WILLIAM "SKY" KING, PETITIONER V. ST. VINCENT'S HOSPITAL

   No. 90-889

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Eleventh Circuit

                       Brief For The Petitioner

                       PARTIES TO THE PROCEEDING

   The parties to this proceeding are William "Sky" King and St.
Vincent's Hospital.  /1/

            TABLE OF CONTENTS
   Question Presented
   Parties To The Proceeding
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Introduction and summary of argument
   Argument:
       I. Section 2024(b) of the Veterans' Reemployment
          Rights Act does not condition the right to a
          leave of absence on the reasonableness of the
          request for leave
          A. A reasonableness requirement is contrary to
             the plain language of Section 2024(d) and
             negates its core purpose
          B. Nothing in the history or evolution of
             Section 2024(d) warrants departure from its
             terms, which unequivocally protect the
             reemployment rights of Reservists in
             petitioner's position
          C. The courts should defer to the decisions of
             Congress and the Executive Branch as to
             which tours should be considered "active
             duty for training" entitled to full reemployment
             rights protection under Section 2024(d)
      II. Even if a reasonableness test applies, petitioner's
          request for leave to serve in the AGR Program
          was reasonable
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 901 F.2d 1068.  The opinion of the district court (Pet. App.
13a-22a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 22, 1990.
A petition for rehearing was denied on August 21, 1990.  Pet. App.
24a.  On November 9, 1990, Justice Kennedy extended the time within
which to file a petition for a writ of certiorari to and including
December 17, 1990.  The petition was filed on December 5, 1990, and
granted by this Court on February 19, 1991.

   The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The principal statutory provision involved is 38 U.S.C. 2024(d),
App., infra, 4a-5a.  Also reprinted in the Appendix are 32 U.S.C.
502(f) (App., infra, 1a) and 38 U.S.C. 2024 in its entirely (App.,
infra, 1a-6a).

                          QUESTION PRESENTED

   Whether an employee's right under 38 U.S.C. 2024(d) to leave of
absence from employment to serve in the Armed Forces of the United
States is conditioned on the "reasonableness" of the employee's
request for leave.

                               STATEMENT

   1. The question in this case is whether petitioner, a member of the
National Guard, is entitled to a leave of absence from his civilian
job to serve for three years in the Active Guard/Reserve Program.
Analysis of this question requires consideration of the role of the
National Guard and the Reserve forces, and of the evolution of the
statutory provisions designed to protect the reemployment right of
members of the Reserves.

   The petitioner in this case is a member of the Army National Guard
of the United States -- one of the seven Reserve components of the
Armed Forces of the United States.  /2/ See 10 U.S.C. 261.  National
Guard members, in their federal capacity, are part of the Reserve
Corps (known as the "Ready Reserve") of the Army.  In accordance with
a dual enlistment system dating from 1933, see Act of June 15, 1933,
ch. 87, Section 582, 48 Stat. 155, under which every member of the
Army and Air National Guard of the United States is "a Federal
reservist as well as a State militiaman," H.R. Rep. No. 1066, 82d
Cong., 1st Sess. 9 (1951), petitioner serves at the same time as a
member of the Army National Guard of the United States and of his
state National Guard (the Alabama National Guard).  See Perpich v.
Department of Defense, 110 S. Ct. 2418, 2426 n.19 (1990).

   Members of the National Guard and of the Federal Reserve components
(see note 2, supra) are available to be called to active duty during a
war or in a National Emergency.  See 10 U.S.C. 672(a), 673(a).  The
President also has the power, in the absence of such an emergency, to
call up members of the Reserves either for "active duty" or "active
duty for training" of varying duration.  See Armed Forces Reserve Act
of 1952, ch. 608, 66 Stat. 481;  Perpich v. Department of Defense, 110
S. Ct. at 2420-2421 n.1.  /3/ Members of the National Guard may be
ordered to serve training or other duty under Title 10 as members of
the Ready Reserve of the United States.  They may also serve tours of
duty under the authority of Title 32 (Sections 501 through 507), which
governs training and other duty in the Army and Air National Guard of
the United States.  /4/

   2. Reservists are citizen soldiers.  As such, they ordinarily hold
civilian jobs from which they must be absent if called to train or
serve on active duty.  Like other members of the Armed Forces of the
United States, Reservists enjoy reemployment rights guaranteed by
statute.

   a. Statutory reemployment rights for members of the Armed Forces
date from the Nation's first peacetime draft law, enacted in 1940.
Section 8 of the Selective Training and Service Act of 1940, ch. 720,
54 Stat. 890 (the precedessor of the provision now codified at 38
U.S.C. 2021(a)) provided that a veteran returning from active duty was
entitled to be reinstated in his previous civilian position.

   In 1952, "in order to strengthen the Nation's Reserve Forces," see
Monroe v. Standard Oil Co., 452 U.S. 549, 555 (1981), Congress for the
first time granted job reinstatement rights to members of the Armed
Forces, including Reservists, upon return from "training duty." See
Universal Military Training and Service Act of 1951, Pub. L. No. 51,
Section 1(s), 65 Stat. 86-87.  /5/ In 1955, Congress enacted another
provision (now codified, as amended, at 38 U.S.C. 2024(c)) that
protects reemployment rights for a period of full-time, intensive,
initial active duty training (IADT) that is required of some
Reservists.  The 1955 enactment granted Reservists returning from such
tours (which were to run from three to six months) the same
reemployment rights as inductees.  See Reserve Forces Act of 1955,
Pub. L. No. 305, Section 262(f), 69 Stat. 602.  /6/

   b. In 1960, Congress amended the law regarding leaves of absence
for "active duty for training," retaining a separate section for IADT,
and expressly extending rights under that section to members of the
National Guard.  Congress also added the provision at issue in this
case, now codified at 38 U.S.C. 2024(d), which entitles Reservists and
National Guard members to a "leave of absence * * * for the period
required to perform active duty for training or inactive duty
training." See Act of July 12, 1960, Pub. L. No. 86-632, 74 Stat. 467;
 see also S. Rep. No. 1672, 86th Cong., 2d Sess. 1 (1960);  H.R. Rep.
No. 1263, 86th Cong., 2d Sess. 6-7 (1960) (setting forth amendments to
reemployment rights provisions then codified at 50 U.S.C. App. 459 et
seq.).

   c. The most recent revision and codification of the reemployment
rights provisions applicable to Reservists is chapter 43 of the
Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C.
2021 et seq., which is known as the Veterans' Reemployment Rights Act
(VRRA or the Act), 38 U.S.C. 2021-2026.  Section 2024(a) of the VRRA
gives protection for up to four and, in some cases, five years to the
reemployment rights of those who enlist in the Armed Forces proper.
Section 2024(b)(1) and (2) protect the reemployment rights of
Reservists ordered to active duty for a period of up to four years, or
longer under certain circumstances.  /7/

   Reservists and enlistees returning from such active duty are
entitled to reemployment in their previous jobs or in "position(s) of
like seniority, status, and pay," provided that they apply for
reemployment within 90 days of discharge from duty.  38 U.S.C.
2021(a).  Veterans returning from active duty may not be discharged
without cause for one year after reemployment.  38 U.S.C. 2021(b)(1).

   Under 38 U.S.C. 2024(c), discussed above, Reservists performing
IADT for a continuous period of not less than 12 weeks are entitled to
reemployment provided that they apply within 31 days of discharge.  An
employer may not discharge a Reservist returning from IADT without
cause for six months following reemployment.

   The provision at issue in this case, 38 U.S.C. 2024(d), protects
Reservists performing "active duty for training or inactive duty
training," other than IADT.  Section 2024(d) requires employers, upon
request, to grant Reservists and National Guard members a "leave of
absence * * * for the period required to perform" such duty.  Unlike
Sections 2024(a), 2024(b)(1), and 2024(b)(2), which cover "active
duty," Section 2024(d) contains no limitation on the length of
service.  Reservists are entitled to reinstatement in the same
position they previously occupied if they report back to work "at the
beginning of the next regularly scheduled working period." Ibid.  /8/

   3.  Petitioner William "Sky" King is a 35-year veteran of the
Alabama National Guard.  In June 1987, he applied to serve as Command
Sergeant Major, the highest post for an enlisted member of the state
National Guard.  The Command Sergeant Major, who assists and advises
the Adjutant General, /9/ serves in the Active Guard/Reserve (AGR)
Program, see Pet. App. 3a, 27a, which Congress created in 1980.  See
Department of Defense Authorization Act of 1980, Pub. L. No. 96-107,
Tit. IV, Section 401(b), 93 Stat. 807.  See also The AGR Program, 106
Mil. L. Rev. at 16-28 (describing the origins and nature of the AGR
program).  The AGR program authorizes members of the Reserve
components, including the National Guard of the United States, to
serve full-time tours of duty for the purpose of "organizing,
administering, recruiting, instructing, or training the reserve
components." Id. at 16.  Army regulations require AGR personnel to
serve three-year tours of duty.  Army Reg. 135-18, Ch. 2, Section II,
at 2-9 (1985).  /10/ Under 38 U.S.C. 2024(f), members of the National
Guard serving in the AGR Program in petitioner's capacity are entitled
to reemployment rights under 38 U.S.C. 2024(d).  See note 11 and pages
33-35, infra.

   On July 18, the Alabama National Guard informed King that he had
been selected for the position of Command Sergeant Major, and King
accepted immediately.  Pet. App. 3a-4a.  At some point between
mid-July and early August, King notified his supervisor at St.
Vincent's Hospital, where King was employed as manager of the security
department, that he had accepted a three-year position with the
Alabama National Guard.  Id. at 4a.  Although the National Guard told
petitioner that he would be informed on July 10 of the date he was to
report for duty, it was not until August 7 that he was told to report
on August 17.  As instructed, petitioner began his three-year tour of
duty on that day.  Id. at 4a-5a.

   On September 8, 1987, respondent notified petitioner by letter that
his military leave request was denied.  The letter stated that, in the
employer's view, petitioner's request for a three-year period of leave
was unreasonable and that petitioner therefore did not qualify for
leave under the VRRA.  Pet. App. 5a.

   4. The hospital then filed a declaratory judgment action in the
United States District Court for the Northern District of Alabama to
determine whether petitioner was entitled under the VRRA to a leave of
absence for his three-year tour of duty in the AGR Program.  The
district court concluded that petitioner's tour of duty fell within
the scope of Section 2024(d) of the VRRA.  See Pet. App. 18a & n.8.
/11/

   Applying the "reasonableness" test set forth in the Eleventh
Circuit's decision in Gulf States Paper Corp. v. Ingram, 811 F.2d
1464, 1469 (1987), /12/ the district court determined that, apart from
the length of the leave, petitioner's conduct in requesting leave was
not blameworthy.  See Pet. App. 18a-21a.  The court held, however,
that a request for a three-year leave was per se unreasonable and that
petitioner was therefore not entitled to reemployment rights under
Section 2024(d).  Pet. App. 20a-22a.

   5. The court of appeals for the Eleventh Circuit affirmed, with
Judge Roney concurring in part and in the result.  The court relied
heavily on its previous analysis in Gulf States.  There, although
acknowledging that "the statute does not address the 'reasonableness'
of a reservist's leave request," the court engrafted a
"reasonableness" requirement onto Section 2024(d).  Pet. App. 7a.  In
the present case, the court of appeals reiterated the Gulf States
standard, see note 12, supra, that the reasonableness of a request was
dependent, in large part, on the Reservist's conduct, and that a
request for leave "of exceptional duration" might amount to bad faith
conduct justifying denial of leave.  Pet. App. 8a.

   The court described the legislative history of Section 2024(d) as
"self-contradictory," Pet. App. 11a, but took note of the statement in
Monroe v. Standard Oil Co., 452 U.S. 549, 555 (1981), that Section
2024(d) was enacted "to deal with problems faced by employees who had
military training obligations lasting less than three months."
Observing that "(n)o case had been called to our attention in which a
leave of absence of as long as three years has been held protected
under Section 2024(d)" (Pet. App. 11a), the court invoked Church of
Holy Trinty v. United States, 143 U.S. 457 (1892), for the proposition
that a "literal construction" of a statute must be rejected to
"prevent an absurd, unjust, or unintended result." Pet. App. 9a-10a.
The court then found it necessary "to determine a definite limit
beyond which any leave would be unreasonable," and decided that a
three-year leave was per se unreasonable.  Id. at 11a.  Without
elaboration, the court added that, "even if we should find that the
trial court erred in finding a three year leave per se unreasonable,
we would nevertheless hold that on the facts of this case, considering
the factors outlined in Gulf States, the judgment of the trial court
should be affirmed." Ibid.

   In a separate opinion, Judge Roney agreed with the court's holding
that petitioner's three-year leave request "was unreasonable on the
facts of this case." However, Judge Roney disagreed with the court's
adoption of a per se rule because "it might work an injustice in some
future case." Pet. App. 12a.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   1. a. The question in this case is whether Section 2024(d) of the
VRRA entitles petitioner to a leave of absence from his job for a
three-year period of fulltime service in the AGR Program.  In
answering this question in the negative, the court of appeals
seriously misconstrued the language of the statute, diluted its force,
and undermined its purpose.

   The court of appeals read Section 2024(d) to grant a Reservist who
is called to "active duty for training" the right to return to his job
only if a court (balancing three factors) finds the leave request
"reasonable," and then ruled that petitioner's request for leave was
per se unreasonable.  In so deciding, the court substantially
curtailed the protections afforded by the VRRA by creating an
indeterminate and vague standard that generates uncertainty among
employers and potential recruits and frustrates Congress's decision to
provide economic security to those who serve in the Reserves.  The
judicially created "reasonableness" test transforms a concrete
entitlement -- upon which a Reservist can rely in deciding whether to
join the Reserves or commit to special training -- into a conditional
and ambiguous right upon which few would risk their civilian
livelihood.  In addition, the strict durational limit imposed by the
court of appeals creates a powerful disincentive to service in
training and other positions, such as the AGR, that require a
significant commitment of time.  The rigid per se rule established by
the court of appeals hobbles the Nation's ability to recruit
Reservists in pivotal support positions, and properly to train
personnel.  As a result, the readiness and integrity of the Reserve
components, and of the Armed Forces as a whole, is compromised.

   b. The court of appeals' construction of Section 2024(d) is
incorrect.  The requirement of "reasonableness" finds no support in
the text of Section 2024(d).  Nor is there any basis for judicial
qualification of those terms, since application of the statute as
written does not produce "consequence(s) * * * at variance with the
policy of the enactment as a whole." United States v. Rutherford, 442
U.S. 544, 552 (1979).  To the contrary, faithful adherence to the
broad terms of the statute is necessary to carry out Congress's goals
in enacting the VRRA:  to guarantee Reservists the benefit of secure
employment and to aid recruitment by removing an important
disincentive to service.

   The qualifications judicially superimposed on Section 2024(d) also
run contrary to the principle -- stated by this Court -- that
veterans' reemployment rights must be liberally construed;  these
qualifications are also at odds with this Court's admonition to avoid
interfering with the exercise of legislative or executive judgments
concerning military affairs.  Finally, the holding ignores Congress's
explicit determination that service in the AGR Program should come
within the scope of Section 2024(d) and receive full protection under
that Section.

   2. Even if a "reasonableness" rule may be applied to qualify the
right conferred by Section 2024(d), the three-year leave requested by
"Sky" King was not unreasonable.  Proper deference to the judgment of
military authorities should preclude a court from holding unreasonable
the duration of a requested leave to serve under a bona fide military
order.  Moreover, proper deference to congressional judgment in
establishing the AGR program requires that a tour of duty to serve in
that program be protected under Section 2024(d).  Finally, and
especially in view of the protection of longer tours of duty under
other provisions of the VRRA, three years is not an unduly long period
for a requested leave under Section 2024(d) of that Act.

                               ARGUMENT

      I. SECTION 2024(d) OF THE VETERANS' REEMPLOYMENT

RIGHTS ACT DOES NOT CONDITION THE RIGHT TO A LEAVE OF ABSENCE ON THE
REASONABLENESS OF THE REQUEST FOR LEAVE

   A. A Reasonableness Requirement Is Contrary To The Plain Language
Of Section 2024(d) And Negates Its Core Purpose

   1. Section 2024(d) is written in broad and unqualified terms.  It
mandates that leave for reserve duty covered by that Section "shall
upon request be granted," and that Reservists "shall be permitted to
return to (the) position(s)" they would have occupied "had (they) not
been absent for such purposes." As the Fourth Circuit recently
observed, the language of Section 2024(d) is "unequivocal and
unqualified." Kolkhorst v. Tilghman, 897 F.2d 1282, 1286 (1990),
petition for cert. pending, No. 89-1949;  see also Monroe v. Standard
Oil Co., 452 U.S. at 553 n.7 ("(Section 2024(d)) compels employers to
grant leaves of absence to employees who must attend reserve
training") (emphasis added).  And, as the Third Circuit noted,
"(Section) 2024(d) does not contain on its face any limitation of the
duration of the leave of a reservist for the purpose of carrying out
duty for training." Eidukonis v. Southeastern Pennsylvania Transp.
Auth., 873 F.2d 688, 693 (1989).  See also Cronin v. Police Dep't, 675
F. Supp. 847, 850 (S.D. N.Y. 1987) ("(Section) 2024(d) contains no
express limitation with respect to the duration of protected military
leave for training.").  There can be no doubt, then, that the language
of Section 2024(d) imposes no durational limit, nor any qualification
of any kind, upon the right of a Reservist who requests leave to
return to his civilian job after taking that leave.

   2. Despite the clear terms of Section 2024(d), the Eleventh Circuit
engrafted a reasonableness requirement into the statute, holding that
a Reservist has no right to return to his job unless the requested
leave is "reasonable." Pet. App. 9a-11a.  Not only does that
construction of Section 2024(d) flout the language of Section 2024(d),
but, by qualifying the unqualified rights protected by that Section,
the court of appeals has dramatically curtailed the reemployment
rights of Reservists serving tours of duty that clearly fall within
its scope.

   The main principle underlying the VRRA is that no person should
suffer a penalty in his civilian job by reason of his absence from
that job to fulfill his obligations as a member of the Armed Forces.
See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284
(1946);  Tilton v. Missouri P. R.R., 376 U.S. 169, 170-171 (1964);
Accardi v. Pennsylvania R.R., 383 U.S. 225, 228 (1966).  The VRRA
"clearly manifests a purpose and desire on the part of the Congress to
provide as nearly as possible that persons * * * upon returning to
civilian life, resume their old employment without any loss because of
their service to their country." Ibid.  Indeed, this Court has stated
that the judicial branch must give "as liberal a construction for the
benefit of the veteran (to each separate provision of the VRRA) as a
harmonious interplay of the separate provisions permits." Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. at 285.  See also Coffy v.
Republic Steel Corp., 447 U.S. 191, 196 (1980);  Alabama Power Co. v.
Davis, 431 U.S. 581, 584 (1977).  Especially in light of this Court's
repeated admonition that the reemployment rights provisions are "to be
liberally construed for the benefit of those who * * * serve their
country," Fishfold v. Sullivan Drydock & Repair Corp., 328 U.S. at
285, no judicial qualification should be imposed on the reemployment
rights conferred by the statute as written.

   3. When Congress adopted Section 2024(d), this Court had firmly
established the doctrine of liberally construing the VRRA for the
benefit of the veteran.  Thus, Congress was on notice that any
limitations or conditions upon the rights granted to veterans must be
explicit.  See McNary v. Haitian Refugee Center, Inc., No. 89-1332
(Feb. 20, 1991), slip op. 16 ("Congress legislates with knowledge of
our basic rules of statutory construction.").  Yet, in Section
2024(d), no condition (other than that of a "request") was imposed.
/13/ Rather, as the Court pointed out in Monroe v. Standard Oil Co.,
Congress carefully struck the desired balance between the rights of
Reservists and the needs of employers in the express terms of Section
2024(d).  See 452 U.S. at 564 ("(A) 'reasonable accomodation' to
employee-reservists because of missed worktime has already been made
by Congress in Section 2024(d).  There, Congress decided what
allowance employers should make to reservists whose duties force them
to miss time at work:  provide them a leave of absence.").

   Moreover, Congress knew how to impose durational limits on
reemployment protections for members of the Armed Forces, and did so
in other sections of the VRRA.  A Reservist who enters on active duty
or enlists in the Armed Forces proper ordinarily retains the right to
return to his previous job, or a similar position, for at least four
years.  See 38 U.S.C. 2024(a) (enlistees);  38 U.S.C. 2024(b)(1) (tour
of active duty).  /14/ The provision that applies to Reservists who
serve on active duty as part of a limited call-up by the President
under 10 U.S.C. 673b (as occurred at the start of Operation Desert
Shield) protects reemployment rights for the duration of service on
"active duty for not more than 90 days." 38 U.S.C. 2024(g).  /15/ In
contrast, the Act places no express time limits on reemployment rights
for persons drafted into the Armed Forces, see 38 U.S.C. 2021(a), or
engaged in initial active duty for training, see 38 U.S.C. 2024(c)
(although the duration of such training is fixed by statute, see note
6, supra).  In the same vein, the Act says nothing about the duration
of training duty that is entitled to protection under 2024(d).

   "Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposefully
in the disparate inclusion or exclusion." Russello v. United States,
464 U.S. 16, 23 (1983);  General Motors Corp. v. United States, 110 S.
Ct. 2528 (1990);  Gozlon-Peretz v. United States, No. 89-7370 (Feb.
19, 1991), slip. op. 8-9.  Here, Congress has chosen within the same
statute to place time limits on reemployment rights with respect to
some kinds of service, but not others.  It follows that if Congress
had wanted Reservists engaged in "active duty for training" to enjoy
reemployment rights for a limited time only, or to qualify for
reemployment rights only under limited circumstances, "it could have
(said) so expressly." Cf., Monroe v. Standard Oil Co., 452 U.S. at 564
(Court will not impose a "reasonable accommodation" requirement under
the antidiscrimination provision of Section 2021(b)(3) of the VRRA,
since Congress "could have done so expressly," but did not).

   Moreover, the limits Congress has imposed are simple and
unambiguous, providing both Reservist and employer with clear notice
of their respective rights and responsibilities.  Congress has chosen
not to incorporate a multi-factor balancing test, complete with
indeterminate criteria that inevitably generate uncertainty and
apprehension.  Congress's considered choice -- whether wise or not --
was much simpler, more straightforward, and easier to apply.  Courts
therefore do violence to Congress's ordained scheme by redrafting the
statute to include such criteria.  See Monroe v. Standard Oil Co., 452
U.S. at 565 ("If Congress desires to amend Section 2021(b)(3) (to
include a reasonable accommodation requirement), it is free to do so.
But we must deal with the law as it is.").

   4. Reading a "reasonableness" requirement, or a durational limit,
into Section 2024(d) directly frustrates the statutory purpose.  In
enacting the reemployment rights provisions of the VRRA, Congress
sought not only to boost morale and to provide an important benefit to
those who serve their country, but also to create an effective tool
for encouraging service in the Armed Forces.  See Alabama Power Co. v.
Davis, 431 U.S. 581, 583 (1977) (the VRRA "provides the mechanism for
manning the Armed Forces of the United States.");  Carter v. United
States, 407 F.2d 1238, 1243 (D.C. Cir 1968).  By conferring clearcut
and unqualified rights to reemployment without penalty following
training or other duty coming within its scope, Section 2024(d)
removes one of the most important disincentives to voluntary service
in the Reserves -- the fear that such service comes at the price of
loss of livelihood.

   Changes in defense policy within the last generation have
dramatically transformed the role of the Reserve components, but at
the same time have increased the difficulty of maintaining a sizeable
and properly trained Reserve force.  Because of the Nation's heavy
reliance, as part of the Total Force concept, on the Reserve forces as
a key component of the Nation's armed services, significant
curtailment of the protections afforded Reservists under Section
2024(d) would have an especially adverse impact on military
preparedness.

   a. Following abolition of the draft in the early 1970s and the
creation of an all-volunteer force, see The AGR Program, 106 Mil. L.
Rev. at 7, the willingness of citizens to volunteer for service in all
components of the Armed Forces -- including the Reserves -- became
critical to the strength and integrity of the fighting force.  In the
wake of the draft's demise, then Secretary of Defense Melvin Laird
articulated a "Total Force Policy" that was formally adopted by the
DOD in 1973.  That Policy has as its objective "to maintain as small
an active peacetime force as national security policy, military
strategy, and overseas commitments permit, and to integrate the
capabilities and strength of the active and reserve forces in a
cost-effective manner." 1990 DOD Report to Congress, supra, at 13.
Instead of merely serving as an emergency manpower source, the "Ready
Reserve" became an integral part of the Armed Forces of the United
States.  See The AGR Program, 106 Mil. L. Rev. at 5-7.  See also H.R.
Rep. No. 504, 99th Cong., 2d Sess. 2 (1986) ("Under the Total Force
Policy, the Reserve components (are used) * * * as the initial and
primary augmentation of the active forces in the event of
mobilization.  In many instances, the active forces would be unable to
deploy and accomplish their mission without National Guard and Reserve
augmentation.").  Over the last 20 years, the Ready Reserve units have
come to provide about one-half of the Army's combat power and
two-thirds of its combat service support and wartime medical
capability.  Ibid.  /16/

   These changes in policy required a dramatic increase in the size of
the service forces.  But, as the military services became dependent on
citizen volunteers, reserve recruiting and retention declined.  See
The AGR Program, 106 Mil. L. Rev. at 7.  /17/ And as Reservists became
harder to recruit, "the nature of the Reserve mission * * * changed."
The Department of Defense attempted to replace a modest-sized force
capable only of "slow-moving general mobilization" with a large,
well-trained, battle-ready reserve force "immediately available to
augment active duty personnel in important front-line duty." See The
AGR Program, 106 Mil. L. Rev. at 6;  see also DOD, Annual Report of
the Secretary of Defense on Reserve Forces, Fiscal Year 1975, at 1
(1976).

   This transformation necessitated more rigorous and sophisticated
training for members of the National Guard and the Ready Reserve.
Reservists need extensive training to be fully prepared to play their
crucial military role on short notice alongside the regular forces.
See H.R. Rep. No. 504, 99th Cong., 2d Sess. 2 (1986) (to fulfill
mission requirements, Ready Reserve personnel "must have the
opportunity for meaningful and realistic training");  The AGR Program,
106 Mil. L. Rev. at 7 (increased reliance "demanded fully trained and
disciplined Reserves").

   The need for more intensive and elaborate training was also
compounded by the Armed Forces' growing dependence on advanced
technology, in both its weaponry and support capabilities.  Many of
the modern skills necessary to operate complex weaponry, computers,
and support equipment cannot be learned by a Reservist over a weekend
or in fourteen days.  As the training programs have proliferated in
number and complexity, they have also increased in length, requiring a
greater time commitment.  /18/

   As the reserve components grew in importance and complexity, it
also became clear in the late 1970s that a cadre of "full-time
support" personnel was needed to train reserve units and administer
the reserve program.  After unsatisfactory attempts to answer the
full-time training support needs with civilian "military technicians,"
and because statutory impediments restricted the use of full-time
active military personnel to support the Reserves, see The AGR
Program, 106 Mil. L. Rev. at 9-10, Congress decided to establish the
AGR Program in order to supply the necessary full-time training
support.  /19/

   b. The "rule of reason" adopted by the court below, and similar
tests adopted by other courts of appeals, jeopardize the reemployment
rights of all Reservists serving in the AGR Program or undertaking
lengthy periods of training for the benefit of the Reserves.  By
casting doubt on these Reservists' reemployment rights, the courts'
decisions seriously threaten the ability of the Ready Reserve to fill
pivotal positions requiring lengthy tours of "active duty for
training."

   The ad hoc and unpredictable nature of the "reasonableness" tests
devised by these courts is reflected in the fact that no two tests are
alike.  See Kolkhorst v. Tilghman, 897 F.2d at 1285-1286 (noting that
the "judicially created (reasonableness) standard" varies "from one
jurisdiction to the next");  Boyle v. Burke, 925 F.2d 497 (1st Cir.
1991) (same).  In determining whether a particular form of military
leave is "reasonable," the tests vary widely in the factors considered
relevant and the weight attached to them.  See e.g., Eidukonis, 873
F.2d at 695-696 (adopting a broader "reasonableness" inquiry into
length of time requested, timing of the request, employee's good
faith, the employer's particular need, the employer's ability to find
a substitute, the additional costs that would be borne by the
employer, and whether the employer had a clear policy regarding leave
requests);  Gulf States Paper v. Ingram, 811 F.2d at 1469 (rejecting a
"totality test," but holding that "reasonableness" must be judged on
the basis of the length of the leave, the employee's actions, and the
burden placed on the employer);  Lee v. City of Pensacola, 634 F.2d
886, 889 (5th Cir. 1981) (stating that a "rule of reason" applies,
without explaining what factors are to be considered, but examining
the Reservist's other training options, the fact that he did not tell
his employer about them, the timing of the request, and the burden
placed on the employer).  /20/

   Under such vague standards, no Reservist can be sure if, or how
long, his job will be protected, and no employer can know for certain
whether it needs to hold a job open or to make other arrangements to
comply with the requirements of Section 2024(d).  Above all, the
military may be unable to attract capable Reservists into its training
and full-time support programs once Reservists realize that, absent a
judicial decision that is binding in their circuit and that deals with
their precise situation, there is no assurance that their jobs will be
waiting when the period of service is complete.  Reservists fearful of
losing their civilian jobs would be effectively deterred from applying
for many programs that provide sophisticated training, and the AGR
program would be hard pressed to attract the high caliber personnel it
needs.  /21/ See Army Reg. 135-18, Section 1-5 (1985).  /22/

   In contrast, reading Section 2024(d) to mean what it says yields a
concrete, definitive right that an employee can rely upon when
deciding whether to enlist in the Ready Reserve and, thereafter,
whether to enroll in an extended training program.  Both employee and
employer will know that as long as the employee's training orders are
properly authorized, the employee has the right to return to his job.
Thus, this more natural construction of Section 2024(d) supplies what
Congress was seeking in the first instance -- reliable job protection
that facilitates recruitment of high quality personnel and allows
Reservists to be adequately trained to fulfill their critical role in
safeguarding our national defense.

   B. Nothing In The History Or Evolution Of Section 2024(d) Warrants
Departure From Its Terms, Which Unequivocally Protect The Reemployment
Rights Of Reservists In Petitioner's Position

   1. "Going behind the plain language of a statute in search of a
possibly contrary congressional intent is a step to be taken
cautiously even under the best of circumstances." United States v.
Locke, 471 U.S. 84, 95-96 (1985) (internal quotes omitted);  Demarest
v. Manspeaker, 111 S. Ct. 599, 604 (1991).  Here, the statutory text
is clear and unambiguous;  therefore, "judicial inquiry is complete,"
and resort to legislative history is unnecessary.  Burlington N.R.R.
v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987).  Even so, we can
find nothing in the legislative history of the VRRA generally or of
Section 2024(d) in particular that lends any support to a
reasonableness test or that warrants an interpretation at odds with
the text itself.

   As noted above, the provision later recodified at 38 U.S.C. 2024(d)
was enacted in 1960 as an amendment to Section 9(g) of the Military
Training and Service Act, 50 U.S.C. App. 459 et seq.  In place of
Section 9(g)(3), which granted leaves of absence for the purpose of
"performing training duty," see pp. 5 & note 5 supra, the 1960
enactment substituted two sections:  one (later Section 2024(c))
covered initial active duty training and required return to work
within 31 days after release from duty;  the other (later Section
2024(d)) covered "active duty for training or inactive duty training,"
and required return to work immediately after training.  See Act of
July 12, 1960, Pub. L. No. 86-632, 74 Stat. 467;  H.R. Rep. No. 1263,
supra, at 8-9 (reprinting old and new law).

   This enactment had two principal stated goals, neither of which
involved any limitations, durational or otherwise, on leaves of
absence under the provision at issue in this case.  First, in the
provision later codified at 38 U.S.C. 2024(c), the enactment extended
to members of the National Guard the same reemployment protection
enjoyed by other Reservists who were called to perform "an intial
period of active duty for training of 3 to 6 months." S. Rep. No.
1672, 86th Cong., 2d Sess. 1-2 (1960).  Second, the enactment was
designed to "adjust the time period within which leave of absence
rights must be asserted" after the performance of training duty other
than initial training covered by Section 2024(c).  S. Rep. No. 1672,
supra, at 1.  See also H.R. Rep. No. 1263, supra, at 2 (1960).
Accordingly, Congress incorporated into the progenitor of Section
2024(d) the requirement that, to qualify for protection, Reservists
returning from "active duty for training or inactive duty training"
must return to work "at the beginning of the next regularly scheduled
working period." H.R. Rep. No. 1263, supra, at 2-3.  Apart from this
requirement, and that of a "request" to the employer for leave, that
Section placed no conditions or limits on the assertion of
reemployment rights following a tour of duty falling within its scope.

   The 1960 Senate Report on Section 2024(d) states that it provides
protection for trainees who are absent from employment for short
periods, "such as" two-hour drills, weekend drills, two-week annual
encampments, or special training or instruction periods lasting for
30, 60, or 90 days.  S. Rep. No. 1672, supra, at 2.  See also H.R.
Rep. No. 1263, supra, at 6 (amendments to Section 9(g) provide "job
protection and reemployment rights that apply to all military trainees
not previously covered" -- that is, "individuals on active duty
training under orders which contemplate service of less than 3 months
and all other training duty, active or inactive, for lesser periods of
time").  At least one court of appeals has relied in part on this
commentary to construe Section 2024(d) as imposing a requirement that
any military leave requested be reasonable.  See Eidukonus v.
Southeastern Pennsylvania Transp. Auth., 873 F.2d at 693.  However,
these remarks in the legislative history do not support that
conclusion.  See Kolkhorst v. Tilghman, 897 F.2d at 1286.

   At the time Section 2024(d) was enacted, members of the "Ready
Reserve" had only short and intermittent training obligations, such as
those described in the Senate Report.  /23/ The comments in the
congressional reports regarding weekend and two-week training drills
therefore simply reflect the range of training requirements in place
at the time, and do not impose substantive limitations on the coverage
of Section 2024(d).  Indeed, a careful examination of the legislative
remarks reveals that the instances of existing training obligations
supplied in the Reports were designed to illustrate the broad category
protected by the new provision -- which was to include "all military
trainees not previously covered," see H.R. Rep. No. 1263, supra, at 6.
 See, e.g., Cronin v. Police Dep't, 675 F. Supp. at 850 n.3 (the
phrase "such as," used in the Senate Report, "is not a phrase of
strict limitation");  Barber v. Gulf Publishing Co., 103 Lab. Cas
(CCH) Paragraph 11,676, at 24,862 n.5 (S.D. Miss. 1986) (determining,
on similar analysis, that Section 2024(d) does not exclude training
lasting more than 90 days).  Thus, Congress's discussion of the
training periods prevalent in 1960 does not circumscribe the
applicability of Section 2024(d), nor does it prevent the military
from adapting to changing needs by creating longer tours of "active
duty for training." In any case, the House and Senate Reports provide
no support for the existence of a vague and open-ended requirement
that the request for leave be "reasonable."

   To be sure, most Ready Reservists invoke the protections of Section
2024(d) for periods of training shorter than that involved here --
ordinarily, one weekend of inactive duty training per month and 12
days of active duty training per year.  But it does not follow that
Congress intended Reservists on short-term training to be the
exclusive beneficiaries.  To the contrary, that provision squarely
covers less common, or even unanticipated situations, since it
embodies Congress's determination that the Section applies without
regard to the length of the leave or other factors that would take
away the job security of the reservists who come within its terms.
/24/ See Board of Governors v. Dimension Fin. Corp., 474 U.S. 361, 371
(1986) (Congress's choice of general language demonstrates that,
although "legislation may have been prompted by the needs" of specific
members of a class, "Congress intended to (cover) the class.").

   2. Even if there were any question as to the intent of Congress
when Section 2024(d) was enacted, there can be no doubt that Congress
later deliberately extended the benefits of Section 2024(d) to
Reservists serving in the AGR program, and did so as part of its
emphasis on the importance of that program.  In 1980, shortly after
creation of the program, Congress amended 38 U.S.C. 2024(f) to provide
that "full-time training or other full-time duty performed by a member
of the National Guard under section * * * 502 * * * of title 32 is
considered active duty for training" under Section 2024(d), and thus
is entitled to the reemployment rights guaranteed by that Section.
See Veterans' Rehabilitation and Education Amendments of 1980, Pub. L.
No. 96-466, Section 511(b), 94 Stat. 2207.  /25/ This amendment
unambiguously provides that members of the National Guard who, like
petitioners, serve in the AGR program on the authority of 32 U.S.C.
502(f), are entitled to the full reemployment protections of Section
2024(d) for the duration of their service.  Moreover, in 1984,
Congress specified the measure of veterans' rights and benefits
available to full-time National Guard members, including those in AGR
service, /26/ and in doing so reaffirmed that National Guard members
serving in the AGR program should receive full reemployment rights
under 38 U.S.C. 2024(d).

   C. The Courts Should Defer To The Decisions Of Congress And The
Executive Branch As To Which Tours Should Be Considered "Active Duty
For Training" Entitled To Full Reemployment Rights Protection Under
Section 2024(d)

   As explained in Monroe v. Standard Oil, Inc., 452 U.S. at 565, the
courts "do () not sit to draw the most appropriate balance between
benefits to employee-reservists and costs to employers.  That is the
responsibility of Congress." In the present case, Congress has
performed that calculus by authorizing full-time support duty in the
form of the AGR Program, and by expressly providing that members of
the National Guard who undertake such duty shall be considered to be
on "active duty for training" entitled to the protections of Section
2024(d).  In addition, Congress and the Military have devised new
training programs, have decided how long such training programs should
last, and have determined how much training is "reasonable." By
authorizing new bona fide forms of "active duty for training," the
Executive and Legislative Branches have decided that Reservists who
undertake such training deserve to have their jobs protected.  That
should be the end of the matter.

   This Court's cases teach that the Judicial Branch should be
especially chary interfering with the exercise of legislative or
executive authority over military affairs.  See, e.g., Chappell v.
Wallace, 462 U.S. 296, 301 (1983);  Rostker v. Goldberg, 453 U.S. 57,
64-65 (1981).  As the Court stated in Gilligan v. Morgan, 413 U.S. 1
(1973), "(t)he complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force are
essentially professional military judgments, subject always to
civilian control of the Legislative and Executive Branches." Id. at 10
(emphasis omitted).  Thus, the courts should not question the
reasonableness of the length or nature of the military leave for
training, so long as the leave is supported by properly issued bona
fide military orders.  See Cronin v. Police Dep't, 675 F. Supp. at 854
("the type, duration and frequency of any particular course of
military training must also be presumed reasonable").  /27/

   II. EVEN IF A REASONABLENESS TEST APPLIES, PETITIONER'S REQUEST FOR
LEAVE TO SERVE IN THE AGR PROGRAM WAS REASONABLE

   To the extent any "reasonableness" rule may be applied to qualify
the right conferred by Section 2024(d), we submit that the three-year
military leave in the present case was not unreasonable.  /28/ First,
the courts should never deem unreasonable the duration of leave to
serve pursuant to a bona fide military order.  In evaluating
reasonableness, the courts should defer to the professional military
judgment concerning training and other needs of the Armed Forces, and
should presume that the specific orders issued serve the national
interest.  See Gilligan v. Morgan, 413 U.S. at 10.  Since the district
court in this case found that petitioner's military leave request was
not "unreasonable" apart from its duration (see Pet. App. 20a-21a),
this Court should reverse the decision below.  /29/

   Second, this Court should defer to the unambiguous and specific
congressional judgment that a National Guard member's multi-year tour
to serve in the AGR program must be protected under Section 2024(d).
As discussed above, p. 8 & note 10, at the time Congress created the
AGR Program, the civilian technicians performing support functions
were serving three-year tours.  See Lemmon v. Santa Cruz County, 686
F. Supp. at 798.  Knowing of these multi-year tours of duty, Congress
amended the law to extend to members of the National Guard in the AGR
unqualified rights to reemployment under Section 2024(d).  Since
Congress therefore effectively decided that tours lasting three years
fall within the scope of the statute, petitioner's three-year leave
request should not be considered unreasonable.

   Finally, three years is not an unreasonably long period for VRRA
protection.  A person who volunteers for regular military service is
covered by the VRRA (without any qualifications) for four years, with
extensions to five years or longer under certain circumstances.  See
38 U.S.C. 2024(a).  Moreover, members of the National Guard and the
Federal Reserve components serving in the AGR program in a purely
federal capacity under Title 10 U.S.C. are guaranteed reemployment
rights for at least four years under 38 U.S.C. 2024(b).  See note 25,
supra.  Reading a durational limit of less than three years into
Section 2024(d), as did the court of appeals here, would create the
anomaly of providing full job protection for Reservists serving in the
AGR program under Title 10, but according no protection whatever to
members of the National Guard performing the same functions on orders
issued under Title 32.  It is difficult to believe that Congress could
have intended such drastically different treatment for members of
different reserve components playing the same role.  If some
Reservists in the AGR program are covered for at least four years, it
cannot be unreasonable to provide job protection for a member of the
National Guard serving in the AGR program for three years.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   AMY L. WAX

      Assistant to the Solicitor General

   MICHAEL JAY SINGER

   ROBERT M. LOEB

      Attorneys

   APRIL 1991

   /1/ Petitioner is represented by the United States pursuant to 38
U.S.C. 2022, which authorizes the United States to represent
individuals in actions involving reemployment rights.  See also Pet. 7
n.4.

   /2/ The National Guard of the United States is comprised of the
Army National Guard and the Air National Guard, see 10 U.S.C. 101(9),
which are two of the country's seven Reserve force components.  See 10
U.S.C. 261.  The remaining five components are the Naval, Marine,
Coast Guard, Army and Air Force Reserve (which are referred to herein
as the Federal Reserve components).  All reserve members are assigned
to one of three distinct categories created under 10 U.S.C. 267(a):
(1) Ready Reserve (a battle-ready component), (2) Standby Reserve, and
(3) Retired Reserve.  All National Guard members are part of the Ready
Reserve.  See England, The Active Guard/Reserve Program:  A New
Military Personnel Status, 106 Mil. L. Rev. 1, 3-4 (1984) (reviewing
organization and history of Reserve components) (hereinafter The AGR
Program).

   /3/ See also 10 U.S.C. 672(b) (involuntary call-up of 15 days),
672(d) (voluntary call-up of indefinite duration, 673a (call to active
duty for up to 24 consecutive months of Ready Reservist "who has not
fulfilled his statutory reserve obligation"), 673(a) (call to active
duty for 24 months in an emergency or "when otherwise authorized by
law"), 673b (call to active duty for up to 180 days "when the
President determines that it is necessary to augment the active forces
for any operational mission").  President Bush recently called more
than 200,000 reservists into active duty in the Persian Gulf, as part
of Operations Desert Shield and Desert Storm, under the authority
conferred by Section 673b.  See 1990 Department of Defense, Total
Force Policy, Report to Congress, at 18-19 (hereinafter 1990 DOD
Report to Congress).

   /4/ Members of the National Guard who are ordered into active duty
(including active duty for training) under Title 10 -- which governs
service in the federal capacity -- "lose their status as members of
the State militia during their period of active duty." Perpich v.
Department of Defense, 110 S. Ct. at 2426.  Members of the National
Guard who serve on orders issued under Title 32 retain their state
status.  See note 25, infra.

   /5/ As codified at 50 U.S.C. App. 459(g)(3) (1958), the new
provision provided that "any employee"

      shall be granted a leave of absence by his employer for the
      purpose of being inducted into, entering, determining his
      physical fitness to enter, or performing training duty in, the
      Armed Forces of the United States.  Upon his release from
      training duty or upon his rejection, such employee shall, if he
      makes application for reinstatement within thirty days following
      his release, be reinstated in his position without reduction in
      his seniority, status, or pay except as such reduction may be
      made for all employees similarly situated.

   /6/ See also, Section 262(a)-(c), 69 Stat. 600 (governing
enlistments in the Ready Reserve of the United States Armed Forces,
and requiring performance of "an initial period of active duty for
training of not less than three months or more than six months").

   /7/ Section 2024(b)(1) and (2) do not apply, however, to Reservists
ordered to "active duty of not more than 90 days under (10 U.S.C.)
Section 673b." Section 2024(g) provides that such persons

      shall be entitled to all reemployment rights and benefits
      provided under (Section 2024(c) of 38 U.S.C.) for persons
      ordered to an initial period of active duty for training of not
      less than twelve consecutive weeks.

   /8/ All Reservists also receive protection against discharge,
demotion, withdrawal of benefits, or other forms of discrimination
upon return from, or on account of, service for a period of training
or duty.  Under 38 U.S.C. 2021(b)(3), a person cannot be denied
"retention, * * * promotion or other incident or advantage of
employment because of any obligation as a member of a Reserve
component of the Armed Forces." See Monroe v. Standard Oil, Inc., 452
U.S. 549, 557-559 (1981).  Section 2021(b)(3) was amended in 1986 to
prohibit discrimination in hiring of reservists as well.  See Pub. L.
No. 99-576, Section 331, 100 Stat. 3279.

   /9/ The Adjutant General is the commanding officer of the Alabama
National Guard.  See 32 U.S.C. 314(a).

   /10/ The civilian "military technicians" that the AGR personnel
were supposed to replace served three-year tours of duty at the time
the AGR Program was created.  See Lemmon v. Santa Cruz County, 686 F.
Supp. 797, 798 (N.D. Cal. 1988).

   /11/ Petitioner was called to full-time duty in the National Guard
under 32 U.S.C. 502(f), see App., infra, 1a.  In deciding that
petitioner enjoyed job protection under 38 U.S.C. 2024(d), the court
relied on 38 U.S.C. 2024(f), which provides:

      For the purposes of subsections (c) and (d) of this section,
      full-time training or other full-time duty performed by a member
      of the National Guard under section 316, 502, 503, 504, or 505
      of title 32 is considered active duty for training.

As the court explained, 38 U.S.C. 2024(f) makes clear that full-time
duty performed by a National Guard member under Section 502 is
considered "active duty for training" under Section 2024(d).  Pet.
App. 18a n.8.

   /12/ In Gulf States, the Eleventh Circuit identified three factors
to be taken into account in evaluating whether a military leave
request is reasonable under 38 U.S.C. 2024(d):  "the length of the
leave, (the employee's) actions, and the burden upon (the employer) in
filling (the) position during (the) absence." 811 F.2d at 1469.  The
Gulf States court stated that the employee enjoys a presumption of
reasonableness, that "burden on the employer alone is not enough" to
defeat the presumption, and that "the weightiest factor in overcoming
that presumption is the conduct of the employee." Ibid.  Only "conduct
akin to bad faith on the employee's part" will lead to a finding of
unreasonableness.  Ibid.  The court determined, however, that "bad
faith conduct might also be shown through requests for leaves of
exceptional duration." 811 F.2d at 1470 n.4.  The court then held that
the one-year leave request at issue in that case was "not per se
unreasonable," but added that "a greater length of time might reach
that level." 811 F.2d at 1469.

   /13/ The requirement that an employee-reservist "request" leave
from his employer has been construed by several courts of appeals to
impose a condition of timely and adequate notice to the employer of
the employee's impending need for leave.  See, e.g., Sawyer v. Swift &
Co., 836 F.2d 1257, 1260-1261 (10th Cir. 1988) (Section 2024(d) does
not forbid an employer to require "adequate" notice of impending
leave);  Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1247-1248 (6th
Cir. 1988) (suggesting same);  Ellermets v. Department of the Army,
916 F.2d 702 (Fed. Cir. 1990) (under Section 2024(d), Reservist must
inform his superiors before he departs for leave).  The question
whether such a condition is imposed by the statute is not presented in
this case, since respondent here has not claimed, and the courts below
did not suggest, that the notice given by petitioner was inadequate.
But we note that the statutory requirement of a "request" does appear
to embrace some notion of timely notice, since it is difficult to
believe that Congress mandated a "request" as an empty gesture.  Even
if an employer may not refuse on the ground that the request is
"unreasonable," the requirement that the employee "request" leave can
serve important purposes.  It allows an employer to take some advance
action to compensate for the employee's absence and, in some
instances, to see whether the employee himself can make alternative
arrangements.

   /14/ Under some circumstances, Reservists on "active duty" can
retain their reemployment rights without any durational limit for a
period of extension of active duty by the military beyond four years.
See 38 U.S.C. 2024(a);  38 U.S.C. 2024(b)(1).  See also Section
2024(b)(2).

   /15/ Although Section 2024(g) refers to 90-day tours of duty,
Section 673b of Title 10 has, since 1976, allowed the President to
extend tours under that Section for up to 180 days.  See 10 U.S.C.
673b (permitting the President to call 200,000 Reservists to duty for
90 days, subject to a 90 day extension).  The disparity raises the
question whether Section 2024(d) guarantees reemployment to Reservists
originally deployed in the Persian Gulf under Section 673b for 180
days.  This potential problem was solved by a retroactive amendment to
Section 2024(g) that strikes out the reference to 90 days, thereby
removing any durational limit on VRRA coverage for involuntary duty
under Section 673b.  See Pub. L. No. 102-12, Section 8, 105 Stat. 34.

   Also, on January 18, 1991, President Bush issued Exec. Order No.
12,743, which declared that Reservists originally called up on the
authority of Section 673b would henceforth be considered mobilized
under 10 U.S.C. 673(a) allowing the President to call 1,000,000
members of the Ready Reserve to active duty (other than for training)
for 24 months "(i)n time of National emergency declared by the
President * * * or when otherwise authorized by law".  Reservists
called to active duty under Section 673 (as opposed to 673b) enjoy
reemployment rights under 38 U.S.C. 2024(b)(1) and (2), which impose
no durational limit as long as the President's call-up order is in
effect and the individual Reservist has not been issued orders
relieving him from active duty.

   /16/ See alo H.R. Rep. No. 1069, 94th Cong., 2d Sess. 3-5 (1976)
(reserve components have become co-equal partners with the active
forces in the national defense);  H.R. Rep. No. 107, 98th Cong., 1st
Sess. 202 (1983) (commenting on the role of Reserves in the Total
Force);  The AGR Program, 106 Mil. L. Rev. at 6-7;  1990 DOD Report to
Congress, at 21 (in 1950, 51% of Army military manpower, and 27% of
Air Force military manpower were found in the reserve components).

   /17/ Every annual report by the Secretary of Defense throughout the
1970s noted a major problem in maintaining a sufficient number of
Reservists, and attributed the difficulty principally to the
elimination of the draft, which had provided a major incentive for
joining the Reserves.  See 106 Mil. L. Rev. at 8 & nn. 36-38.

   /18/ During fiscal years 1989 and 1990, more than 21,000 members of
the Federal Reserve and National Guard components, in addition to
those enrolled in the AGR Program, served on tours of "active duty for
training" of 180 days or more.  See Manpower Requirements Repor, DOD
1991 Fiscal Year, at III-55, IV-55, IV-49, and VI-43, 44;  Manpower
Requirements Report, DOD 1992 Fiscal Year, at II-53, IV-49, 50, V-29,
VI-40.

   The following is a sample of training tours available during Fiscal
Year 1991 that are open to members of the National Guard and Federal
Reserve components and that require substantial commitments of time:
C-141 Pilot (104 weeks);  Officer Sea Air Mariners (104 weeks);
Cryptologic Technician Interpreter (79 weeks);  C-5 Basic Flight
Engineer (53 weeks);  Electronic Warfare/Intercept Aviation System
Repairer (50 weeks);  Hawk (surface to air missile) Field Maintenance
Equipment/Pulse Acquisition Radar Repairer (54 weeks);  Hawk Firing
Section Repairer (36 weeks);  Hawk Fire Control Repairer (54 weeks);
Medical Equipment Repairer (46 weeks);  Fire Controlman (43 weeks);
Voice Interceptor (43-90 weeks).  See also Gulf States, 811 F.2d at
1466 (leave requested under Section 2024(d) to enroll in a one-year
training program sponsored by the Army Reserve in response to an acute
shortage of nurses);  Eidukonis, 873 F.2d at 690-692 (leave requested
under Section 2024(d) to participate in weapons firing range computer
project);  Kolkhorst v. Tilghman, 897 F.2d at 1285n.* (citing cases
involving training leaves of longer duration).

   Reservists ordinarily train in these protracted programs under
orders issued on the authority of 10 U.S.C. 672(d), which permits any
Reservist to be called to active duty indefinitely with his or her
consent.  The term "active duty" in Section 672(d) includes "active
duty for training" as that term is used in Section 2024(d).  See
Report of the Committee on the Judiciary, S. Rep. No. 2484, 84th
Cong., 2d Sess. 55 (1956).

   /19/ The Department of Defense Authorization Act of 1980, Pub. L.
No. 96-107, Tit. IV, Section 401(b), 93 Stat. 807 granted authority to
employ a specified number of Reservists "to be serving on full-time
active duty for the purpose of organizing, administering, recruiting,
instructing, or training the reserve components." See also H.R. Rep.
No. 166, 96th Cong., 1st Sess. 121 (1979) ("For the first time * * *
there is a separate (sic) authorization for reserve component members
serving on full-time active duty for the purposes of organizing,
administering, recruiting, instructing, or training the reserve
forces.").

   Every year since 1980, Congress has continued to reauthorize
full-time AGR personnel from components of the Ready Reserves,
including the Army and Air National Guard of the United States, and
the Army and Air Force Reserve.  See e.g., Department of Defense
Authorization Act of 1984, Pub. L. No. 98-94, Section 502, 97 Stat.
631;  National Defense Authorization Act of 1991, Pub. L. No. 510,
Section 412(a), 104 Stat. 1547.  As of September 30, 1990, there were
almost 33,000 members of the Army and Air National Guard serving tours
under 32 U.S.C. 502(f) in the AGR program.  See Biennial Budget
Estimate, Fiscal Years 1992-1993, National Guard Personnel Army at 95,
National Guard Personnel Air Force at 518.  See also Reserve Forces
Policy Board, DOD 1989 Annual Report;  1A DOD, Sixth Quadrennial
Review of Military Comp. 3-4 (1988).

   /20/ See also Anthony v. Basic American Foods, Inc., 600 F. Supp.
352, 355 (N.D. Cal. 1984) (in evaluating whether a leave request is
reasonable the court should consider "1) the circumstances giving rise
to the request and 2) the requirement of the employer");  Lemmon v.
Santa Cruz County, 686 F. Supp. at 802 (modifying the Lee test, to
examine five additional factors).

   /21/ See the Affidavit of Colonel Raymond Albertella, Chief of the
Army Manpower Division of the National Guard Bureau, submitted to the
district court, in which he attested that "denial of reemployment
rights for AGR soldiers would have a significant, adverse impact on
the ability of personnel managers to attract quality soldiers, in
sufficient numbers required." R1-37-2.

   /22/ Congress has recently stressed the connection between military
preparedness and reemployment rights.  In a 1986 Joint Resolution,
Congress found that "the National Guard and Reserve forces of the
United States are an integral part of the total force policy of the
United States for national defense." It further found that "attracting
and retaining sufficient numbers of qualified persons to serve in the
Guard and Reserve is a difficult challenge" and, consequently, "the
support of employers and supervisors in granting employees a leave of
absence from their jobs to participate in military training without
detriment to earned vacation time, promotions, and job benefits is
essential to the maintenance of a strong Guard and Reserve force." Act
of May 2, 1986, Pub. L. No. 99-290, Section 1(a), 100 Stat. 413.
Congress called upon "employers and supervisors of employees who are
members of the National Guard or Reserve to abide by the provisions of
chapter 43 of title 38, United States Code." Pub. L. No. 99-290,
Section 1(c), 100 Stat. 413.  See also, H.R. Rep. No. 504, 99th Cong.,
2d Sess. 2 (1986).

   /23/ The 1960 Senate Report's examples of the range of training
duty obligations that existed at that time may have been the source of
the Court's dictum in Monroe that Section 2024(d) "was enacted in 1960
to deal with problems faced by employees who had military training
obligations lasting less than three months." 452 U.S. at 555.
Alternatively, this remark may have been based on the terms of a
different provision, 38 U.S.C. 2024(c), that protects reservists
during their initial active duty for training, which lasts a minimum
of 12 weeks.  At any rate, Monroe's observation is of limited
significance to the interpretation of Section 2024(d), as the
statement was made in the course of the Court's ruling on the meaning
of an entirely different section of the statute, Section 2021(b)(3).
The Court did not discuss, and gave no consideration to, the various
types of training falling within the scope of Section 2024(d) that
might require significantly longer time commitments.

   /24/ The long-standing position of the Secretary of Labor, who
administers the VRRA (see 38 U.S.C. 2002A(b)(1), 2025), has been that
Section 2024(d) requires an employer to grant leave and to reemploy
the Reservist in his previous job when he is released from duty,
without any time and reasonableness limitations.  See U.S. Dep't of
Labor, Veterans' Reemployment Rights Handbook 111 (1970).  Congress
relied upon the Secretary's established interpretation of Section
2024(d) in describing veterans' reemployment rights.  See e.g., S.
Rep. No. 1477, 90th Cong., 2d Sess. (1968) (containing charts
indicating that there is no maximum period of service applicable to
"reemployment rights and job protection" for Reservists engaged in
"active duty for training or inactive duty training (drills)");  H.R.
Rep. No. 1303, 90th Cong., 2d Sess. 6 (1968) (same).

   When in 1981, the Secretary temporarily adopted a different view
following the Fifth Circuit's decision in Lee v. City of Pensacola,
634 F.2d 886 (1981), Congress reacted strongly and adopted a joint
statement disapproving the Secretary's interpretation.  Explanatory
Statement of Compromise Agreement, 128 Cong. Rec. 25,513 (1982)
(stating that durational limits on protections under Section 2024(d)
are not "well-founded either as legislative interpretation or
application of the pertinent case law.") The clarification by Congress
resulted in the Secretary's reaffirmation of the original
interpretation of Section 2024(d):

      (Section 2024(d)) imposes no limit on the number, frequency, or
      duration of the training duty periods for which the employee has
      reemployment rights protection.  The need for such training is
      determined by the Armed Forces, and they also determine its
      frequency and duration.  As long as the reservist or Guard
      member continues to receive the necessary orders, he continues
      to have statutory protection.

See Veterans' Reemployment Rights Handbook 18-2 (1988).  See also
Monroe v. Standard Oil Co., 452 U.S. at 563 n.14 (citing the Handbook
as authority on the construction of the VRRA);  Leib v. Georgia
Pacific, 925 F.2d 240, 245 (8th Cir. 1991), (citing cases holding that
the Veterans' Reemployment Rights Handbook provides "informed
guidance" regarding the VRRA).

   /25/ Because AGR personnel do not receive training, it was
necessary to amend Section 2024(f) to deem AGR service "active duty
for training." As explained in the House Report.

      Members of reserve components who are ordered to active duty for
      training are entitled to be reemployed by their private
      employers following their releases from that duty.  Full-time
      training or duty by members of the National Guard under Section
      503-505 of title 32, U.S. Code, is treated like active duty for
      training for this purpose.  It is now possible to perform
      full-time training or duty under title 32, U.S. Code, section
      502 as well as under sections 503-505.  In order to reflect
      this, section 502 should be added to the enumeration in section
      2024(f) of title 38, U.S. Code.  This section would provide the
      same reemployment rights following periods of full-time training
      or duty under Title 32, U.S. Code, section 502, as curent law
      provides following duty under Section 503-505 of title 32, U.S.
      Code.

H.R. Rep. No. 498, 96th Cong., 1st Sess. 49 (1979) (emphasis added).

   The 1980 amendment to Section 2024(f) extended the benefits of
Section 2024(d) only to members of the National Guard serving in the
AGR under 32 U.S.C. 502(f), because the reemployment rights of other
Reservists in the AGR are protected under other provisions of Section
2024.  Participants in the AGR Program may be ordered to duty under
provisions of Title 32 or Title 10.  See, e.g., DOD Appropriation Act
of 1980, Pub. L. No. 96-154.  Tit. I, 93 Stat. 1141 (authorizing
personnel to "serv(e) on active duty under section 672(d) of title 10
or section 502(f) of title 32, United States Code.").  Reservists
(including some National Guard members) enrolled in the AGR Program
under Title 10 are considered to be on "active duty" under either 10
U.S.C. 265 or 10 U.S.C. 672(d), which entitles them to at least four
years of reemployment protection under 38 U.S.C. 2024(b) -- more than
long enough to complete a three-year AGR tour.

   Although petitioner was ordered to active duty under 10 U.S.C.
672(d) for a brief period at the beginning of his tour (during which
he was required to leave the country), his orders to serve "full-time
duty (State) in Active Guard Reserve status" were authorized under 32
U.S.C. 502(f), see Pet. App. 27a-28a, which governs service in the
state National Guard.  Because he was not called to duty under Title
10, he remained under the command and control of the state Adjutant
General, whom he was assigned to assist.  See The Active Guard Reserve
Program, Army Reg. 135-18, Section 3-1 (1985) (National Guard members
in the AGR under 32 U.S.C. 502(f)(2) "serve in a state status.").

   /26/ Because National Guard members in the AGR Program under 32
U.S.C. 502(f) are serving in their state status, see Army Reg. 135-18,
Section 3-1(c) (1985) and note 25, supra, Guard members qualify only
for veterans' benefits to the extent that Congress explicitly so
provides.

   In 1984, Congress once again specified that members of the National
Guard on full-time duty, expressly including those serving under 32
U.S.C. 502 (see 32 U.S.C. 101(19) (1984)), are considered to be on
"active duty for training" for purposes of reemployment rights.  In a
provision codified at 10 U.S.C. 3686 (1984), Congress provided that

      for the purposes of law providing benefits for members of the
      Army National Guard and their dependents and beneficiaries * * *
      full-time National Guard duty performed by a member of the Army
      National Guard of the United States shall be deemed to be active
      duty in the Federal service as a Reserve of the Army, except
      that for purposes of Title 38, such duty shall be considered to
      be active duty for training.

(emphasis added).

   /27/ This is not to say that an employee has carte blanche to take
unlimited and repeated leaves for training, since only leaves that the
military deems necessary will be protected.  Although some of the
training sessions can run successively and others, especially those
for highly technical positions, see note 18, supra, may be extended
for good reason by military authorities, such extensions would end
when the Reservist had acquired the necessary skills or when the goals
of the training had been met.

   /28/ The broad question stated in our petition for certiorari and
in this brief is whether an employee's right to a leave of absence
under Section 2024(d) "is conditioned on the 'reasonableness' of the
employee's request for leave," and the discussion in this part of our
brief addresses the narrower question whether, if such a condition may
ever be imposed, the court below properly concluded that the request
in this case was unreasonable.  We believe, however, that this
narrower question is fairly embraced within the more general issue of
the existence and scope of any requirement of reasonableness.

   /29/ In evaluating the effects of granting petitioner a three-year
leave, the district court cited the deposition testimony of
respondent's vice-president of human resources, explaining that an
interim manager filling petitioner's position (manager of the
hospital's security department) would not be comfortable enough to
work effectively knowing that petitioner could return to the job after
three years.  Pet. App. 21a-22a n.9.  However, the court's assessment
of adverse impact on the employer should not be permitted to outweigh
the military's determination as to the appropriate length of service
in a Reserve position.

   APPENDIX