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

   Reply Brief For The Petitioner

   Respondent concedes that the operative statutory provision -- 38
U.S.C. 2024(d) -- neither "state(s) the period of time for which an
employee may obtain a leave of absence to attend training as a
reservist or National Guard person," Br. 36, nor "expressly impose(s)
number, frequency, or duration limitations." Id. at 31.  As a result,
respondent effectively concedes the textual weakness of its
interpretation.  Undaunted, respondent nonetheless insists that a
durational limit must be read into the provision to "avoid
unreasonable consequences." Ibid.  We disagree.  Applying Section
2024(d) as Congress wrote it does not make the statute unworkable or
lead to a result that is irrational or contrary to Congress's intent.
To the contrary, it faithfully implements Congress's intent.

   1. a. Respondent focuses on the differences between reemployment
rights provided under Section 2024(d) to Reservists performing "active
duty for training" and the protections afforded to Reservists, and
others, who serve tours of "active duty" that are comparable in length
to the three-year tour petitioner served in the Active Guard Reserve
(AGR) Program.  /1/ Respondent notes that Section 2024(d) guarantees a
"leave of absence" (which means that the Reservist maintains his
status as an employee) and the right to return to precisely the same
job previously occupied (Br. 4), rather than the right to
"reemployment" in the same or a similar job, which is available under
Section 2024(a) and (b) to Reservists and others who complete a
multi-year tour of active duty.  /2/ Persons returning from active
duty are allowed 90 days to apply for reemployment under Section
2024(a) and (b), whereas, under Section 2024(d), Reservists returning
from active duty for training must report to their pre-service jobs
"at the beginning of the next regularly scheduled working period"
following their return to the place of employment after release from
service.  Respondent suggests that the requirements of Section 2024(d)
are ill-suited to lengthy periods of absence;  if Congress had
intended Section 2024(d) to confer reemployment right for extended
periods, respondent maintains, it would have set forth rights and
responsibilities similar to those provided under Section 2024(a) and
(b).  Resp. Br. 11-16.

   None of the features of Section 2024(d) noted by respondent are
incompatible with its application to any of the tours of duty that
fall within the scope of the provision.  It is neither unheard of nor
impossible for an employee to take a leave of absence lasting years.
Nor is there any apparent obstacle to an individual travelling back to
his previous place of employment at the end of a prolonged leave and
reporting to his job the next day.  /3/

   The fact that Congress chose to grant persons serving multi-year
tours of active duty a longer period to return to civilian employment
does not produce any inconsistency.  Congress could reasonably have
concluded that a shorter period was appropriate because most
Reservists required to serve active duty for training are not away
from their jobs for more than two weeks.  As noted in our opening
brief, at 30-31, Section 2024(d) was incorporated into the Veterans'
Reemployment Rights Act (VRRA) at a time when the training obligations
of Reservists were brief and intermittent.  Even today, the great
majority of Reservists invoking the protections of Section 2024(d) are
away from their jobs for short, required training periods of one
weekend per month and two weeks per year, Gov't Br. 31, and relatively
few Reservists participate in the tours covered by Section 2024(d)
that require more substantial time commitments.  See Gov't Br. 23
n.18, 24-25 n.19.  But even though Section 2024(d) may have been
primarily intended to cover short training tours, and incorporates
features geared to the typical case, that does not bar application of
the provision to the broad range of cases covered by the statute's
language.  As this Court has recently stated, Congress is entitled to
legislate for a class with particular examples in mind.  See Board of
Governors v. Dimension Fin. Corp., 474 U.S. 361, 371 (1986).  Although
Section 2024(d) may be aimed at the most common training tours, it
applies to the exceptional case as well.  /4/

   b. Respondent contrasts Section 2024(d)'s command -- that an
employee performing active duty for training be returned to his
previous position -- with the requirement in 38 U.S.C. 2021(a)(B),
which applies under Section 2024(a) and (b) to those who serve active
duty tours, that a returning employee be granted a position only if
"still qualified" to perform his job.  Br. 13.  Respondent likewise
observes that although Secton 2021(a)(B) relives the employer of the
obligation to rehire the employee if circumstances "have so changed as
to make it impossible or unreasonable" to comply, Section 2024(d)
contains no such explicit qualification.  See Resp. Br. 11 n.17.
Respondent claims, Br. 13, that the failure to include these express
provisos (which are addressed to eventualities likely to occur during
long periods of absence) shows that Section 2024(d) was intended to
apply only to leaves of short duration.

   Respondent's contention is without force because the explicit
limitations placed on the employer's obligations by Section 2021(a) do
not differ significantly from those implicit in Section 2024(d).  This
Court has recognized that the laws protecting veterans' reemployment
rights are not designed to provide members of the Armed Forces with
advantages over fellow workers, but rather to insure that those who
serve their country will "not() be penalized on (their) return by
reason of (their) absence," and will be returned to "the precise point
(they) would have occupied had (they) kept (their) position
continuously" during the period of duty.  Fishgold v. Sullivan Drydock
& Repair, 328 U.S. 275, 284-285 (1946);  see also Siaskiewicz v.
General Electric Co., 166 F.2d 463, 466 (2d Cir. 1948)
("Discrimination in favor of veterans is as foreign to the purposes of
the (reemployment rights laws) as discrimination against them.");
Monroe v. Standard Oil Co., 452 U.S. 549, 561 (1981) (Reservists are
entitled "to the same treatment afforded their co-workers not having *
* * military obligations").  In accord with those principles, Section
2024(d) by its terms makes clear that it is not designed to make the
Reservist better off than he would have been had he stayed on the job:
 by providing that a Reservist on training duty shall be returned to
the status he "would have had" if he had "not been absent for such
purposes," the provision makes clear that it does not mandate his
"return" to a job that was eliminated during his absence.  Compare 38
U.S.C. 2021(b)(2) (same language for inductees).

   In this respect, the employer's duties under Section 2024(d) are
virtually the same as under Section 2021(a)(B), since the exception
for when "the employer's circumstances have so changed as to make it
impossible or unreasonable" to comply with the latter provision, see
Resp. Br. 29 n.69, is limited "only (to instances) where reinstatement
would require creation of a useless job or where there has been a
reduction in the work force that would reasonably have included the
veteran." Davis v. Halifax Cty. Sch. Sys., 508 F. Supp. 966, 968
(E.D.N.C. 1981);  see also Cason v. Emanuel County Board of Educ., 101
L.R.R.M. 2045, 2046-2047 (S.D. Ga. 1979);  Jennings v. Illinois Office
of Educ., 97 L.R.R.M. 3027, 3029-3030 (S.D. Ill. 1978), aff'd, 589
F.2d 935 (7th Cir.), cert. denied, 441 U.S. 967 (1979);  Schaller v.
Board of Educ., 449 F. Supp. 30, 33 (N.D. Ohio 1978).  See also Davis
v. Halifax Cty. Sch. Sys., 508 F. Supp. at 968 (the commands of
Section 2021(a)(B) apply with full force even if all eligible
positions are filled at the time of reappointment);  Kay v. General
Cable Corp., 144 F.2d 653, 655 (3d Cir. 1944) (Same);  Witter v.
Pennsylvania National Guard, 462 F. Supp. 299, 305 (E.D. Pa. 1978)
(same).  Like Section 2021(a)(B) (see also Section 2021(b)(2)),
Section 2024(d) does not require an employer to create a useless job;
nor does it mandate a Reservist's reinstatement to a position that
would have been eliminated whether or not the Reservist had elected to
take a leave of absence.  /5/

   Likewise, although Section 2024(d) does not address Reservists'
rights to return to positions for which they are no longer qualified
(other than as the result of a service-related disability), there is
nothing in Section 2024(d) that requires employers to retain
Reservists not capable of performing their jobs.  /6/ In sum, it is of
no significance that Section 2024(d) does not contain language
identical to that in Section 2021(a)(B) expressly "address(ing) the
obligations the employer would owe an employee whose position has been
abolished or redefined." Resp. Br. 13.  Since Section 2024(d)
implicitly fixes the employer's obligations and the Reservist's rights
in such cases, the absence from Section 2024(d) of explicit language
directed to those contingencies does not render Section 2024(d)
incapable of application to prolonged tours of duty.

   2. Respondent complains that the government's interpretation of
Section 2024(d) "does not fall within (the) hierarchical scheme of
protection afforded by the law." Br. 17.  Respondent suggests that
Congress placed Reservists serving active duty for training under
Section 2024(d) "at the bottom of the employment rights scheme," Br.
16, and that it is therefore "impossible to believe that Congress
intended to grant greater rights" to those involved in "active duty
for training" than to "inductees, enlistees, and those called or
ordered to duty." Br. 15-17, 36.

   By purporting to discern within the VRRA a lexical ordering of
categories of service and reemployment protections, respondent
superimposes an artificial hierarchy without support in the statute.
Respondent creates this ordering only by setting to one side the very
clear absence of a durational limit in Section 2024(d), which it
claims is out of keeping with the ordering it constructs.  /7/
Contrary to respondent's contentions, the VRRA scheme does not admit
of a simple ranking of the varying protections afforded by its
provisions.  Rather, the features of the different VRRA provisions --
including durational limits or the absence thereof -- reflect an
allocation of benefits and burdens tailored to the needs and demands
of different types of service.  By seeking to circumscribe the rights
clearly conferred under Section 2024(d) in order to conform with an
artificial hierarchy, respondent disturbs the balance Congress has
struck in each instance "between benefits to employee-reservists and
costs to employers." Monroe v. Standard Oil Co., 452 U.S. 549, 565
(1981).  /8/

   3. a. Respondent's attempt (Resp. Br. 19-23) to undercut the
government's reliance on the 1980 amendment to 38 U.S.C. 2024(f) --
which provided that members of the National Guard performing full-time
duty under 32 U.S.C. 502 would receive reemployment protection under
Section 2024(d), see Gov't Br. 910 & n.11, 33-35 -- boils down to the
contention that "full time duty under Section 502" does not include
full time duty in the AGR Program.  Respondent maintains, Br. 23, that
the term "other duty" in 32 U.S.C. 502(f), see Gov't Br. App. 1a, was
"never intended * * * (to) encompass a three-year or longer extended
tour of duty in the AGR program." In attempting to justify this
contention, respondent bypasses the language of Section 502(f), which
refers in unqualified terms to "training or other duty" and contains
nothing that would prevent the inclusion of full-time AGR duty within
the category of "other duty." Respondent also ignores the longstanding
practice of the National Guard of the United States which, since 1980,
has issued orders to serve in the AGR program under Section 502(f).
See Gov't Br. 8, 33-35 n.25.

   Respondent attempts to justify its thesis solely by reliance on a
remark in the Senate Report, Br. 22 & n.53, that Section 502(f) was
"not intended * * * to encourage any additional drill pay periods" or
"any additional training with pay." See S. Rep. No. 1584, 88th Cong.,
2d Sess. 2-3 (1964).  Regardless of what the authors of that remark
intended to "encourage," the comments do not bear the weight
respondent places on them, which is, in effect, to invalidate 32
U.S.C. 502(f) as a source of authority for calling members of the
National Guard to serve in the AGR Program, in contravention of
longstanding practice and the plain terms of the provision.  /9/

   Even assuming, arguendo, that respondent's characterization of the
scope of Section 502(f) was valid when Section 502(f) was enacted,
respondent's description was no longer correct by the time Section
2024(f) was amended in 1980.  In the first in a series of yearly
enactments authorizing and appropriating funds for the AGR program,
Congress specifically provided that members of the National Guard in
the AGR program could be ordered to "serv(e) on active duty under * *
* section 502(f) of title 32, United States Code." See Gov't Br. 34
n.25 (citing the Department of Defense Appropriation Act of 1980).
National Guard members in the AGR have received their orders under
that provision ever since.  Thus, the phrase "other duty" in Section
502(f) unquestionably encompasses full-time duty in the Active Guard
Reserve Program.

   b. In the course of discussing the 1980 amendment to Section
2024(f), respondent at one point appears to argue (Br. 20-21) that
Congress's decision in 1980 to define "training or other full time
duty" authorized under 32 U.S.C. 502(f) as "active duty for training"
within the meaning of Section 2024(d) may have effected an expansion
of the category of personnel covered under Section 2024(d) to include
National Guard members in the AGR program.  However, respondent
contends that the 1980 amendment in no way enlarged the duration of
leave protected under that Section.

   We do not disagree.  Before the 1980 amendment to Section 2024(f),
there was some question as to whether full time support personnel in
the AGR program (who do not receive training) were covered by Section
2024(d), since it applies to "active duty for training." /10/ The
amendment to Section 2024(f) made clear that the protections of
Section 2024(d) applied to all personnel serving full-time under
Section 502(f), including AGR personnel.  However, the 1980 amendment
in no way altered the meaning of Section 2024(d) as originally enacted
with regard to the duration of coverage available under that Section.
As it stood before Section 2024(f) was amended to cover AGR personnel,
the plain terms of Section 2024(d) contained no durational limit and
would have afforded comprehensive protection to any Reservist engaged
in a bona fide tour of training duty for the full length of that tour.
 The 1980 amendment simply deemed AGR duty to be a form of "active
duty for training" covered by Section 2024(d);  it did not increase
the length of leaves of absence protected under that Section.  /11/

   Although it was not necessary for Congress to amend Section 2024(d)
to increase the duration of its protections, Congress's decision to
extend the coverage of Section 2024(d) to AGR personnel provides
powerful support for the conclusion that Section 2024(d) does not, and
never did, impose arbitrary time limits on the rights it provided.  It
would have made no sense for Congress to extend reemployment benefits
under Section 2024(d) to Reservists serving tours known to require a
three-year commitment if that Section only protects reemployment
rights for shorter periods.  Congress surely would not have taken the
futile step of bringing a reserve program within the reach of a
reemployment rights provision that offers the participants no
reemployment protection.  /12/

   Respondent's interpretation of the statute, in contrast to our
reading of the pertinent provision, leaves AGR support personnel --
such as petitioner -- with no reemployment rights.  Petitioner is
covered by Section 2024(d), not by any other reemployment rights
provision, by virtue of the fact that he was called into service under
32 U.S.C. 502, and Section 2024(f) provides that service under 32
U.S.C. 502 constitutes active duty for training under Section 2024(d).
 For administrative reasons, the Army requires AGR personnel serving
full-time tours of duty to serve for at least three years.  Gov't Br.
8.  Yet respondent contends that this Court should adopt a per se rule
that a request for a three year leave of absence is unreasonable and
hence unprotected under Section 2024(d).  Congress did not intend that
result.  Thus, contrary to the court of appeals' invocation of Church
of the Holy Trinity v. United States, 143 U.S. 457 (1892), Pet. App.
11a, a literal construction of the statute does not produce an absurd
result.  To the contrary, failing to protect AGR personnel like
petitioner would undermine Congress's intent.

   For the foregoing reasons, and those stated in our opening brief,
the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JUNE 1991

   /1/ Respondent erroneously states (Br. 9 n.13, 10 n.15) that
Section 2024(d) is the reemployment rights provision that applies to
Reservists serving "periods of active duty up to five years" under 10
U.S.C. 679(a).  In fact, that Section is rarely invoked as authority
to call a Reservist into active duty.  In any event, a Reservist
called under that Section would be covered under 38 U.S.C. 2024(b),
not Section 2024(d) of the Veterans' Reemployment Rights Act.  The
longest tour of duty that currently falls within the scope of Section
2024(d) is the three-year tour of full-time duty required by the AGR
Program in which petitioner was enrolled.

   /2/ Section 2024(a) and (b) provide that enlistees, Reservists, or
others who voluntarily or involuntarily enter on active duty enjoy
reemployment rights on the same terms as inductees.  The reemployment
rights of those inducted into the Armed Forces are governed by 38
U.S.C. 2021(a) and (b), which is reprinted at App., infra, 1a-3a.  See
also 38 U.S.C. 2024(c) (reemployment rights following initial active
duty training as provided for inductees).

   /3/ Respondent notes, Br. 18 n.36, that, in enacting Section
2024(d) in 1960, Congress eliminated a provision in the prior law
allowing trainees 30 days to report to work, explaining that "(a)
period of 30 days within which to assert leave of absence rights by
persons performing * * * training such as an armory drill of 2 hours
is unrealistic." However, from the fact that Congress thought it
unnecessary to allow an extensive interval to return to work from a
training session that lasts only hours, it does not follow that a
short interval is unworkable or unreasonable following a lengthy
period of leave.

   /4/ In any event, the different periods provided for return to
civilian employment may be justified on the basis of the nature of the
duty itself.  For example, Congress may have decided that a return to
civilian life following most of the training encompassed by Section
2024(d) would tend to be less difficult than the return to ordinary
life after three months of initial active training duty (which
involves intensive training that includes preparation for combat) (see
38 U.S.C. 2024(c) (31 days to apply for reemployment)), or after
several years of active duty in the Armed Forces (which could involve
prolonged exposure to combat or other stressful conditions).
Respondent seeks to second-guess these judgments by superimposing
"reasonableness" limitations on Section 2024(d) that are not present
in the statute.

   Also in contrast with Section 2024(a)-(c), Section 2024(d) does not
provide post-return job protection from discharge "without cause." See
Resp. Br. 14.  This difference could likewise be based on a
congressional judgment that such protection was not needed for brief
training tours.  It does not follow from the decision not to provide
this protection, however, that application of Section 2024(d) to
longer training tours is inconsistent with the statutory language, or
that it contravenes Congress's design.  There is no compelling reason
why this class of Reservists must be provided post-return job
protection on the same terms as classes covered by other subsections,
especially since Congress could justifiably have decided that other
groups of employees needed more protection.

   /5/ The "changed circumstances" proviso in Section 2021(a)(B)
cannot be compared with the amorphous, multi-factor "reasonableness"
test that the courts have created under Section 2024(d).  The former
applies only in exceptional and well-defined situations, and its
application is guided by the well-established principle that the
employee is to be restored to a position as favorable (but no more
favorable) than the one he would have occupied had he not left his
job, even if such restoration requires great sacrifice by the
employer.  In contrast, the "reasonableness" tests that have been
applied by the courts to leaves under Section 2024(d) involve a
far-ranging assessment of the employer's convenience and interests as
well as the Reservist's conduct and motives, and allow broad judicial
discretion to balance the multiplicity of factors.

   In addition, the Section 2021(a)(B) proviso, unlike the
reasonableness test, is assessed as of the time the Reservist or
veteran returns from duty, when the employer's "changed circumstances"
can be known with specificity and certainty.  Under Section 2024(d),
the reasonableness of the leave is evaluated as of the time of the
request, when the impact of the Reservist's leave on the employer is
often no more than a matter of speculation.

   /6/ In this regard, Reservists completing active duty for training
under Section 2024(d) enjoy the same degree of protection as
Reservists returning from initial active duty training (Section
2024(c)) or active duty (Section 2024(b)).  The latter provisions, in
contrast with Section 2024(d), bar the discharge of employees "without
cause" within six months or one year after reemployment following the
completion of service.  See Resp. Br. 14.  In no case, however, would
an employer be barred from discharging an unqualified employee under
any of these provisions (since such a discharge would be "for cause"),
as long as the discharge does not result from the imposition of
unreasonable or arbitrary employment standards.  See, e.g., William F.
Congrove v. St. Louis-San Francisco R.R., 89 Lab. Cas. (CCH) Paragraph
12,347, at 25,798-25,799 (W.D. Mo. 1980);  Taylor v. Southern Pacific
Co., 308 F. Supp. 606, 609 (N.D. Cal. 1969).

   /7/ The fact that a returning Reservist is entitled under Section
2024(d) to the same job he previously occupied, rather than, at the
employer's election, to the same or a similar job as provided under
Section 2021(a) and Section 2024(a)-(c)), also belies respondent's
suggestion that Reservists that fall within the reach of Section
2024(d) are "at the bottom of the employment rights scheme."

   /8/ More specifically, there is no foundation for respondent's
assertion that interpreting Section 2024(d) to impose no fixed
durational limit fails to fit in with the scheme of durational limits
established under other sections.  While Congress imposed durational
limits under Section 2024(a)-(c), it did not impose durational limits
in some other provisions of the VRRA.  Congress may have decided there
was no need to establish an explicit durational limit in Section 2021
for involuntary inductees (since it is unlikely personnel in that
category would serve longer than necessary);  in Section 2024(d) for
active duty trainees (since training programs generally have inherent
limits and a fixed duration, see Gov't Br. 37 n.27);  and in Section
2024(e) for preinduction examinations (which are quite short).  In
contrast, many of the individuals covered under Section 2024(a) and
(b) are volunteers who might choose to prolong their military service
indefinitely.  Congress may have decided to protect employers from the
obligation to reemploy those members of the Armed Forces who were most
likely to serve multiple tours of duty.

   /9/ Respondent's attempt to invoke the principle of ejusdem
generis, Br. 22 & n.51, to support its narrow view of the reach of
Section 502(f) is also to no avail.  Although other subsections of 32
U.S.C. 502 make reference to specific types of duty, those subsections
are clearly not intended as an enumeration of the term "other duty" in
Section 502(f), which was added to the statute after those subsections
were enacted in order to provide authority for training activity not
already covered by other parts of Section 502.

   /10/ However, at the time Section 2024(d) was added in 1960, the
definitional section of Title 38 stated that "active duty for
training" included, "in the case of members of the Army National Guard
or Air National Guard of any State, full-time duty under section * * *
502 * * * of title 32." 38 U.S.C. 101(22)(C).  See Pub. L. No. 85-857,
Sept. 2, 1958, 72 Stat. 1108.  Thus, it appears that, prior to 1980,
38 U.S.C. 2024(d) applied to full-time personnel called under 32
U.S.C. 502, whether or not in training.  In any event, Congress
mandated that result through the 1980 amendment by specifying in the
text of Section 2024(f) that "full-time duty performed by a member of
the National Guard under section * * * 502 * * * is considered active
duty for training for purposes of Section 2024(d)." 38 U.S.C. 2024(f).

   /11/ Respondent errs in claiming (Br. 23-25) that the government
relies on after-enacted legislative history in the form of an
Explanatory Statement of Compromise Agreement, 128 Cong. Rec. 25,513
(1982), to support the position that Section 2024(d) imposes no
arbitrary durational limit.  Rather, the government adduced the
Explanatory Statement in the course of noting that the government's
position is identical to the position to which the Department of Labor
has adhered since 1970, except for the two-year period when it
followed the decision in Lee v. City of Pensacola, 634 F.2d 886 (5th
Cir. 1981).  See Gov't Br. 32-33 n.24.

   /12/ For the same reason, even if Section 2024(d) as originally
enacted did not guarantee reemployment following multi-year periods of
active duty for training, the 1980 amendment to Section 2024(f) had
the effect of extending the coverage of Section 2024(d) to AGR
personnel for the full duration of their service.  Gov't Br. 35.
Section 2024(d) states that a leave shall be granted "for the period
required to perform active duty for training." Since AGR personnel are
required to serve for three years, it follows that the 1980 amendment
to Section 2024(f), by extending the protections of Section 2024(d) to
AGR personnel "for the period required" to complete their tours, could
be construed to expand not only the scope but also the duration of
protection for service in that program.

   APPENDIX