps there is a 90-day limitation on this point. So in Montgomery, Congressman Montgomery passed a House bill that says instead of -- he doesn't allude to the AGR and all this expansive period, he says let's give a Reserve person, or a National Guard person a total of 1 year out of 3. And that did not pass the Senate.

QUESTION: Thank you, Mr. Hopkins.

Ms. Wax, do you have rebuttal? You have 4 minutes remaining.

REBUTTAL ARGUMENT OF AMY L. WAX ON BEHALF OF THE PETITIONER

MS. WAX: Yes, thank you. On this issue of 2024(c) versus 2024(d), it is true that initial active-duty training is a term of art and it's a term of art on an historical basis. On page 5 of our brief, we say that in 1955 Congress enacted the predecessor to 2024(c), which has really not substantially changed since that time, to protect reemployment rights for a period of full-time, intensive, initial active-duty training.

QUESTION: But it was changed in 1980, and you rely on the 1980 amendment. That amended 502(c) as well as (d).

MS. WAX: That's correct, Your Honor. And to that extent, we are willing to have this Court find that this gentleman's reemployment rights are conferred by 2024(c). I mean, if this Court wants to interpret the term "initial" that way, we certainly have no objection to it from our point of view. Because it would give Mr. King the coverage he needs.

QUESTION: What way? What way? Interpreted what way? As though it did not exist?

MS. WAX: No. To be covered by 2024(c) as opposed to (d). It has been our --

QUESTION: No, no. How do you interpret the word "initial" that it would cover this situation?

MS. WAX: Your Honor, we adhere to our position that "initial" is a term of art that refers to a prescribed period of training that everyone has to do.

QUESTION: So what you're saying is if we choose to ignore the word "initial" you don't mind.

MS. WAX: If you choose to give another meaning to the word "initial" we don't mind.

(Laughter.)

QUESTION: No, it's neither of those. If you choose to read the amendment in 1980 when it says for those purposes full-time duty performed as a member pursuant to these things shall be considered active duty for training, a concept that concludes initial active duty for training as well as subsequent to initial active duty. It's a question of interpreting the language in the 1980 amendment which changes the meaning of the two earlier statutes.

MS. WAX: I take it that you think that in fact 2024(f) amended both (c) and (d) essentially.

QUESTION: Well, it says so. For the purposes of subsection (c) and (d) and to treat them equally. It didn't say anything separate about (d). Your brief only talked about (d), and I didn't realize it until I looked at it this morning, that it applies equally to both.

MS. WAX: Your Honor, we think that's one plausible interpretation.

QUESTION: The whole statute fits together very nicely if you do it that way, because then (d) refers to training of periods less than that specified year, and (c) refers to those longer. And therefore, the longer ones, the man has to reapply. The shorter periods, he just shows up for work and says give me my job back.

MS. WAX: Your Honor, that's one plausible interpretation. We don't want to undercut our own position by pointing out that (d) doesn't say anything about periods less than 90 days, but --

QUESTION: But it was clearly interpreted as -- I mean, it was understood obviously from the text and the difference in language, the original draftsmen were dealing with the problem of shorter periods.

MS. WAX: That's all that existed at the time, yes.

QUESTION: Well, if you cover -- if he's got some relief under (c), you don't even need to consider (d).

MS. WAX: True. Well, we think under Justice Stevens' --

QUESTION: Because (d) says if no relief under (c), you get it here.

MS. WAX: Your Honor, under Justice Stevens' theory, he'd have relief under (c) or (d). As to what happened in 1980, we think that even if the statute before that didn't cover anything but shorter tours, the amendment in 1980 surely not only expanded the category of individuals covered by (d) or (c) or both, but also the duration. There's no question about that because it's for the period required to perform duty.

Now, I want to say one thing about respondent's position. I confess to being totally confused as to what respondent's position is. On the one hand, he ties his viewpoint to the legislative history, the fact that only certain prescribed periods of duty existed at the time the statute was enacted, up to 90 days. On the other hand, he endorses a free-wheeling reasonableness test, which has been applied by the court of appeals to permit leaves of absence for far longer than 90 days.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Wax.

The case is submitted.

(Whereupon, at 12:03 p.m., the case in the above-entitled matter was submitted.)