JAMES ANDREW THOMAS, PETITIONER V. RICHARD CHENEY, SECRETARY OF DEFENSE, ET AL. NO. 90-7718 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Brief For The Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1) /1/ is reported at 925 F.2d 1407. The judgment of the district court (Pet. App. 2) and the magistrate's opinion adopted by the district court (Pet. App. 3 & 4) are unreported. The order of the district court adopting the magistrate's opinion, Appendix A, infra, is unreported. JURISDICTION The judgment of the court of appeals was entered on February 12, 1991. Appendix B, infra. The petition for a writ of certiorari was filed on April 16, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Secretary of the Army has authority to determine administratively that a service member has been absent without leave, and thus is ineligible for pay and other benefits accruing during the period of absence. 2. Whether substantial evidence supports the Secretary's conclusion that petitioner was absent without leave during a nine-month period when he abandoned his assigned place of duty and failed, without permission, to report to any military authority or perform any military duties. STATEMENT 1. Petitioner was a member of the United States Army Reserve for over thirty years, commencing in 1950. By 1981, he had achieved the rank of major. In that year the Army selected petitioner for a two-year tour of active duty as an instructor for the Reserve Officer Training Candidate ("ROTC") program at Southwest Missouri State University ("SWMSU"). Petitioner received this assignment under a program that allows reservists to perform their tour of duty at or near their original place of assignment. Service members participating in this program may not involuntarily be reassigned to a duty station more than fifty miles away. Pet. App. 1, at 2. After petitioner experienced personal friction with his commanding officer at SWMSU, the commanding officer offered petitioner the choice of requesting reassignment or being relieved of duties. Petitioner requested reassignment in February 1982. While awaiting permanent reassignment orders, petitioner received orders to perform temporary duty at Fort Riley, Kansas, from June 7 to July 21, 1982. Before he began that service, he received permanent reassignment orders, dated June 1, 1982, ordering him to report to Fort Knox after completion of his Fort Riley service. The June 1 orders were revoked on June 8 by new orders stating that his permanent assignment at SWMSU remained in effect. While he was on temporary duty at Fort Riley, the Army advised petitioner that the only reassignments available to him were at Fort Eustis, Virginia or Fort Bragg, North Carolina. Petitioner advised the Army that these options were not acceptable, because each would require him to relocate more than fifty miles. On July 21, 1982, after completing his temporary duty at Fort Riley, petitioner did not return to SWMSU as required by his orders, but instead went home to Tulsa, Oklahoma. Pet. App. 1, at 3. On August 3, 1982, the Army issued petitioner reassignment orders directing him to report on August 16, 1982 to Fort Bragg, North Carolina, and to serve there until his two-year obligation was completed on April 10, 1983. Petitioner notified the Army by mailgram on August 4, 1982 that he did not intend to comply with these orders and sought clarification as to what he should do. After he failed to report to Fort Bragg on August 16, an investigating officer met with him in Springfield, Missouri on August 17 to inquire into the facts surrounding his noncompliance. The officer advised petitioner that he should comply with the Fort Bragg orders and that he was then considered absent without leave ("AWOL"). Although there is some question as to what was said at this meeting, the court of appeals concluded that the investigating officer did not advise petitioner that he had been relieved of his duties at SWMSU. Pet. App. 1, at 4 n.1. Petitioner neither obeyed the orders nor returned to his duty station at SWMSU. Instead, although he admittedly was not on leave, he returned to Tulsa, Oklahoma to await reassignment orders acceptable to him. He remained there, drawing military pay without performing any military duties. Pet. App. 1, at 5. The Army subsequently determined that petitioner had been AWOL from July 22, 1982 through April 10, 1983, the last day of his two-year tour of duty. Because 37 U.S.C. 503(a) provides that "(a) member of the Army * * * who is absent without leave * * * forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable," this classification rendered petitioner ineligible for the pay and allowances he had received while absent. See Pet. App. 1, at 6. 2. In June 1984, petitioner asked the Army board for Correction of Military Records ("ABCMR") to expunge all references in his records to his AWOL status, and dismiss all Army claims to overpayment of pay and allowances. The ABCMR denied petitioner's request. The ABCMR did agree with petitioner that he was justified in declining to comply with the reassignment orders to Fort Bragg, because he was not obliged to accept reassignment to a duty station more than fifty miles away. C.A. App. 7-8. But this did not justify petitioner in returning to his home and waiting for the Army to resolve his case. Because "he returned home without permission from competent authority, and since there is no evidence he timely attempted to resolve his status, * * * he should be administratively considered AWOL." Id. at 8. The Secretary of the Army, acting through the Deputy Assistant Secretary, approved the ABCMR decision. 3. Petitioner then filed suit in the United States District Court for the Northern District of Oklahoma, arguing that the Secretary's decision was arbitrary and capricious. A magistrate concluded that Army Regulation ("AR") 630-10 did not authorize the Army to classify petitioner as administratively AWOL. According to the magistrate: "The Regulation does not * * * define the term 'administrative AWOL,' and the United States Magistrate here concludes, upon review of AR 630-10, that no classification, as such, exists." Pet. App. 4, at 3. Second, the magistrate ruled that petitioner was not AWOL in any event. The magistrate found that petitioner had been relieved of his obligation to report back to SWMSU. Coupled with the undisputed finding of the ABCMR that the Fort Bragg orders were invalid, this left petitioner, according to the magistrate, in "bureaucratic 'limbo.'" Id. at 11. The magistrate thus concluded that it was incorrect for the Army to have concluded that petitioner was absent without leave, because it had not, in the magistrate's view, adequately advised petitioner where to report. Id. at 13-14. 4. The district court issued a brief order adopting the magistrate's report, Appendix A, infra, and subsequently entered a judgment ordering the Secretary to award petitioner constructive active service from July 22, 1982 to April 10, 1983, with concomitant pay and benefits, and to correct petitioner's records to show successful completion of his two-year commitment, Pet. App. 2. 5. The court of appeals reversed. First, the court held that 37 U.S.C. 503(a), as implemented by AR 630-10, authorizes and requires the Army to withhold salary and benefits from a service member on unauthorized leave, even if the service member has not been criminally prosecuted for the absence. That the regulation does not explicitly use the term "administrative AWOL," the court held, does not preclude Army administrative officials from determining that a soldier is in fact absent without leave. A contrary conclusion "would render both the statute and the regulation toothless in situations where the Army, in its discretion, chooses not to prosecute criminally a service member on unauthorized leave, but instead opts only to not pay or otherwise reward the absentee." Pet. App. 1, at 8-9. Second, the court affirmed the ABCMR's decision that petitioner was "administratively AWOL" from July 22, 1982 until April 10, 1983, and therefore not entitled to pay or benefits for that period. In this regard, the court found that petitioner's valid place of duty was at SWMSU, as established by his last valid duty station orders, dated June 8, 1982, which required him to remain at SWMSU until April 10, 1983. Pet. App. 1, at 13-15. Although the court observed that petitioner may have been confused as to his proper duty station, "this confusion, especially on the part of a commissioned officer of over 30 years experience, does not entitle (him) to depart all military control and absent himself without authorization." Id. at 15-16 (footnote omitted). The court noted that petitioner could have avoided being AWOL by returning to SWMSU or by reporting in person to any military station and attempting to clarify his duty station and reassignment orders. /2/ Petitioner was not entitled, however, "to simply 'go home,' write some letters, collect paychecks for nine months for no work, and await new orders." Id. at 16. Judge Newman dissented, concluding that neither Section 503(a) nor AR 630-10 authorizes determination of AWOL status except in criminal prosecutions, Pet. App. 1, at 9-10 (dissenting opinion), and that petitioner acted reasonably in returning home, because he had no valid orders, Pet. App. 1, at 21-25. ARGUMENT 1. Petitioner's principal contention (Pet. 11-24) is that the Army does not have authority to treat a soldier as absent without leave unless it criminally prosecutes the soldier under the Uniform Code of Military Justice. This contention is meritless. The best guide to determining the Army's authority, of course, is the words of the statute in which Congress has delineated that authority. In this case, Congress has provided in 37 U.S.C. 503(a) that "(a) member of the Army * * * who is absent without leave * * * forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable." On its face this provision bars the Army from disbursing "pay and allowances" to any "member * * * who is absent without leave." 37 U.S.C. 503(a). Petitioner contends that, because Section 503(a) does not explicitly describe who is to determine whether a soldier is absent without leave, Congress intended to restrict the statute's application to service members who have been convicted of "criminal" AWOL under the Uniform Code of Military Justice, 10 U.S.C. 886. This argument effectively would rewrite Section 503(a) to include the following bracketed and underlined language: A member of the Army * * * who is (convicted pursuant to 10 U.S.C. 886 of being) absent without leave * * * forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable. Given that the Army does not have the resources to prosecute every absent service member, this argument attributes to Congress the absurd intent that the military be required to continue disbursing pay and accruing benefits to soldiers who abandon their post without leave. Petitioner has offered no support for this odd notion. The Secretary of the Army, the official charged with applying the statute, has adopted regulations that contradict petitioner's reading, by providing for administrative determinations of AWOL status. /3/ Accordingly, the court of appeals correctly declined petitioner's invitation to infer this startling statutory limitation, which would "circumscribe the authority of military commanders to an extent never intended by Congress," Brown v. Glines, 444 U.S. 348, 360 (1980). Contrary to petitioner's assertion (Pet. 17-24), administrative determinations of AWOL are not some novel creation of the Army fashioned for the first time in this case. To the contrary, although the practice has not led to frequent litigation, several cases have acknowledged the practice without disapproval. See, e.g., Borys v. United States, 201 Ct. Cl. 597, 607 (discussing administrative determinations under AR 630-10), cert. denied, 414 U.S. 1001 (1973); Werner v. United States, 642 F.2d 404, 409-410 (Ct. Cl. 1981) (same); Roberts v. Commanding General, 314 F. Supp. 998 (D. Md. 1970) (same). Finally, petitioner is wrong to assert (Pet. 18) that the court's holding "directly contravenes" Bell v. United States, 366 U.S. 393 (1961), and that it "conflict(s)" with the decision in LaFlower v. United States, 849 F.2d 8 (1st Cir. 1988). First, Bell is entirely inapposite. In that case, this Court declined to decide whether the Missing Persons Act of 1942 authorized the Secretary to withhold pay from American soldiers who had aided their Korean captors after being captured during the Korean War, because the Secretary had not relied on that statute in deciding to withhold pay. The case did not involve AWOL status, Section 503(a), or AR 630-10. Moreover, the Court explicitly suggested that the strong presumption against termination of military pay discussed in that case would not apply to soldiers absent without leave. See Bell, 366 U.S. at 402 n.13. Nor can petitioner draw any substantial support from LaFlower, which involved interpretation of a statute barring payment of life insurance proceeds with respect to soldiers who had been AWOL for more than a month. Contrary to petitioner's suggestion, the court in that case concluded that the soldier was AWOL, even though the soldier had not been convicted. See 847 F.2d at 11-12. /4/ In sum, petitioner can cite no decision of any court, and we are aware of none, upholding the claim he raises here. The governing statute broadly requires the Secretary to withhold pay from soldiers who are absent from duty without leave and the Secretary has issued regulations designed to do just that. Accordingly, petitioner's claim does not merit review by this Court. 2. Finally, petitioner contends (Pet. 25-44) that the record does not adequately support the Secretary's determination that petitioner was absent without leave. It is undisputed that petitioner was not on any military base and did not perform any military duties during this time, and it is undisputed that he was not on leave. Although petitioner may have had some question as to the location to which he should report, he had no reasonable basis for believing that he could continue on active duty without reporting to a duty station or other military facility. Accordingly, it is not plausible to claim that the Secretary did not have a sufficient basis for determining that he was absent. /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General ANTHONY J. STEINMEYER E. ROY HAWKENS Attorneys MAJOR DIANA MOORE Office of the Judge Advocate General Department of the Army JUNE 1991 /1/ The petition refers to thirteen appendices numbered Appendix 1 through Appendix 13. See Pet. ii-iii. Pet. App. 1 contains the two separately paginated opinions written by members of the panel of the court of appeals; to avoid confusion, citations to the dissenting opinion are identified by a parenthetical reference. /2/ The court noted that, because petitioner failed to report to any facility during this extended period, he should have been considered absent without leave even if his SWMSU orders had been terminated. Pet. App. 1, at 16. /3/ Petitioner's assertion (Pet. 11) that the Army's regulations do not authorize administrative determinations of AWOL status is without merit. As the court of appeals explained (Pet. App. 1, at 10), those regulations explicitly recognize that a member can be treated as AWOL in the absence of criminal prosecution, by authorizing the unit commander to "decide whether disciplinary (or criminal) action should be started and/or whether the member should be charged with time lost." AR 630-10, Paragraph 1-7 (emphasis added; brackets in court opinion). Similarly, AR 630-10 Paragraph 1-8.c provides that a soldier may be charged with time lost for the absence, even if he is acquitted in a criminal proceeding, because "(t)he acquittal or disapproved conviction affects only the disciplinary aspects of the absence." In light of the deference due to the Army's interpretation of its own regulations, the court of appeals thus correctly concluded that "(s)imply because . . . (AR 630-10) do(es) not instruct the Army record keeper as to the specific nomenclature for non-criminal AWOL does not mean that a reasonable method of classification and description of this status for entry on the service member's record is therefore precluded." Pet. App. 1, at 9. /4/ Petitioner also contends (Pet. 45-51) that administrative determinations of AWOL status violate the Due Process Clause of the Fifth Amendment unless they are attended with the procedural protections customarily associated with criminal trials. This claim is meritless. The determination here did not have criminal consequences. It resulted only in a deprivation of monetary benefits (pay and other employment benefits). Accordingly, petitioner was not entitled to the protections he would have received before a criminal trial and conviction under the Uniform Code of Military Justice. The procedures set forth in Title 10 and the accompanying Army Regulations provide adequate process for this purely administrative determination. See 10 U.S.C. 938 (member may submit complaint of wrong to commanding officer and, if redress is denied, may channel complaint to Secretary through any superior commissioned officer); 10 U.S.C. 1552 (member may seek relief from ABCMR); AR 630-10 Paragraph 1-8.a (member may seek to have absence excused as "authorized"); AR 630-10 Paragraph 1-9 (member may seek to have absence excused as "unavoidable"). We note that the procedural due process claim is especially weak in this case, where petitioner already had received pay and benefits, so that the sole effect of the determination was to create an obligation for petitioner to repay the government. /5/ Petitioner's suggestion (Pet. 35) that the court of appeals affirmed the administrative determination on a ground not relied on by the ABCMR misses the point of the ABCMR's order. That order did not rest on a determination as to which place was the required location for petitioner's service. Rather, it rested on the unquestioned fact that petitioner was absent from all military authority. See C.A. App. 8. The court of appeals' conclusion that the correct location was SWMSU in no way creates a new ground of decision different from the ground relied on by the ABCMR. APPENDIX