our next case this morning is barbara says the united states may perceive it please the court would like to start by going directly to some key and fundamental flaws in the trial court opinion that require reversal the first is that is contrary to the mandate of this court which specifically sent the case back to answer two questions which courses are required and which courses were taken instead the trial court decided that the courses are required only if the got if the military decides to provide payment to the situation that's exactly what this court held in two thousand and three the statute doesn't say second the entire pinion rests on a fiction that the government created  regulatory scheme to implement procedures for paying compensation that it's still insists it was never do it in the in the appeal in two thousand to two thousand and three the government's position was quite clear if they did not implement the statute and could be consistent in their view that the statute didn't provide for payment for correspondence courses that th secretary is to prescribe regulations and the regulations say that you have to have documentary evidence and written authorization before anyone is and pay for these training courses how do we get around that by going directly to your earlier opinion that said what that statute says is that payment is for courses that are prescribed it is not payment limited to when payment is prescribed and i think it was that opinion just just analyzing the two zero six eight two in and did not address the question of whether or not the secretary can set me human standards now i don't see the government arguing that point the government argue that prescribe in means that they also have to prescribe the actual payment never argue that the issue of minimum standards under to us sixty one but notwithstanding it can't get to the result that this court reach and you can't get within the mandate of the court the court didn't send it back to say answer the two questions that we've specified and answer any other statutory questions of the government may raise it was two questions which courses were required and which courses were taken the whole the labrat construct of the of the trial  court and let me to talk about the regulations the trial court ultimately relied on and those are regulations that the government did rely on in the earlier appeal and in many earlier proceedings of a case that says that the that structured creates authoritative enough to override those explicit regulations but in very broad language we said cases remanded for proceedings on the merits of the time the merits of the claim would certainly include  relief could be granted and they had alleged at least enough to get past that minimal hurdle and that's all there is dealey said they didn't allege prior written all of the recession and discord held that that complain want to finish the point without saying that i think it's quite clear from the opinion that i was on a panel i understand we had all the issue of whether you need written authorization let me get to the merits we get the government said before that there's no provision for paying corresponds course now under these regulations they're saying well there are three categories you need to be in need prior written authorization to be in a duty status now by the way the same regulations require the commanders to issue prior written orders if these courses are going to be taken in a non duty status so the obligation is on the commanders if there was a failure of paperwork it was a failure by the commanders not a failure by that members who were taking the courses second they say there are three possible duties statuses one active duty doesn't apply to full time national guard duty doesn't apply three in active duty training and under the statutory definition of an active duty training correspondence courses are excluded and so therefore the government takes the position and the trial court take there is no available payment but under the under the very regulations of the government's theory they couldn't be providing prior written authorization of that of the sort that they meet i mean my view there was prior written o if you get a order saying you have a promotion conditional on completing the following courses those courses are required and it's quite clear that they had that this  boarding to the government's theory none of them would cover correspondence courses so this would be an extremely peculiar way for congress to write a statute to achieve the result that the trial court reached and that the government does advocate namely no payment for classroom and the statute itself contemplates something that could exclude categories of training well but that wouldn't do it in certain categories those exclusions would necessarily relate to correspondence courses where'd you you don't need to have sixty seven people  sixty seventy people in a classroom i mean the one of the great virtues of the correspondence courses is that as it enables the military to provide training to more people more quickly and less expensive than requiring them all to be in residence for which they would be paid to provide the schools the structures the the buildings the lodging and provide payment of for the people taking the courses in resident correspondence courses provide a much less expensive alternative and clearly one that the congress embrace in section two zero six but it really did the secretary and the regulations that he put together on provide some way of allowing you to take correspondence course and then of course monitoring this you the amount of time you were taking them so they could somehow award proper compensation defined by the statute these were not the regulations secretary the army sector here voiced these regulations chief of the national guard bureau and did so in terms of the are these the regulations that the statute may have been  members and that cannot be reconciled with the statute says that you did not set up a mechanism that as this court said mandated payment for required compensation courses and allow none the less allow the military to set up a regulatory system that sort of takes correspondence courses and puts them in and gives them no way out because the government has three duties that is and you don't get competent and two don't apply and you don't get compensation for that and the government has been quite clear that it does not pay for this so the notion that there is a regulatory system in place making the decisions which i think richard in respect are the dark discretionary decisions contrary to this court's decision saying that the statute is mandatory not discretionary mr g dimity go you've pointed out these regulations came from the national guard bureau my thought on the record you can see is that that was the secretary had delegated that authority to the national about those regulations they also provide those regulations are also the place that would allow for award of retirement points for taking the correspondence courses and the members of the guard required courses did get rich quick retirement points when you sit down check two seventy five and one in the dock and all right to see if that's what made the seventy five one  the members of the guard did get the retirement points so whatever it was which under the same regulations require the same prior written authorization so you know whatever authorization seems to be required under these regulations in practice the members got that with respect to retirement points they simply didn't get it with respect to the compensation that the actual training regulations that the secretary issued now the trial court cannot rely on all the regulations we provided what we want to do was sort of set up the fabric of the regulations running from the secretary defense through the secretary of the arm and secretary they are forced argue that there are additional facts point that i think their hiring process pretty strong on that point that the facts are all known at the time and that they they're nothing that changes the analysis you can't i mean you don't really mean to  tell us that we should revisit that critical question to you but we i think i think when we were here the first time they were based on mr clarke to see was the sole plaintiff's well pleaded complaint in the complaint said you contended that he was never not performing as a member of a reserve component we always believe and we still maintain that membership you're just like purged as you were several hats so while you might be a member of a reserve component you could be wearing your title thirty bound by that decision and so if you crack well not necessarily want to because there has been a change in the evidence and one of the exceptions to the law of the case of the mandate rule is when there is a change in the evidence in this case before the court was the well pleaded complaint i tell me  student north carolina he also was a member of a reserve component and that was twenty four seven i think we called that in our in our briefing and again that's not anything that just because he says it that's not anything different than like and we also went into civilian listening documents of sergeant to bernie and mr clark all those evidence shows that your membership is that you're a member reserve component that said what we focused on at the trial court level upon remand was the merits of the case let's look at exactly you were led to the took these courses as not as a member of a reserve component let's examine that and we've got your deposition and through the questioning that we provided they and their answers they said they were members but were garbus of that back even assuming that there was a distinction and that you can be a your there is at this think should be reserved and point to membership and guard membership the regulations you made clear that there was many type of criteria that must be satisfied to be authorized well what we should have probably would have been a clearer argument but we did talk about the idea that the secretary does have authority through the statute prescribed regulations to set forth the spray tyria we talked about that at the lower  about equivalent training and just exactly what it was a quick training but in this case we primarily just relied on underutilized described by the secretary you're the to the court is absolutely correct there is another provision to zero six that we should have probably cited to make clear that once again the secretary can set minimum standards actually i would argue that really to zero six gives the secretary tremendous discretion up to appoint the secretary friends and just as your honor maintained there are certain things that are non negotiable and that is that you know for certain parts of equivalent training you know you can only do four hours extra of equivalent training during a paint year you have to do at least forty eight hours of we did drills of the before for as the secretary said minimum standards oh yes has in fact with one of those out an army regular national guard regulation three fifty dash one you pride primarily stated there has to be under orders he also defined what equipment training was an air national guard instruction thirty six to a one which is the air the department of defense doesn't get it's it's open only because of quibbling to training is a defined term by the department of defense and secretary the army is in the air force and the national guard bureau and it is that training which is essentially a made up training i think it's the find in three fifty dash one and you can see it in the appendix said i want to see a j one five zero six zero and it's paragraph seven word says when an individual misses the regularly scheduled period following courses to receive your promotion that that is authorizing written authorization under this statute to receive pay for for those courses well  those courses what that primarily is any document that it would be i think started to mcnamara might have testified to it in his thirty six deposition was kind of a counseling or mentoring statement saying if you want to be promoted and as we demonstrated promotion in the guard as it is made sergeant it would be able to drive a truck because it up the supervisor and that's something that they didn't want to do so if there is there's never been a direct order that we're aware of where somebody says you must do you must do a b and c and if it did it would still have to com regulations for training because we don't want to put that individual in a status and one of the of the the difficulties of plaintiff's argument is if in fact you are in a military status during the weekend when you're not uniform or not and the subject of orders that has implications far beyond this case it implicates brugge providing the f t c yet what about v a claims i mean what if you know are you entitle to compensation for injuries incurred while completing that type of non order training and it's not just correspondence courses you know you have to maintain appropriate level of physical fitness so if you're running or working out during the week to maintain your level of fit and physical fitness under plaintiff's theory that arguably would be compensable as well because you are actually told  commanders you need to stay in shape you need to meet the height weight limits and that's a bet someone in this case the orders are key because there is limited resources the command has to do all those resources out to ensure that their units training mission is missed and it can't be the individual who all of a sudden decides that i'm going to be in the winter status right now and i'm going to start doing some training that's comp first a point as to would the government's arguing to a six b in the first appeal was argued pages thirty two and thirty three there were three first time around as to item two sixty one that or not is really gets to the for the really important point in the case and that is that the government has consistently taken the position that it has not implemented to a six  and to talk about the what was the term is just used tremendous discretion there is no indication one i think this court's earlier opinion eliminates that the ability to argue that there is tremendous discretion under to a six squids that it's meant to that there's tremendous discretion it has to be exercised by the secretary not something that's that's cobbled together as a litigation strategy by counsel  requirement of paying for correspondence courses is not exist it doesn't appear in the regulatory world and it's not and the arguments that are presented are not consistent with the statute that is really the  core point that the indicates why this trial court decision is incorrect with respect to written requirements of courses of i'd like to point to three pages there are four pages in the in the join appendix that that set out in the exactly the kinds of regulations and the drought we're relying on lists and just descriptions saying these courses are required and that is a joint appendix bates seventy seventy one which is from the n g i thirty six twenty five zero two joint appendix eighty two hundred and then the jump site within the same document of eighty two thirty three  which is from a or three fifty one dash one and joined appendix eleven seven thirty seven which is a or six hundred dash one hundred that say these courses are required they are courses sometimes correspondence sometimes in residence and how congress could have thought that it would have been that anything more was necessary to show that these courses were  is a term that does have some definition elsewhere but again if equivalent training is defined in a regulation in a way that is inconsistent with the statute the statute controls