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

   No. 90-889

   In The Supreme Court Of The United States

   October Term, 1990

   The Solicitor General, on behalf of William "Sky" King, petitions
for a writ of certiorari to the United States Court of Appeals for the
Eleventh Circuit.

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

                       PARTIES TO THE PROCEEDING

   The parties in the court of appeals were petitioner William "Sky"
King, who is represented by the United States pursuant to 38 U.S.C.
2022, and St. Vincent's Hospital.

            TABLE OF CONTENTS
   Question Presented
   Parties To The Proceeding
   Opinions below
   Jurisdiction
   Statutory provision involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-12a) is
reported at 901 F.2d 1068.  The opinion of the district court (App.,
infra, 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.  App., infra,
24a.  A suggestion for rehearing en banc was denied on August 29,
1990.  App., infra, 25a-26a.  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 jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISION INVOLVED

   38 U.S.C. 2024(d) of the Veterans' Reemployment Rights Act
provides, in pertinent part:

         Any employee not covered by (section 2024 (c)) who holds a
      position described in clause (A) or (B) of section 2021(a) shall
      upon request be granted a leave of absence by such person's
      employer for the period required to perform active duty for
      training or inactive duty training in the Armed Forces of the
      United States.  Upon such employee's release from a period of
      such active duty for training or inactive duty training * * *
      such employee shall be permitted to return to such employee's
      position with such seniority, status, pay, and vacation as such
      employee would have had if such employee had not been absent for
      such purposes.

                          QUESTION PRESENTED

   Whether an employee's right under 38 U.S.C. 2024(d) to a 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. In June 1987, William "Sky" King, a 35-year veteran of the
Alabama National Guard, applied for the position of Command Sergeant
Major, which is the highest position for an enlisted member of the
state National Guard.  The Command Sergeant Major, who assists and
advises the Adjutant General /1/ on personnel matters, serves in the
Active Guard/Reserve (AGR) Program, App., infra, at 3a, 27a, which
Congress created in 1980.  See Department of Defense Authorization
Act, 1980 (DOD Act), Pub. L. No. 96-107, Tit. IV, Section 401(b), 93
Stat. 807.  The AGR program authorizes members of the Military
Reserves and the National Guard of the United States to serve
full-time tours of duty for the purposes of "organizing,
administering, recruiting, instructing, or training the reserve
components." Ibid.  Army regulations require AGR personnel to serve
three-year tours of duty.  Army Reg. 136-18, ch. 2, Section II, at 2-9
(1985).

   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.  App., infra, at 3a-4a.  King then 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.  On August 7,
the Guard told King that his duties would begin on August 17, and King
began his tour of duty on that day.  Ibid.

   On September 8, 1987, after considering King's leave request, his
employer notified him by letter that his request was denied.  The
letter stated that, in the employer's view, King did not qualify for
leave under the Vietnam Era Veterans' Readjustment Assistance Act of
1974, 38 U.S.C. 2021 et seq., Chapter 43 of which is known as the
Veterans' Reemployment Rights Act (VRRA or the Act), and that his
request for such a lengthy period of leave was unreasonable.  App.,
infra, at 5a.

   2. The hospital filed a declaratory judgment action in the United
States District Court for the District of Alabama to determine whether
King was entitled under the VRRA to a leave of absence for the
duration of his three-year tour of duty.  The district court noted
that King's orders fell within the scope of Section 2024(d).  /2/
App., infra, 18a & n.8.  The court concluded that King's reemployment
rights were governed by the latter section, which states, in pertinent
part, that the employee

      shall upon request be granted a leave of absence by (his)
      employer for the period required to perform active duty for
      training * * * in the Armed Forces of the United States.

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), /3/ the court determined that, apart from the length of the
leave, King's conduct in requesting leave was not blameworthy.  App.,
infra, 18a-21a.  The court held, however, that a three-year leave
request was per se unreasonable, and that King was therefore not
entitled to reemployment rights under Section 2024(d).  Id. at
21a-22a.

   3. 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, the court of
appeals, although acknowledging that "the statute does not address the
'reasonableness' of a reservist's leave request," engrafted a
"reasonableness" requirement onto Section 2024(d).  App., infra, 7a.
In the present case, the court of appeals reiterated the determination
in Gulf States 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," App., infra, 8a, might amount to bad faith
conduct justifying denial of leave.  Ibid.  The court described as
"self-contradictory" the legislative history of Section 2024(d), and
noted the Supreme Court's 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." App., infra, 11a.  Observing that
"(n)o case has 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)," ibid., the court invoked Church of the Holy Trinity
v. United States, 143 U.S. 457 (1892), for the proposition that a
"literal construction" of the statute must be rejected if required to
"prevent an absurd, unjust, or unintended result." App., infra,
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 King's three-year leave request "was unreasonable on the facts of
this case," but dissented from the adoption of a per se rule.  In
Judge Roney's view, the panel majority approach "might work an
injustice in some future case." App., infra, 12a.

                   REASONS FOR GRANTING THE PETITION

   This case presents a question of statutory interpretation on which
the courts of appeals are divided.  In view of Congress's increasing
reliance on the reserve forces as an integral part of the Nation's
military preparedness, the question is one of great importance.

   Congress enacted the Veterans' Reemployment Rights Act (VRRA) to
protect the employment status of all individuals serving in the Armed
Forces.  Section 2024(d) was designed to enable citizens to serve in
the National Guard and the Federal reserve units free from economic
insecurity.  Because service in the Armed Forces is voluntary, the
readiness and integrity of the fighting forces depend on the
willingness of citizens to volunteer for such service.  The right to
reemployment without penalty is an important benefit conferred by
Congress on reserve volunteers and thus is an essential tool for
fulfilling the manpower needs of the reserves.  See generally 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.").  /4/

   By engrafting onto the statute a "reasonableness" requirement, the
court of appeals seriously misconstrued the language of the statute
and undermined its purpose.  In so doing, the court of appeals not
only substantially curtailed the protections afforded by the VRRA, but
created 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.  /5/ In addition, the strict durational limit imposed by the
court of appeals in this case creates a powerful disincentive to
service in training and other positions, such as the AGR, that require
a significant commitment of time.  As a result, the rigid per se rule
established by the court will impair the ability of the reserves to
fill these pivotal positions.  /6/ In light of the conflict in the
circuits over the nature of the protection afforded by Section
2024(d), the clear interpretive error in the Eleventh Circuit's
ruling, and the potential impact of this decision, review by this
Court is warranted.

   1.a. The modern National Guard traces its history to 1933, when
Congress established a dual-enlistment system (see Act of June 15,
1933, ch. 87, Section 582, 48 Stat. 155), under which every member of
the Army National Guard and the Air National Guard is "a Federal
reservist as well as a State militiaman." H.R. Rep. No. 1066, 82d
Cong., 1st Sess. 9 (1951).  See Perpich v. Department of Defense, 110
S. Ct. 2418, 2425 (1990).  National Guard members, in their federal
capacity, are part of the Reserve Corps (known as the Ready Reserve)
of the Army.  /7/ The Army National Guard, in combination with the
Army Reserve, provide more than half of the combat-ready units of the
"Total Army." See, e.g., 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).  Guard members are available
to be called to active duty in excess of those in the regular Army
during a war or national emergency.  10 U.S.C. 672(a), 673(a).  In
addition, the President, with notice to Congress, may call up members
of the National Guard for "active duty or active duty for training" in
the absence of a national emergency.  See Armed Forces Reserve Act of
1952, ch. 608, 66 Stat. 481.  See also Perpich, 110 S. Ct. at 2425;
10 U.S.C. 672(b), 673a, 673b (active duty).

   The most recent codification of reemployment rights for members of
the National Guard and other reserve units is found in the VRRA, 38
U.S.C. 2021-2026.  Section 2024(a) protects the reemployment rights of
those who enlist in the armed forces proper and Section 2024(b)(1)
protects the reemployment rights of reservists ordered to active duty.
 Reservists returning from active duty are entitled to reemployment in
their previous job or in a "position of like seniority, status, and
pay" after an absence of up to four years, or longer under certain
circumstances, and must claim their rights within 90 days of
discharge.  Sections 2024(a) and (b)(1).  Veterans returning from
active duty may not be discharged without cause for one year after
reemployment.  38 U.S.C. Section 2021(b)(1).  Under 38 U.S.C. 2024(c),
reservists performing initial active duty training for a continuous
period of less than 12 weeks must apply for reemployment within 31
days of discharge and may not be discharged without cause for six
months following reemployment.

   The provision at issue in this case, 38 U.S.C. 2024(d), enacted in
1960, 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.  /8/ Section 2024(d), unlike the provision
that covers "active duty," 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.  /9/

   b. "Interpretation of a statute must begin with the statute's
language." Mallard v. United States District Court for the Southern
District of Iowa, 109 S. Ct. 1814, 1818 (1989);  Hallstrom v.
Tillamook County, 110 S. Ct. 304, 308 (1990).  Section 2024(d) of
Title 38 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." True to the statute's broad sweep, the courts have
expressly acknowledged the unconditional language of Section 2024(d).
As the Third Circuit recently observed, "(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 Kolkhorst v. Tilghman, 897 F.2d 1282, 1286 (4th
Cir. 1990) (language of Section 2024(d) is "unequivocal and
unqualified"), petition for cert. pending, No. 89-1949;  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.").

   Adherence to the language of the statute as written is all the more
appropriate given this Court's repeated admonition that the
reemployment rights provisions are "to be liberally construed for the
benefit of those who * * * serve their country." Fishgold v. Sullivan
Drydock & Repair Corp., 328 U.S. 275, 285 (1946);  accord Coffy v.
Republic Steel Corp., 447 U.S. 191, 196 (1980);  Alabama Power Co. v.
Davis, 431 U.S. 581, 584 (1977).  There is no basis for judicial
qualification of the unqualified terms of Section 2024(d), since
application of the statute as written does not produce "consequences *
* * 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 entirely
consistent with Congress's evident goals in enacting the VRRA:  to
guarantee reservists the benefit of secure employment and to remove an
important disincentive to service in the reserve forces.

   As stated in Monroe v. Standard Oil Co., 452 U.S. at 565, "(t)his
Court does not sit to draw the most appropriate balance between
benefits to employee-reservists and costs to employers.  That is the
responsibility of Congress." Congress has performed the calculus by
authorizing bona fide tours of duty requiring substantial time
commitments and by conferring protection on reservists who undertake
them.  That should be the end of the matter, regardless of the
context.  However, the courts should be especially chary of
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
stated in Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis
omitted), "(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."

   c. Nothing in the history of the VRRA generally, or of Section
2024(d) in particular, points to an interpretation at odds with the
statutory text.  /10/ The bill that originally contained Section
2024(d), enacted in 1960, had two principal stated goals, neither of
which involved any limitations, durational or otherwise, on leaves of
absence under that section.  See Act of July 12, 1960, Pub. L. No.
86-632, 74 Stat. 467.  First, in a provision codified at 38 U.S.C.
2024 (c), the bill extended to National Guard members the same
reemployment protection enjoyed by other reservists who were called to
perform "an initial period of active duty for training of 3 to 6
months." S. Rep. No. 1672, 86th Cong., 2d Sess. 1-2 (1960).  Second,
the bill was designed to "adjust the time period within which leave of
absence rights must be asserted" after the performance of training
duty other than an initial period of training covered under Section
2024(c).  S. Rep. No. 1672, supra, at 1.  Accordingly, Section 2024(d)
requires 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 * * *." Id. 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 the Section
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.  At least one
court of appeals has relied in part on this commentary to construe
Section 2024(d) as imposing a requirement that a request for leave be
reasonable.  See Eidukonis v. Southeastern Pennsylvania Transp. Auth.,
873 F.2d 688, 693 (3d Cir. 1989);  see also App., infra, 10a.  But
this history does not support that conclusion.  /11/

   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.  But in response to a
fundamental shift in the structure of the Nation's armed forces, the
landscape has been altered dramatically over the past generation.
Now, the Nation relies heavily on voluntary reservists as a critical
component of the potential fighting force.  To ensure the readiness of
reserve units, Congress has established new training programs and
expanded the number and type of positions that must be filled by
reservists, including members of the National Guard.  See Kolkhorst v.
Tilghman, 897 F.2d at 1285 n.*;  see also, e.g., 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).  Among these are the "full-time support" positions to train
reserve units and administer the reserve program which Congress saw
fit to authorize in 1980 through the Active Guard/Reserve Program.
Army regulations established corresponding duty obligations for the
period necessary to provide proper training and continuity in those
positions.  Army Reg. 136-18, ch. 2, Section II, at 2-9 (1985).

   Many of these new forms of service, including the AGR program for
National Guard members, are classified as "active duty for training"
within the meaning of Section 2024(d).  See, e.g., notes 2, 6, 8,
supra;  Section 2024(f).  These newer positions are thus clearly
within the coverage of that Section.  In light of Congress's choice of
unconditional language, and the absence of durational or other
substantive limits, Section 2024(d) should be construed to protect
reservists who undertake to serve in any official reserve program
coming within the scope of the Section, regardless of the length of
service.

   In any event, whatever the legislature's intent at the time 2024(d)
was first enacted, Congress later modified the VRRA to extend 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.
Shortly after the program's creation, Congress amended 38 U.S.C.
2024(f) to provide that members of the National Guard performing
"full-time training or other full-time duty" under 32 U.S.C. 502(f)
would be considered on "active duty for training," and thus would be
entitled to protection under Section 2024(d).  See Veterans'
Rehabilitation and Education Amendments of 1980, Pub. L. No. 96-466,
Section 511(b), 94 Stat. 2207.  /12/ By amending Section 2024(f) to
cover those serving in the AGR program under Section 502, Congress
made clear beyond doubt that Section 2024(d) benefits were intended
not only for those called to duty of short duration, but also for
reservists in King's situation.

   To be sure, most Ready Reservists invoke the protections of Section
2024(d) for shorter periods of training -- 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.  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.") To the
contrary, that provision squarely covers less common situations as
well, 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.  Indeed, as noted, reservists like King -- although
representing a minority of all those subject to 2024(d) -- play a
critical role in Congress's plan for maintaining a ready and efficient
reserve force.

   2. The courts of appeals are divided on the proper interpretation
of Section 2024(d).  In addition to the court below, the Third Circuit
has decided that there is a "reasonableness" test under Section
2024(d), although it has developed a somewhat different formulation.
See Eidukonis v. Southeastern Pennsylvania Transp. Auth., 873 F.2d at
695-696 (courts should inquire into the length of the leave, the
employee's options to schedule the leave at other times, the amount of
notice provided, whether the request is for an extension, whether the
employee obtained legal advice, the employer's burden and ability to
find a substitute, and the sufficiency of the employer's notice to its
employees regarding leave policy.) The Fifth Circuit, in Lee v. City
of Pensacola, 634 F.2d 886 (1981), a case relied on by the Eleventh
Circuit in Gulf States, has also held that a request under Section
2024(d) must be "reasonable." /13/

   In contrast, the Fourth Circuit has held, correctly, in our view,
that there is no requirement under Section 2024(d) that a leave
request be "reasonable." Kolkhorst v. Tilghman, 897 F.2d 1282, 1286
(1990), petition for cert. pending, No. 89-1949.  /14/ In Kolkhorst, a
municipal police department placed a strict upper limit on the number
of officers in the department who could serve as reservists at any one
time.  The plaintiff in that case was denied permission by his
supervisor to join a Marine Corps reserve unit because the department
had exceeded the quota.  The Fourth Circuit held that the police
department's limit on the number of reservists in the department
violated Section 2024(d).

   The court stated that "the reasonableness standards that have been
imposed by other courts are contrary to the purpose of Section 2024(d)
to allow reservists to train with their military units without
suffering prejudice or any adverse action from their employers." It
held that "reasonableness is (not) required under Section 2024(d)."
897 F.2d at 1286.  The court noted that "the VRRA unconditionally
provides that any reservists 'shall upon request be granted a leave of
absence by such person's employer for the period required to perform'"
the pertinent duty.  Ibid.  Quoting Monroe v. Standard Oil Co., 452
U.S. at 555, the court observed that, under that Section, "employees
must be granted a leave of absence * * * and, upon their return, be
restored to their position * * *." 897 F.2d at 1286.  The court
concluded that "(t)here is nothing in the VRRA, its legislative
history, or the Monroe decision to indicate that a reservist is
entitled to a leave of absence * * * only if the request is reasonable
based on a judicially created standard that varies from one
jurisdiction to the next." Ibid.  /15/

   Although Kolkhorst involves a numerical limit, whereas this case
presents a durational one, there is a clear-cut difference in the two
interpretations of Section 2024(d) -- a difference that would have
resulted in a different outcome had the Fourth Circuit decided this
case.  King plainly would be entitled to the full protections of
Section 2024(d) under the Fourth Circuit's holding that the statute
does not permit a court to consider the reasonableness of a request
for leave.  /16/ The court of appeals in this case took a contrary
view.  Inasmuch as the question is one of great importance to the
effective operation of the reserve program, this Court should grant
review to resolve the conflict.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   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

      Attorney

   DECEMBER 1990

   /1/ The Adjutant Major is the commanding officer of the Alabama
National Guard.  See 32 U.S.C. 314(a).  He is appointed by the
Governor of Alabama.

   /2/ The court observed that King was ordered to duty under 32
U.S.C. 502(f), which provides, in pertinent part:

         Under regulations to be prescribed by the Secretary of the
      Army, * * * a member of the National Guard may

         (1) without his consent, but with the pay and allowances
      provided by law;  or

         (2) with his consent, either with or without pay and
      allowances;

         be ordered to perform training or other duty in addition to
      that prescribed under subsection (a).  * * *

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

   /3/ In Gulf States, the court identified three factors to be taken
into account in evaluating the reasonableness of a request for leave
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's request 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 the presumption is the conduct of the employee." 811
F.2d at 1469.  Only "conduct akin to bad faith on the employee's part"
will lead to a finding of unreasonableness.  Ibid.  In a footnote, see
id. at 1470 n.4, the court acknowledged that "bad faith conduct might
also be shown through requests for leaves of exceptional duration."
And, in holding that the one-year leave request at issue in that case
was not per se unreasonable," the Gulf States court added that "a
greater length of time might reach that level." Id. at 1469.

   /4/ Responsibility for administration of the reemployment rights
provisions of Title 38 is vested in the Department of Labor under 38
U.S.C. 2002A.  That Section establishes within the Department of Labor
an Assistant Secretary for Veterans' Employment and Training "who
shall be the principal advisor to the Secretary with respect to the
formulation and implementation of all departmental policies and
procedures to carry out * * the purposes of * * * chapter 43 of this
title" (which includes the reemployment rights provisions for
reservists).  Section 2002A(b)(1) requires the Secretary of Labor to
"carry out all provisions of * * * chapter 43 * * * through the
Assistant Secretary * * * and administer through (him) all programs
under the jurisdiction of the Secretary for the provision of
employment * * * services designed to meet the needs of * * * eligible
veterans."

   In addition, 38 U.S.C. 2025 requires the Secretary, through the
Office of Veterans' Reemployment Rights, "(to) render aid in the
replacement in their former positions or reemployment of persons who
have satisfactorily completed any period of active duty in the Armed
Forces." And 38 U.S.C. 2022 authorizes the United States to represent
individuals, like petitioner, in actions involving reemployment
rights.

   /5/ 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).

   /6/ As of September 30, 1989, there were almost 34,000 members of
the Army and Air National Guard serving tours in the AGR program.  See
Reserve Forces Policy Board, DOD, 1989 Ann. Rep. at 49.  In fiscal
year 1989, approximately 12,500 additional reservists and National
Guard members served on "active duty for training" under orders
specifying a period of duty of 180 days or more.  See Manpower
Requirements Rep., DOD 1991 Fiscal Year at III-55, IV-49, and VI-43,
44.

   /7/ The National Guard of the United States is comprised of the
Army National Guard and the Air National Guard, 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 Reserves.  All reserve members are
assigned to one of three distinct categories created under 10 U.S.C.
267(a):  (1) Ready Reserves, (2) Standby Reserves and (3) Retired
Reserves.  All National Guard members are part of the Ready Reserves.

   /8/ Section 2024(f) expressly provides that, for the purpose of
Section 2024(d),

      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.

   Although King 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 App., infra, 27a-28a.  Because King received his
orders for full-time duty under Section 502 of 32 U.S.C., which
governs service in the state National Guard, and was not called to
"active duty" as authorized by various provisions under Title 10, he
remained under the command and control of the State Adjutant General,
whom he was assigned to assist.  See, Perpich, 110 S. Ct. at 2425 ("a
member of the (National) Guard who is ordered to active duty in the
federal service is thereby relieved of his or her status in the state
Guard for the entire period of federal service").  See also Department
of Defense Authorization Act, 1980, Pub. L. No. 96-154, Tit. I, 93
Stat. 1141;  and see generally England, The Active Guard/Reserve
Program:  A New Military Personnel Status, 106 Mil. L. Rev. 1, 16-28
(1984) (explaining AGR personnel classification scheme).

   /9/ Reservists also receive protection against discharge, demotion,
withdrawal of benefits, or other forms of discrimination upon return
from, or on account of, service of 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 Co., 452 U.S. 549, 557-559 (1981).

   /10/ Indeed, in view of the clarity of the statutory text, resort
to legislative history should not be necessary.  See Burlington N.
R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987).

   /11/ It is likely that the 1960 Senate Report, which reflects the
range of training duty obligations that existed at that time, was 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 for 12 weeks of initial active duty for training.  In any
event, this observation in Monroe is of limited significance to the
interpretation of Section 2024(d), as the statement was made in the
course of a ruling on the meaning of yet another section of the
statute, Section 2021(b)(3), and the Court neither discussed nor
considered the various types of training covered under Section 2024(d)
that might require significantly longer time commitments.

   /12/ 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 Sections
      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 current law
      provides following duty under Sections 503-505 of title 32, U.S.
      Code.

H.R. Rep. No. 498, 96th Cong., 1st Sess. 49 (1979) (emphasis added);
see also Explanatory Statement, reprinted in 1980 U.S. Code Cong. &
Admin. News 4617, 4646.

   /13/ In addition, the Sixth and Tenth Circuits have addressed the
question whether and to what extent a request for leave under Section
2024(d) is subject to a requirement of adequate notice.  See 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).  The Lee case, cited in
text, also involved, inter alia, a question of the adequacy of notice.
 In the present case, respondent has not asserted that the notice
given was inadequate.

   /14/ The Solicitor General will shortly file a brief in response to
the Court's request on October 1, 1990, for the views of the United
States on whether the petition for certiorari in Kolkhorst should be
granted.

   /15/ The Fourth Circuit went on to state that "(e)ven if a standard
of reasonableness were applied to Section 2024(d), we believe that
Kolkhorst's request for training leave was reasonable and that the
(police) Department's policy limiting to one hundred the number of
police officers that are eligible to serve as active military
reservists is unreasonable per se under any possible formulation of
the test." 897 F.2d at 1286-1287.

   The Fourth Circuit also held that the police department's action
was invalid as a violation of Section 2021(b)(3) of the VRRA, which
forbids the denial of "hiring, retention in employment, or any
promotion or other incident or advantage of employment because of any
obligation as a member of a Reserve component of the Armed Forces."
See 897 F.2d at 1284-1285.  Because the department "planned to fire
Kolkhorst, without cause, if he insisted on exercising his statutory
right to train with a military reserve unit," the court held that the
employer had impermissibly "encroach(ed) upon the normal incidents and
advantages of Kolkhorst's employment" in violation of that provision.
Id. at 1285.

   /16/ Although the Fourth Circuit concluded, in the alternative,
that Kolkhorst would be entitled to job protection even if a
reasonableness test were appropriate under Section 2024(d), it is
clear from the opinion that the court's rejection of any such limit on
Section 2024(d) rights is controlling law of the circuit and would
determine the outcome of any future case.

   In Kolkhorst, the court also found that the police department's
action violated the anti-discrimination provision of Section
2021(b)(3).  Although it is possible to challenge an employer's denial
of leave as a discriminatory action in violation of Section
2021(b)(3), not every denial of leave that violates Section 2024(d)
will also constitute a violation of Section 2021(b)(3), and thus the
rights conferred by the two sections are not co-extensive.  As this
Court stated in Monroe, supra, Section 2021(b)(3) was enacted for the
"significant but limited purpose of protecting the employee-reservist
against discriminations like discharge and demotion, motivated solely
by reserve status." 452 U.S. at 559 (emphasis added).  Thus, for
example, Section 2021(b)(3) would not prohibit the denial of a leave
of absence, or discharge or other adverse action by an employer based
on the duration of an employee's leave of absence, as long as the
employer was applying a reasonable, neutral policy formulated without
regard to the reason for leave.  See, e.g., Sawyer v. Swift & Co., 836
F.2d at 1261-1262.  Thus, in King's case, even if the hospital's
action had been challenged under both Sections 2024(d) and 2021(b)(3),
a finding that Section 2024(d) had been violated would not require a
finding that Section 2021(b)(3) had been violated.  Indeed, the
employer's action may well have been valid under the latter Section.

   APPENDIX