Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, JAMES P. DAVERN, ROBERT E. FREEBURG, WILLIE R. JOHNSON, ROBERT A. MUSTIN, JOHN DOES 1 through 4, and JANE DOES 1 through 3, individually, and on behalf of all others similarly situated, Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 00-644C (Judge Firestone)

UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF ITS CROSSMOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE GOVERNMENT'S MOTION TO DISMISS

Richard T. Dorman CUNNINGHAM, BOUNDS, VANCE, CROWDER, and BROWN, LLC 1601 Dauphin Street Mobile, Alabama 36660 Tel: (334) 471-6191 Fax: (334) 479-1031 Charles J. Cooper David Thompson COOPER & KIRK, P.L.L.C. 555 11th St, N.W. Suite 750 Washington, DC 2005 Tel: (202) 220-9600 Fax: (202) 220-9601

Helen K. Michael Robert H. Shulman John F. Stanton Christina Fahmy HOWREY LLP 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Tel: (202) 783-0800 Fax: (202) 383-6610

Counsel for Plaintiffs

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 GOVERNING STANDARDS........................................................................................................ 7 ARGUMENT.................................................................................................................................. 8 I. II. THE GOVERNMENT'S JURISDICTIONAL CHALLENGE IS WITHOUT MERIT ................................................................................................................................ 8 RETROACTIVE APPLICATION OF THE 2007 NDAA AMENDMENT TO THIS CASE WOULD VIOLATE SEPARATION OF POWERS CONSTRAINTS .................. 9 A. B. III. Congress Cannot Dictate a Result in its Own Favor in Pending Litigation.......... 10 Congress Cannot Act Permissibly as a "Super-Appellate Court" ........................ 15

RETROACTIVE APPLICATION OF THE 2007 NDAA AMENDMENT WOULD VIOLATE PLAINTIFFS' FIFTH AMENDMENT RIGHTS .......................... 21 A. Retroactive Application of the 2007 NDAA Amendment Would Violate the Takings Clause of the Fifth Amendment ........................................................ 22 1. 2. B. Plaintiffs' Claims for Compensation are Protected Property Interests ..................................................................................................... 22 Retroactive Application of the 2007 NDAA Amendment Would Impermissibly Destroy Plaintiffs' Causes of Action ................................ 24

Retroactive Application of the 2007 NDAA Amendment Would Violate Plaintiffs' Due Process Rights .............................................................................. 28

IV.

ADDITIONAL CONSIDERATIONS PRECLUDE THE 2007 NDAA AMENDMENT FROM BEING APPLIED RETROACTIVELY ................................... 32 A. The Federal Savings Statute Preserves the Liabilities .......................................... 33 1. 2. B. The Savings Statute is Fully Applicable Here .......................................... 33 The 2007 NDAA Amendment Does Not Expressly Extinguish the Government's Liability............................................................................. 34

Changes in the Law Are Presumed to be Prospective .......................................... 36

CONCLUSION............................................................................................................................. 39

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TABLE OF AUTHORITIES CASES Abrahim-Youri v. United States, 139 F.3d 1462 (Fed. Cir. 1997) .....................................23, 24, 28 Addison v. Huron Stevedoring Corp., 204 F.2d 88 (2d Cir. 1953)................................................16 Adv. Cardiovascular Systems, Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157 (Fed. Cir. 1993) .......7 In re Air Crash in Bali, 684 F.2d 1301 (9th Cir. 1982) .................................................................22 Alden v. Maine, 527 U.S. 706 (1999) ............................................................................................10 Alyeska Pipeline Service Co. v. United States, 224 Ct. Cl. 240 (1980).........................................37 Alliance of Descendants v. United States, 37 F.3d 1478 (Fed. Cir. 1981) ....................................23 Allin v. Brown, 6 Vet. App. 207 (1994) .........................................................................................37 Am. Discount Corp. v. Shepherd, 120 P.3d 96 (Wash. App. 2005)......................................... 17-18 Am. Federation v. Campbell, 474 F. Supp. 357 (D. D.C. 1979), aff'd in part, rev'd in part on other grounds, 659 F.2d 157 (D.C. Cir. 1980)...................29, 30 Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003).............................................................................23 Armstrong v. United States, 364 U.S. 40 (1960) .....................................................................22, 27 Bank of Denver v. SE Capital Group, Inc., 789 F. Supp. 1092 (D. Colo. 1992).....................14, 15 Barr v. Preskitt, 389 F. Supp. 496 (M.D. Ala. 1975) ....................................................................25 Bell v. United States, 366 U.S. 393 (1961) ....................................................................................30 Bermner v. Mills, 579 S.E. 2d 159 (Va. 2003)...............................................................................38 Biodiversity Associates v. Cables, 357 F.3d 1152 (10th Cir. 2004) ..............................................16 Bowen v. Agencies Opposed to Social Sec. Entrap., 477 U.S. 41 (1986)......................................29 Bradley v. Richmond Sch. Board, 416 U.S. 696 (1974) ............................................................... 21 Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970) ...............................................................................30 In re Britchard Sec. Litigation, 788 F. Supp. 1098 (N.D. Cal. 1992)............................................12

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Carson v. Maurer, 424 A.2d 825 (N.H. 1980) ..............................................................................31 Cerro Metal Products v. Marshall, 467 F. Supp. 869 (E.D. Pa. 1979), aff'd, 620 F.2d 964 (3d Cir. 1980) .....................................................................................17, 21 Cherry v. United States, 640 F.2d 1184 (Ct. Cl. 1980)............................................................24, 30 Clark v. United States, 50 Fed. Cl. 727 (2001)........................................................................3, 4, 8 Clark v. United States, 69 Fed. Cl. 443 (2006)............................................................................3, 5 Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003) ................................................3, 4, 6, 8, 18 Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989)....................................................31 Condit v. United Air Lines, Inc., 631 F.2d 1136 (4th Cir. 1980) ...................................................38 In re Consolidated United States Atmospheric Testing Lit., 820 F.2d 982 (9th Cir. 1987)...........10 Cook v. United States, 855 F.2d 848 (Fed. Cir. 1988)...................................................................24 Covey v. Hollydale Mobilehome Estates, 125 F.3d 1281 (9th Cir. 1997) .....................................33 Craig v. Ohio Department of Admin. Services, 790 F. Supp. 758 (S.D. Ohio 1992), aff'd mem, 1 F.3d 1240 (6th Cir. 1993) .............................................................................14, 16 Crane v. Hahlo, 258 U.S. 142 (1922) ............................................................................................31 Daughters of Miriam Ctr. for the Aged v. Mathews, 590 F.2d 1250 (3d Cir. 1978) .....................29 Del Rio v. Crake, 955 P.2d 90 (Haw. 1998) ..................................................................................18 Dickinson v. Petroleum Conversion Corp., 338 U.S. 507 (1950) .................................................21 Diefernderfer v. MSPB, 194 F.3d 1275 (Fed. Cir. 1999)...............................................................36 Ducre v. Mine Safety Appliances, 573 F. Supp. 388 (E.D. La. 1983) aff'd in part, reversed in part on other grounds, 752 F.2d 976 (5th Cir. 1985) ......................24 Edwardsen v. Morton, 369 F. Supp. 1359 (D.D.C. 1973) .............................................................26 Ettor v. Tacoma, 228 U.S. 148 (1913)...........................................................................................26 FEC v. Wright, 777 F. Supp. 525 (N.D. Tex. 1991) ......................................................................35 FedEx Corp. v. Skelton, 578 S.W. 2d 1 (Ark. 19979) ...................................................................18

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Fern v. United States, 908 F.2d 955 (Fed. Cir. 1990)....................................................................28 Foley v. Carter, 526 F. Supp. 977 (D. D.C. 1981) ..................................................................29, 30 Forbes Pioneer Boat Line v. Board of Comm'rs, 258 U.S. 338 (1922) ........................................16 Fujitsu Ltd. v. Federal Ex Corp., 247 F.3d 423 (2d Cir. 2001) .....................................................33 Gibson v. Com., 415 A.2d 80 (Pa. 1980) .......................................................................................26 Gonzales v. United States, 48 Fed. Cl. 176 (2000) ........................................................................30 Gove v. United States, 24 Cl. St. 296 (1991) .................................................................................20 Greyhound Food Mgmt., Inc. v. City of Dayton, 653 F. Supp. 1207 (S.D. Ohio 1986) ......... 25, 26 Hamm v. Rock Hill, 379 U.S. 306 (1964) ................................................................................33, 34 In re Harbour Pointe Ltd. Partnership, 132 B.R. 501 (Bankr. D. D.C. 1991)..............................37 Heckler v. Committee Health Services, 467 U.S. 51 (1984)..........................................................30 Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567 (11th Cir. 1992) .........................................16 Hoffman v. City of Warwick, 909 F.2d 608 (1st Cir. 1990) .....................................................29, 30 Horne v. Firemen's Retirement System, 69 F.3d 233 (8th Cir. 1995) ...........................................25 Hughes Aircraft Co. v. United States, 86 F.3d 1566 (Fed. Cir. 1996)...........................................19 Hutton v. Autoridad Sobre Hogares De La Capital, 78 F. Supp. 988 (D. P.R. 1948)...................25 INS v. Chadha, 462 U.S. 919 (1983) .............................................................................................10 Jacklitch v. Redstone Federal Credit Union, 463 F. Supp. 1134 (N.D. Ala. 1979) ................24, 26 Jamesbury Corp. v. Litton Industrial Products, Inc., 839 F.2d 1544 (Fed. Cir. 1988) .................18 John R. Sand & Gravel Co. v. United States, 457 F.3d 1345 (Fed. Cir. 2006) ...............................9 Johnston v. CIGNA Corp., 789 F. Supp. 1098 (D. Colo. 1992) ....................................................14 Kaiser Alum. & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045 (5th Cir. 1982) ....7 Karadanis v. Bond, 993 P.2d 721 (Nev. 2000)..............................................................................18

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Keener v. WMATA, 800 F.2d 1173 (D.C. Cir. 1986).....................................................................35 Kelley v. United States, 792 F. Supp. 793 (M.D. Fla. 1992) .........................................................25 Kinne v. United States, 21 Cl. Ct. 104 (1990_...............................................................................14 Korshin v. C.I.R., 91 F.3d 670 (4th Cir. 1996) ........................................................................34, 35 Landgraf v. USI Film Products, 511 U.S. 244 (1994).......................................................36, 37, 38 Larionoff v. United States, 533 F.2d 1167 (D.C. Cir. 1976), aff'd, 431 U.S. 864 (1977) .............30 Lindh v. Murphy, 521 U.S., 320 (1997) .........................................................................................38 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).................................................23 Lynch v. United States, 292 U.S. 571 (1934)...........................................................................12, 29 Martin v. Hadix, 527 U.S. 343 (1999) ...........................................................................................38 McBride v. GM Corp., 737 F. Supp. 1563 (M.D. Ga. 1990) .........................................................31 Mistretta v. United States, 488 U.S. 361 (1989)..............................................................................9 Muir v. Louisville & N. R. Co., 247 F. 888 (W.D. Ky. 1918)........................................................26 Murray v. United States, 817 F.2d 1580 (Fed. Cir. 1987) .........................................................9, 22 NLRB v. Nat. Garment Co., 166 F.2d 233 (8th Cir. 1948) ............................................................34 In re Naramore, 3 B.R. 709 (N.D.N.Y. 1980)...............................................................................35 Nat. Cable Television Assoc'n v. Am. Cinema Editors, Inc., 937 F.2d 1572 (Fed. Cir. 1991)........8 Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992) ......................................................... 23-24 Northern Helex Co. v. United States, 634 F.2d 557 (Ct. Cl. 1980) ...............................................18 Ogden v. Blackledge, 6 U.S. (2 Cranch) 272 (1802) .....................................................................16 Opdyke Investment Co. v. Detroit, 883 F.2d 1265 (6th Cir. 1989)................................................25 Palmer v. United States, 168 F.3d 1310 (Fed. Cir. 1999)................................................................9 Pappas v. City of Lebanon, 331 F. Supp.2d 311 (M.D. Pa. 2004) ................................................23

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Patlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985)................................................... 26-27 Patterson v. McLean Credit Union, 784 F. Supp. 268 (M.D.N.C. 1992)......................................31 Penn Central Transport Co. v. New York City, 438 U.S. 104 (1978)............................................27 Peony Park, Inc. v. O'Malley, 121 F. Supp. 690 (D. Neb. 1954), aff'd, 223 F.2d 668 (8th Cir. 1955)..............................................................................16, 17, 38 People v. Cuevas, 168 Cal. Rptr. 519 (Cal. App. 1980) ................................................................18 People v. Harris, 387 N.E.2d 33 (Ill. App. 1979)..........................................................................18 Perry v. United States, 294 U.S. 330 (1935) .................................................................................12 Personal Finance Co. v. United States, 86 F. Supp. 779 (D. Del. 1949) ......................................14 Phelps Dodge Corp. v. Rev. Div. of Dep't of Tax. & Rev., 702 P.2d 10........................................18 Phonometrics, Inc. v. Hospitality Franchise System, 203 F.3d 790 (Fed. Cir. 2000) .....................7 Plaut v. Spendthrift Farm, 514 U.S. 211 (1995)................................................................ 16, 20-21 Porto Rico Brokerage Co. v. United States, 80 F.2d 521 (C.C.P.A. 1936) ...................................13 Prescott v. United States, 523 F. Supp. 918 (D. Nev. 1981) .........................................................25 Princess Cruises, Inc. v. United States, 397 F.3d 1358 (Fed. Cir. 2005) ......................................36 In re Prior, 176 B.R. 485 (Bankr. S.D. Ill. 1995)..........................................................................16 Resolution Trust Corp. v. Seale, 13 F.3d 850 (5th Cir. 1994) .......................................................37 Ritholz v. March, 105 F.2d 937 (D.C. Cir. 1939) ..........................................................................31 Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) .................................................................38 Roberts v. Dean Witter Reynolds, 2003 U.S. Dist. LEXIS 5676 (M.D. Fla. Mar. 14, 2003) ........37 In re Rospatch Sec. Litigation, 802 F. Supp. 110 (W.D. Mich. 1992) ..........................................14 Roxco, Ltd. v. United States, 60 Fed. Cl. 39 (2004).........................................................................7 Schiavo v. Schiavo, 404 F.3d 1270 (11th Cir. 2005) .....................................................................12 In re Shear, 139 F. Supp. 217 (N.D. Cal. 1956) ............................................................................13

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Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) ....................................................................21 Shelden v. United States, 7 F.3d 1022 (Fed. Cir. 1993).................................................................25 Smith International v. Hughes Tool, Inc., 759 F.2d 1572 (Fed. Cir. 1985)...................................20 Smith v. Travis Co. Ed. District, 791 F. Supp. 1170 (W.D. Tex.), vacated on other grounds, 968 F.2d 453 (5th Cir. 1992) ........................................................25 State v. Fell, 97 P.3d 902 (Ariz. App. 2004) .................................................................................18 State v. Great W. Railway, 25 N.W.2d 294 (Minn. 1946) .............................................................37 Suel v. Sec. of HHS, 192 F.3d 981 (Fed. Cir. 1999) ............................................................... 19, 20 Taylor v. Ariz., 972 F. Supp. 1239 (D. Ariz. 1997), aff'd en banc, 181 F.3d 1017 (9th Cir. 1999) .................................................................... 20-21 Toro Co. v. White Consolidated Industrial, Inc., 383 F.3d 1326 (Fed. Cir. 2004)........................19 Ulmet v. United States, 17 Cl. Ct. 679, 691 (1989), overruled on other grounds, Wilson v. United States, 917 F.2d 529 (Fed. Cir. 1990), aff'd, Ulmet v. United States, 935 F.2d 280 (table) (Fed. Cir. 1991)............................... passim United States v. Board of Ed. of Chicago, 588 F. Supp. 132 (N.D. Ill.), vacated on other grounds, 744 F.2d 1300 (7th Cir. 1984) ................................................14, 17 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) ..................................................................11 United States v. O'Neal, 1988 U.S. Dist. LEXIS 14369 (N.D. Ill. Oct.31, 1988).........................35 United States v. Schuler, 47 M.J. 561 (1997) ................................................................................33 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)............................................... 11-12 United States v. Smith & Nephew Richards, 1997 U.S. Dist. LEXIS 22939 (W.D. Tex. Mar. 7, 1997) .......................................................35 United States v. Sperry, 493 U.S. 52 (1989)..................................................................................28 United States v. Van Den Berg, 5 F.3d 439 (9th Cir. 1993) ..........................................................34 United States v. Winstar Corp., 518 U.S. 839 (1996)....................................................................12 Unwired Telecom v. Parish of Calcasieu, 903 So.2d 392 (La. 2005) ...........................................18

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Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ..............................................................28 Valdez v. Schweiker, 575 F. Supp. 1203 (D. Col. 1983)..........................................................10, 21 Waggoner v. Gibson, 647 F. Supp. 1102 (N.D. Tex. 1986) ..........................................................31 Warden v. Marrerro, 417 U.S. 653 (1974) ....................................................................................33 Whalen v. Office of Personnel Management, 959 F.2d 924 (Fed. Cir. 1992)................................34 Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed. Cir. 1991) ......................................23 Widdis v. United States, 395 F. Supp. 1015 (D. Alaska 1974) ......................................................36 Williams v. United States, 264 F.3d 1089 (Fed. Cir. 2001) .......................................................9, 21 Wilson v. United States, 917 F.2d 529 (Fed. Cir. 1990) ................................................................36 Wood v. Witco Corp., 1995 U.S. Dist. LEXIS 10614 (E.D. La. July 25, 1995)............................16 Xiangyuan Zhu v. Federal Housing Finance Board, 389 F. Supp.2d 1253 (D. Kan. 2005) ........37 Yankee Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed. Cir. 1997) .............................22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ...................................................10

CONSTITUTIONAL PROVISIONS AND STATUTES 1 U.S.C. § 109 .........................................................................................................................32, 33 37 U.S.C. § 206 (1994) .......................................................................................................... passim 109 Pub. L. 163, 119 Stat. 3136 (Jan. 6, 2006)................................................................................6 109 Pub. L. No. 364, 120 Stat. 2083 (2006) ....................................................................................6 U.S. Const. Amend. V ........................................................................................................... passim

LEGAL ENCYCLOPEDIAS, RESTATEMENTS & HORNBOOKS 1 AM. JUR.2D Actions § 10.............................................................................................................24 Singer, 1A SUTHERLAND STAT. CONSTRUCTION § 27.04 (4th Ed. 1985) ......................................15

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Tribe, AMERICAN CONSTITUTIONAL LAW (1978) ..........................................................................14 13 Wright, Miller & Cooper, FEDERAL PRACTICE & PROCEDURE, Jurisdiction and Related Matters § 3529.1 (1984) ..........................................................................................................15

LAW REVIEW ARTICLES Comment, Good Guns (And Good Business Practices) Provide all the Protection They Need: Why Legislation to Immunize the Gun Industry from Civil Liability is Unconstitutional, 72 U. CIN. L. REV. 1739 (2004) ...............................................................................................31 Fletcher, Atomic Bowl Testing and the Warner Amendment: A Violation of the Separation of Powers, 65 WASH. L. REV. 285 (1990)..............................................................................11, 12 Note, Constitutional Fallout from the Warner Amendment, Annihilating the Rights of Atomic Weapons Testing Victims, 62 N.Y.U.L. REV. 1331 (1987)......................................................25 Note, Section 2212: A Remedy for Veterans-With a Catch, 75 CAL. L. REV. 1513 (1987)... passim Note, The Fairness and Constitutionality of Statutes of Limitation for Toxic Tort Suits, 96 HARV. L. REV. 1683 (1983) ................................................................................................31 Ruud, The Savings Clause--Some Problems in Construction and Drafting, 33 TEX. L. REV. 285 (1955) .....................................................................................................35 Young, Congressional Regulation of Federal Courts' Jurisdiction and Process: United States v. Klein Revisited, 1981 WISC. L. REV. 1189 (1981) ...............................................................10

OTHER AUTHORITIES H. Rep. No. 109-452 (2006) ..........................................................................................................13 H. Rep. No. 109-702 (2006) ..........................................................................................................13 S. Rep. No. 109-254 (2006) ...........................................................................................................13

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INTRODUCTION Disregarding the judicial rulings denying relief on its two earlier dispositive motions, the government seeks once again in its present motion to dismiss to avoid the obligations that already have been definitively established by the Federal Circuit to compensate Plaintiffs for completing required correspondence coursework. The government now relies primarily on a statutory amendment that was part of the 2007 National Defense Authorization Act (the "2007 NDAA Amendment"), and argues that 37 U.S.C. § 206 no longer authorizes payment for such required correspondence coursework, notwithstanding the Federal Circuit's ruling, which the government did not challenge in the Supreme Court, that the pay statute in effect at the time that Plaintiffs performed this work obligated the government to provide such payment. The government's motion is premised on the unsupportable defense that the 2007 NDAA Amendment serves as a bar to liability under § 206 as if the Federal Circuit had never issued its binding decision. This defense fails as a matter of law because bedrock constitutional safeguards, as well as other principles, preclude the 2007 NDAA Amendment from being retroactively applied in this fashion. Retroactive application of the Amendment would, among others, violate essential separation of powers constraints securing the country's system of limited government. These principles forbid Congress from passing legislation that effectively dictates a result in a pending case in its own favor. These constraints also forbid Congress from usurping an inherently judicial function (namely, statutory interpretation) when it disagrees with the way that the courts have interpreted the statute. It is a core principle of this country's scheme of checks and balances that Congress cannot act as a "super-appellate" court. 1

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Applying the 2007 NDAA Amendment retroactively also would effect a taking prohibited by the Fifth Amendment. If the Amendment were applied retroactively, then Plaintiffs' property (namely, their claims for compensation under the pay statute construed by the Federal Circuit) would be eliminated. Because the government has not even offered to provide compensation for extinguishing Plaintiffs' claims, the government has committed an unlawful "taking" proscribed by the Fifth Amendment. Retroactive application of the 2007 NDAA Amendment would, for similar reasons, violate Plaintiffs' rights under the Fifth Amendment to due process. The government's argument that a desire by Congress to avoid preexisting obligations constitutes a "rational purpose" justifying retroactive application of the amended pay statute cannot be reconciled with Supreme Court precedent. Moreover, due process protections would, in all events, preclude retroactive application of the 2007 NDAA Amendment because that result would be manifestly unjust to Plaintiffs here. In addition to these constitutional prohibitions on retroactive application of the 2007 NDAA Amendment, the federal savings statute serves to preserve the government's preexisting liabilities to Plaintiffs under the pay statute because the Amendment does not expressly extinguish these liabilities. Moreover, the amendments themselves do not satisfy the high burdens imposed by the Supreme Court for retroactive application. Each of these considerations dictates denial of the government's motion to dismiss. Because the 2007 NDAA Amendment cannot be retroactively applied to eliminate Plaintiffs' entitlement to compensation for required correspondence coursework, Plaintiffs also are entitled to partial summary judgment on the government's affirmative defense based on the 2007 NDAA Amendment.

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BACKGROUND The factual and procedural background of this case has been recounted in significant past opinions from Chief Judge Damich, and from the Federal Circuit. See Clark v. United States, 322 F.3d 1358, 1361-62 (Fed. Cir. 2003); Clark v. United States, 69 Fed. Cl. 443, 444-45 (2006); Clark v. United States, 50 Fed. Cl. 727, 728-29 (2001). To briefly recap for present purposes, Plaintiff William A. Clark filed the instant suit on November 1, 2000, seeking compensation for completion of required correspondence coursework performed as a member of the Army National Guard. Mr. Clark alleged that he was required to complete correspondence coursework to advance in and maintain rank, but was never compensated for completion of the courses as required by 37 U.S.C. § 206(a)(2). 1 On February 6, 2001, the government filed its first dispositive motion seeking to dismiss Mr. Clark's Complaint. The government challenged the existence of subject matter jurisdiction and whether the complaint stated a claim upon which relief could be
1

This subsection, which has not been amended since the instant suit was filed, provides: (a) Under regulations prescribed by the Secretary concerned, and to the extent provided for by appropriations, a member of the National Guard or a member of a reserve component of a uniformed service who is not entitled to basic pay under section 204 of this title, is entitled to compensation, at the rate of 1/30 of the basic pay authorized for a member of a uniformed service of a corresponding grade entitled to basic pay-- (1) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least two hours, including that performed on a Sunday or holiday; (2) for the performance of such other equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe; or . . . .

37 U.S.C. § 206(a)(2) (1994). 3

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granted, asserting that § 206(d) barred Mr. Clark, as a member of the National Guard, from receiving compensation for completion of required coursework. See Doc. No. 14 at 6, 13. Judge Damich rejected the government's jurisdictional challenge, but granted the motion to dismiss for failure to state a claim, holding that § 206(d) barred Mr. Clark's claim for compensation. Clark v. United States, 50 Fed. Cl. 727 (2001). 2 On March 18, 2003, the Federal Circuit upheld Judge Damich's jurisdictional ruling but reversed his dismissal of the complaint. See Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003). As had Judge Damich, the Federal Circuit ruled that § 206(a) was a money-mandating statute, and that the government's contrary contention "confuse[d]" the separate analyses for determining subject matter jurisdiction and the viability of a given claim on its merits. See id. at 1363. On the latter merits question, the Federal Circuit held that Judge Damich erred because the § 206(d) exclusion on compensation for correspondence coursework applied only to members of a Reserve component, and Mr. Clark completed his courses in his status as a member of the Alabama National Guard. Id. at 1364-1369. The Federal Circuit also ruled that the plain terms of § 206(a)(2) "require[d]" National Guard members to be paid "for equivalent training that the secretary prescribes," including required correspondence coursework. Id. at 1368. The Federal Circuit remanded the case to resolve the single liability issue of which, if any, required correspondence courses Mr. Clark completed, and the damages issue of "the amount of compensation he is due under the statute." Id.
2

At the time this action was filed, § 206(d) provided: (d) This section does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force.

37 U.S.C. § 206(d) (1994). 4

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On August 15, 2003, the Federal Circuit summarily denied the government's petition for rehearing and rehearing en banc. The government did not seek review by the Supreme Court. Upon remand, the government declined to comply with the Federal Circuit's decision that § 206(a)(2) mandates compensation to National Guard members completing required correspondence courses. Instead, the government filed a summary judgment motion on April 30, 2004, arguing that correspondence courses did not qualify as compensable coursework under § 206(a), and, therefore, that Mr. Clark and other Army and Air National Guard members who had joined the suit as named plaintiffs (collectively, "Plaintiffs") were not entitled to compensation. See Doc. No. 60 at 20-27. Also contrary to the Federal Circuit's decision, the government insisted that Mr. Clark had completed courses in his status as a member of the Alabama National Guard, and not as a member of the National Guard of United States. Id. at 33. On January 25, 2006, Judge Damich denied the government's summary judgment motion. Clark v. United States, 69 Fed. Cl. 443 (2006). In his decision, Judge Damich expressly reaffirmed that Plaintiffs completed their courses in their capacities as state National Guard members, that the § 206(d) bar accordingly did not apply, and that § 206(a), therefore, mandated compensation for required correspondence coursework completed by National Guard members. Id. at 445-49. Judge Damich directed that the parties proceed with discovery regarding: (1) which correspondence courses were, in fact, required; and (2) which required courses the Plaintiffs had taken. Id. at 449. On April 17, 2006, Judge Damich transferred this case to this Court. On May 15, 2006, this Court set a schedule that would permit Plaintiffs to take discovery to establish

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which of their completed courses were required, prior to further dispositive motion practice or trial. On September 29, 2006, before document discovery was completed or any deposition discovery was taken, Congress enacted the 2007 NDAA Amendment, which added the following paragraph to 37 U.S.C. § 206(d): (3) The prohibition in paragraph (1), including the prohibition as it relates to a member of the National Guard while not in Federal service, applies to-(A) any work or study performed on or after September 7, 1962, unless that work or study is specifically covered by the exception in paragraph (2); and (B) any claim based on that work or study arising after that date. PUB. L. NO. 109-364, 607, 120 STAT. 2083 (2006). The 2007 NDAA Amendment is the third amendment to § 206 since the filing of the instant case. In 2002, Congress amended § 206 to convert it from imposing a mandatory obligation to provide compensation for required correspondence coursework into conferring a discretionary one. The Federal Circuit concluded in its 2003 opinion that this amendment applied only prospectively and served only to moot Plaintiff's claim for injunctive relief "prohibiting the government from refusing to pay for further correspondence courses taken by National Guard members." Clark, 322 F.3d at 1362 n.1. In 2006, Congress amended the 2002 Amendment to make plain that the new prohibition against compensation for correspondence coursework for National Guard contained in that Amendment applied to members of the Reserve components. See 109 PUB. L. 163, 119 STAT. 3136 (Jan. 6, 2006). This 2006 amendment to the 2002 amendment has no retroactive application to this litigation, and does not serve as an indicator of prior legislative intent.

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On December 5, 2006, Plaintiffs filed a Second Amended Complaint. Doc. No. 140. Plaintiffs' Second Amended Complaint reiterated their claim for compensation pursuant to the pay statute, and also alleged that the 2007 NDAA Amendment cannot be retroactively applied to this lawsuit. The government filed its instant motion to dismiss on January 5, 2007. Doc. No. 141. This motion again challenges this Court's jurisdiction, notwithstanding the prior rulings of the Federal Circuit and Judge Damich that § 206(a) is a money-mandating statute. Relying primarily on the 2007 NDAA Amendment, the government also asserts that Plaintiffs have failed to state a claim upon which relief can be granted. GOVERNING STANDARDS Settled standards govern resolution of the government's motion to dismiss and, Plaintiffs' cross-motion for partial summary judgment on the affirmative defense advanced in the government's motion. Motions to dismiss for failure to state a claim are "viewed with disfavor and [are] rarely granted." Kaiser Alum. & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE Civil § 1357 at 598 (1969)); Phonometrics, Inc. v. Hospitality Franchise Sys., 203 F.3d 790, 794 (Fed. Cir. 2000) (same). Moreover, all inferences must be drawn in favor of the Plaintiffs. See Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988 F.2d 1157, 1160 (Fed. Cir. 1993). With regard to the cross-motion, Plaintiffs may move for relief on anticipated defenses, such as those asserted in the government's present motion to dismiss, before such defenses have been asserted in an answer to a complaint. See, e.g., Roxco, Ltd. v. United States, 60 Fed. Cl. 39, 47 (2004). Summary judgment is proper when the movant

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has established that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. See Nat'l Cable Television Ass'n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1576 (Fed. Cir. 1991). Application of these standards here necessitates denial of the government's motion and the granting of partial summary judgment to Plaintiffs. As discussed further below, the government's affirmative defense based on the 2007 NDAA Amendment fails as a matter of law because the Amendment cannot be retroactively applied to extinguish the right to compensation for required correspondence coursework that already has been definitely established to exist by the Federal Circuit.

ARGUMENT I. THE GOVERNMENT'S JURISDICTIONAL CHALLENGE IS WITHOUT MERIT The government's jurisdictional challenge (Br. 10-12) is emblematic of its steadfast refusal to abide by the judicial decisions controlling resolution of this case. Both the Federal Circuit and Judge Damich already have unequivocally rejected the contention, again advanced by the government in its present motion to dismiss, that jurisdiction is lacking because § 206(d) ostensibly bars Plaintiffs' right to compensation. As the Federal Circuit directed, § 206(a) is a money-mandating statute and the government's position regarding the claimed scope of the § 206(d) exclusion "confuses the issue of jurisdiction with the question of whether Mr. Clark can prevail on the merits" of his claim for payment for required correspondence coursework. Clark, 322 F.3d at 1363; see also Clark, 50 Fed. Cl. at 729 (essentially same). The government's present

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assertion that the version of the § 206(d) exclusion adopted in the 2007 NDAA Amendment precludes subject matter jurisdiction rests on the same erroneous confusion. As the Federal Circuit already has directed, the scope of the § 206(d) exclusion (whether as found in the 2007 NDAA Amendment or in the form existing when this case was filed) is irrelevant to jurisdiction, and only relates to the merits of Plaintiffs' claims. See also Palmer v. United States, 168 F.3d 1310, 1312-13 (Fed. Cir. 1999) (further criticizing the government for conflating jurisdiction with merits of claim). The government's jurisdictional challenge also has no merit because the takings claims asserted in Plaintiffs' Second Amended Complaint, which are discussed infra at 21-28, provide a second basis for subject matter jurisdiction. As the Federal Circuit has repeatedly ruled, "[t]he Tucker Act . . . provides the Court of Federal Claims with jurisdiction over takings claims brought against the United States." John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1534 (Fed. Cir. 2006); see also Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (essentially same). II. RETROACTIVE APPLICATION OF THE 2007 NDAA AMENDMENT TO THIS CASE WOULD VIOLATE SEPARATION OF POWERS CONSTRAINTS The government's motion fails even meaningfully to address the separation of powers constraints precluding the 2007 NDAA Amendment from being construed to override the Federal Circuit's ruling that § 206(a) entitles National Guard members to payment for completing required correspondence courses. These constraints are essential to this country's system of limited government, and serve to safeguard the judiciary's role as a check and balance on the improper exercise of executive and legislative power. See Mistretta v. United States, 488 U.S. 361, 380 (1989); Williams v. United States, 264 F.3d 1089, 1093 (Fed. Cir. 2001) ("It is the right, privilege, and duty of the courts to assure 9

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that the constitutional safeguards are preserved. No safeguard is more fundamental than the separation of governmental power, the checks and balances, among the three branches") (Newman, J., dissenting from denial of rehearing en banc); accord Valdez v. Schweiker, 575 F. Supp. 1203, 1206 (D. Col. 1983) ("The doctrine of separation of powers clearly contemplates a zone of judicial power which must be free from interference by either the Legislative or Executive branches") (quotation omitted). 3 As shown below, the government's interpretation of the 2007 NDAA Amendment violates separation of powers principles recognized since the early days of this Nation for at least two reasons. First, that interpretation would effectively dictate a result in pending litigation in the government's favor. Second, it would require the overruling of the Federal Circuit's binding decision that § 206(a)(2) entitles National Guard members to compensation for completing required correspondence courses. A. Congress Cannot Dictate a Result in its Own Favor in Pending Litigation

"Congress has vast power but not all power." Alden v. Maine, 527 U.S. 706, 758 (1999). In particular, "Congressional attempts to alter the rule of decision in pending cases in favor of the government have been condemned as a violation of Article III." In re Consolidated United States Atmospheric Testing Litig., 820 F.2d 982, 992 (9th Cir. 1987); Young, Congressional Regulation of Federal Courts' Jurisdiction and Process: United States v. Klein Revisited, 1981 WISC. L. REV. 1189, 1244-49 (1981) (explaining

Separation of powers principles are even more essential to preserve the country's system of checks and balances during wartime. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J., concurring); accord INS v. Chadha, 462 U.S. 919, 951 (1983) ("[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted"). 10

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resulting harms when Congress re-writes law in pending case to favor itself). This is exactly what the 2007 NDAA Amendment attempts to accomplish. In the seminal case United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the Supreme Court held that Congress had unconstitutionally violated separation of powers constraints by passing a law requiring a decision favorable to the Government in a pending case. The claimant in this case had sued the United States in the Court of Claims to recover proceeds from the sale of property confiscated during the Civil War, relying on a law entitling a property owner to compensation if he demonstrated that he had never aided the Confederacy and was loyal to the United States, including by showing that he had received a Presidential pardon. Id. at 138-39, 142-43. While the claim was pending, Congress passed a law rendering a Presidential pardon inadmissible as evidence of loyalty in any case, and requiring the Supreme Court to dismiss any appeal from the Court of Claims in such a case for want of jurisdiction. Id. at 143-44. In finding the statute unconstitutional on separation of powers grounds, the Supreme Court directed that Congress cannot permissibly enact legislation dictating the outcome in pending cases, and that, in purporting to "prescribe a rule for decision" in the case at issue, Congress had "passed the limit which separates the legislative from the judicial power." Id. at 146-47. As explained by then Professor (now Ninth Circuit Judge) Fletcher, "[t]he Klein Court explicitly concluded that in passing a statute effectively dictating the outcome of the pending case in its favor, Congress had overstepped its authority and had improperly intruded into the authority of the judiciary." Fletcher, Atomic Bowl Testing and the Warner Amendment: A Violation of the Separation of Powers, 65 WASH. L. REV. 285, 316-17 (1990) (citations omitted).

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The constraints recognized in Klein continue to serve as vital safeguards of judicial independence today. See, e.g., United States v. Sioux Nation of Indians, 448 U.S. 371, 404 (1980) (statute unconstitutional when "it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor"); Schiavo v. Schiavo, 404 F.3d 1270, 1274 & n.4 (11th Cir. 2005) (Birch, J. specially concurring) (Congress cannot dictate a "rule of decision" directed at a single case); In re Britchard Sec. Litig., 788 F. Supp. 1098, 110506 (N.D. Cal. 1992) (separation of powers limitations violated when Congress' motive was solely to affect outcome of pending litigation). In other contexts, the Supreme Court has repeatedly condemned Congressional attempts to change rules for the purpose of avoiding payment obligations. See, e.g., United States v. Winstar Corp., 518 U.S. 839, 891 (1996) (invalidating federal legislation that undid certain agreements entered into between federal regulators and banks that eventually became burdensome to regulators); Perry v. United States, 294 U.S. 330, 350-51 (1935) (noting a "clear distinction" between Congress' right to control contracts of private parties, and "the power of the Congress to alter or repudiate the substance of its own engagements") (emphasis added); Lynch v. United States, 292 U.S. 571, 579-80 (1934) (statute repealing War Risk Insurance Act that would have nullified government-issued insurance policy was unconstitutional). Retroactive application of the 2007 NDAA Amendment would violate these constraints by prescribing a rule of decision to be utilized in the instant lawsuit that would result in a judgment for the government. As Judge Fletcher put it, when Congress has acted in such a manner, then the constitutional violation is "obvious." Fletcher, Atomic Bowl Testing and the Warner Amendment, 65 WASH. L. REV. at 317.

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The government repeatedly insists that the 2007 NDAA Amendment was a "clarification" of § 206, and cites a Senate Report 4 as supporting its view: The committee believes that judicial rulings interpreting section 206(d) to permit compensation for completion of correspondence courses misinterpreted this provision . . . . The changes to 206(d) of title 37, United States Code, incorporated in section 604 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163) did not, in the committee's view change, but rather clarified the meaning and purpose of this section. S. REP. NO. 109-254, at 331-32 (2006) (emphases added). If the government is correct that the 2007 NDAA Amendment is an interpretive statute that does not change § 206, then a separation of powers violation plainly would have been committed. As the Federal Circuit's predecessor court once observed, "Congress does not have the power to declare what the law has been, but rather what it shall be." Porto Rico Brokerage Co. v. United States, 80 F.2d 521, 522-24 (C.C.P.A. 1936) (emphasis added). As another federal court similarly explained: "The power to declare what the law shall be belongs to the legislative branch of the government; the power to declare what the law is, or has been, belongs to the judicial branch of the government. Neither of these branches of the government may invade the province of the other." In re Shear, 139 F. Supp. 217, 220 (N.D. Cal. 1956) (citations omitted). As yet another concluded, there has been "no dissent" from the principle that "a subsequent statute is ineffectual as furnishing a construction or interpretation of a prior statute after the prior statute has become the

4

The government neglects to mention that it was the House version, and not the Senate version of the 2007 NDAA Amendment that was ultimately enacted. Neither the House Report on the House bill, nor the conference report for the final bill contains any reference to Clark or any prior judicial opinions. See H. REP. 109-452 (2006); see also H. REP. 109-702 (2006). 13

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basis of pending litigation." Personal Fin. Co. v. United States, 86 F. Supp. 779, 784-85 (D. Del. 1949). 5 These principles continue to serve as vital checks on the exercise of legislative and executive power today. Courts repeatedly have held that, when a statutory amendment does not change an underlying law but still purports to apply retroactively in pending litigation, Congress is in effect directing the court to reach a result in violation of separation of powers constraints. See, e.g., In re Rospatch Sec. Litig., 802 F. Supp. 110, 114 (W.D. Mich. 1992) (statute that did not change underlying law, but rather effectively dictated result in case infringed separation of powers constraints); Johnston v. CIGNA Corp., 789 F. Supp. 1098, 1102 (D. Colo. 1992) (essentially same); accord United States v. Bd. of Ed. of Chicago, 588 F. Supp. 132, 234 (N.D. Ill.) ("If Congress does not purport to alter the governing procedural and substantive law, Congress cannot force its interpretation of that law upon the federal courts in particular cases") (citing Tribe, AMERICAN CONSTITUTIONAL LAW §§ 3-5, at 39 (1978)), vacated on other grounds, 744 F.2d 1300 (7th Cir. 1984).

These precepts necessarily follow from the long-settled principle that the constitutional power to construe statutes resides in the judiciary. See, e.g., Kinne v. United States, 21 Cl. Ct. 104, 110 (1990) (Rader, J.) ("The Constitution and laws of the United States charge the courts with the responsibility to discern the meaning of the law. In the oftquoted words of Chief Justice John Marshall, `it is emphatically the province and duty of the judicial department to say what the law is"); Craig v. Ohio Dep't of Admin. Servs., 790 F. Supp. 758, 771 (S.D. Ohio 1992) ("Congress is empowered to create new law in response to whatever exigencies render legislative action necessary. No principle of constitutional construction empowers Congress to rewrite judicial decisions"), aff'd mem, 1 F.3d 1240 (6th Cir. 1993); Bank of Denver v. SE Capital Group, Inc., 789 F. Supp. 1092, 1097 (D. Colo. 1992) (similar sentiments). 14

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Consistent with these decisions, the leading treatise on statutory construction makes clear that the government's interpretation of the 2007 NDAA Amendment contravenes separation of powers principles. As expressed by Professor Singer: The usual purpose of a special interpretive statute is to correct a judicial interpretation of a prior law which the legislature considers inaccurate. Where such statutes are given any effect, the effect is prospective only. Any other result would make the legislature a court of last resort... Singer, 1A SUTHERLAND STAT. CONSTRUCTION § 27.04 (4th ed.1985) (emphasis added). 6 It makes no difference that the 2007 NDAA Amendment does not specifically instruct the court to dismiss the instant lawsuit. See, e.g., Bank of Denver, 789 F. Supp. at 1097 (rejecting similar argument); accord Note, Section 2212: A Remedy for Veterans--With a Catch, 75 CAL. L. REV. 1513, 1529 (1987) ("If the rule of Klein is to have any vitality, it much reach substance and not be deflected by form"). The key inquiry is whether the "the prescribed interpretation [of the new legislation is] at odds with prior" court decisions, and whether "the prescribed interpretation resolved a question dispositive of the action." Bank of Denver, 789 F. Supp. at 1097. Under the government's reading, the 2007 NDAA Amendment has precisely this impermissible effect. See Br. 23 (arguing that, because "Congress" now has "expressly prescribed the statute's proper reach, no further inquiry is required"). B. Congress Cannot Act Permissibly as a "Super-Appellate Court"

Since the early days of this Republic, the Supreme Court has held that, once a judicial decision establishes a right under a statute, the legislature is barred by the The leading treatise on federal practice also comments on the pernicious consequences of a contrary rule, observing correctly that if Congress could suspend judicial opinions at its pleasure without changing the underlying law, then federal courts would effectively be rate relegated to issuing advisory opinions. 13 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE & PROCEDURE, Jurisdiction and Related Matters¸ § 3529.1 at 302, 306-07 (1984). 15
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separation of powers doctrine from retroactively rewriting that decision. See, e.g., Ogden v. Blackledge, 6 U.S. (2 Cranch) 272, 277 (1802) (legislature may not retroactively overturn judicial decision); accord Forbes Pioneer Boat Line v. Bd. of Comm'rs, 258 U.S. 338, 340 (1922) (legislature may not retroactivity invalidate litigant's favorable judgment by enacting clarifying legislation). This bedrock constitutional principle also continues to apply today. See, e.g., Plaut v. Spendthrift Farm, 514 U.S. 211, 240 (1995) (Congress may not interfere with final judgments of courts). Numerous contemporary decisions establish that separation of powers constraints preclude other branches from serving as a "court of last resort" by retroactively overruling a binding judicial decision in a pending case. 7 Thus, the judiciary has continually rejected attempts by the legislative and executive branches to overrule

See, e.g., Biodiversity Assocs. v. Cables, 357 F.3d 1152, 1167 (10th Cir. 2004) (Congress cannot constitutionally act as "a court of last resort to which one could appeal any `final' decision of the Judiciary"); Wood v. Witco Corp., 1995 U.S. Dist. LEXIS 10614, at *6 (E.D. La. July 25, 1995) ("The Court . . . is bound by Louisiana law as it existed at the time the petition was filed, not by the possibility that Billiot would be retroactively overruled in the 1995 legislative session"); In re Prior, 176 B.R. 485, 494 (Bankr. S.D. Ill. 1995) ("The present case is not an instance in which there has been a definitive interpretation of a statute based on express statutory language only to have the legislature correct such judicial interpretation by amendment. [cit.] An amendment to change the law under such circumstances would, if applied retroactively, constitute an invasion by the legislature of the constitutional province of the judiciary to determine what the law is and apply statutes to cases"); Bank of Denver, 789 F. Supp. at 1097 (Congress cannot act as a "super-appellate court"); Craig, 790 F. Supp. at 771 (essentially same; quotation omitted); Peony Park, Inc. v. O'Malley, 121 F. Supp. 690, 694 (D. Neb. 1954) ("[A] judicial decision may not ordinarily be overruled by legislative fiat. If it were otherwise Congress would sit as a court of last resort and the separation of powers would be more fictional than real"), aff'd, 223 F.2d 668 (8th Cir. 1955); accord Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1575-76 (11th Cir. 1992) (Wellford, J., dissenting) ("I would find the congressional enactment in controversy, designed to affect pending litigation and to overrule Supreme Court decisions, to be unconstitutional"); Addison v. Huron Stevedoring Corp., 204 F.2d 88, 104-05 (2d Cir. 1953) (Frank, J., concurring in part, and dissenting in part) (Congress may not sit as a court of last resort when it is unhappy with judicial interpretations of law). 16

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judicial decisions by dictating after-the-fact a particular interpretation of a disputed statute or regulation. Cerro Metal Prods v. Marshall, 467 F. Supp. 869, 876-79 (E.D. Pa. 1979), aff'd, 620 F.2d 964 (3d Cir. 1980), is instructive. In that case, the Secretary of Labor chose not to appeal the ruling of an unfavorable district court decision interpreting an OSHA statute, and instead issued a regulation that effectively overruled both that decision, and the Supreme Court decision upon which the district court's decision was based. The court held that the doctrine of "the separation of powers bars a federal court from giving operational weight to a pronouncement by Congress or by an executive official vested by Congress with quasi-legislative rule-making authority that what had theretofore been judicially declared as law shall be deemed never to have had effect." Id. at 878 (quotation omitted). There is no difference between what the Secretary of Labor did in Cerro Metal, and what the government claims Congress did here. In Board of Education of Chicago, 588 F. Supp. at 233-37, another case involving facts similar to those in the instant case, the court held that retroactive application of an amendment through an appropriations bill that would have effectively overruled an unappealed judicial decision would violate separation of powers limitations. Peony Park also found a separation of powers violation on similar facts. There, the court refused to apply amendments to the tax code that purported to retroactively overrule a Supreme Court decision unfavorable to the government. 121 F. Supp. at 692-93. 8

Numerous state court decisions also have applied these principles. For a sampling of such cases (and many other such decisions exist), see Am. Discount Corp. v. Shepherd, 120 P.3d 96, 101-02 (Wash. App. 2005) ("An attempt by the legislature to retroactively change a statute in contravention of an existing judicial construction of that statute raises separation of powers issues . . . To apply the amendment retroactively would essentially 17

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Contrary to this authority, the government's motion is predicated principally on the unfounded theory that the 2007 NDAA Amendment requires liability to be determined anew as if the Federal Circuit's 2003 decision never existed. The Federal Circuit has definitely ruled as the law of this case that the pay statute at issue "requires payment for equivalent training that the Secretary prescribes," including required correspondence courses, and remanded the case for a determination only of which required courses, if any, had been completed by Plaintiffs and the amount of compensation due." 322 F.3d at 1368. This Court is bound to adhere to that ruling and cannot reconsider questions decided by the Federal Circuit. See, e.g., Jamesbury Corp. v. Litton Indus. Prods., Inc., 839 F.2d 1544, 1550 (Fed. Cir. 1988); accord Northern Helex Co. v. United States, 634 F.2d 557, 560 (Ct. Cl. 1980) (en banc) (reversing trial judge who "simply ignored our decision and proceeded instead to decide the case as he deemed proper and as if our decision never had been rendered"). Indeed, such adherence is most

make the legislature a court of last resort"); Unwired Telecom v. Parish of Calcasieu, 903 So.2d 392, 406 (La. 2005) (legislature's attempt to retroactively overrule court decision infringed upon judiciary power); State v. Fell, 97 P.3d 902, 907 (Ariz. App. 2004) ("A legislative attempt to retroactively overrule a decision by the courts of this state interpreting a statute violates the separation of powers doctrine"); Karadanis v. Bond, 993 P.2d 721, 726 (Nev. 2000) ("[W]e recognize that the legislature violates the separation of powers principle by retrospectively abrogating judicial pronouncements of the courts of this state through a legislative interpretation of the law"); Del Rio v. Crake, 955 P.2d 90, 97 (Haw. 1998) ("Nor can the legislature effect a change in the construction of a statute by a later declaration of what it had originally intended"); Phelps Dodge Corp. v. Rev. Div. of Dep't of Tax. & Rev., 702 P.2d 10, 13 (N.M. App. 1985) (statute that "sought to abrogate the interpretation of the exemption statute in Ranchers found to be clear and unambiguous and to preclude the decision in Ranchers from being accorded normal stare decisis effect" violated separation of powers); People v. Cuevas, 168 Cal. Rptr. 519, 524 (Cal. App. 1980) ("The legislative clarification in the amended statute may not be used to overrule this exercise of the judicial function of statutory construction and interpretation. The amended statute defines the law for the future, but it cannot define the law for the past"); People v. Harris, 387 N.E.2d 33, 37 (Ill. App. 1979) (essentially same); FedEx Corp. v. Skelton, 578 S.W.2d 1, 7-8 (Ark. 1979) (essentially same). 18

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appropriate when, as here, the case has been pending for several years and additional proceedings have been conducted based on the previous decision--particularly when the disappointed litigant chose not to exhaust appellate remedies. See, e.g., Suel v. Sec. of HHS, 192 F.3d 981, 986 & n.2 (Fed. Cir. 1999). The government's argument (Br. 21) that a trial court may depart from the mandate of an appellate court when the law "changes" is inconsistent with Federal Circuit precedent. Even assuming that the "changed law" exception is applicable here (a premise that cannot be reconciled with the government's repeated assertion that the 2007 NDAA Amendment "clarified" instead of "changed" § 206), the government disregards that deviations of the law of the case doctrine in these circumstances "are rare," and fails to establish that there could be any legitimate basis for disregarding the Federal Circuit's mandate here. Toro Co. v. White Consolidated Indus., Inc., 383 F.3d 1326, 1336 (Fed. Cir. 2004); accord Ulmet v. United States, 17 Cl. Ct. 679, 691 (1989) ("exceptions [to law of the case doctrine] should be narrowly construed and only utilized when the situation, specifically and unequivocally or unquestionably requires an exception's application"), overruled on other grounds, Wilson v. United States, 917 F.2d 529 (Fed. Cir. 1990), aff'd, Ulmet v. United States, 935 F.2d 280 (table) (Fed. Cir. 1991). Indeed, the Federal Circuit discourages departures from the "law of the case" doctrine even when a "close case" was presented by the issue previously decided and the law was changed following the decision on that "close" issue. See, e.g., Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1577 (Fed. Cir. 1996) (contention that changes in the law compel a different result "is not . . . a sufficient justification to refuse to follow law of the case," and the fact that a decision in a "close case" was involved "counsels in favor

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of abiding by the law of the case"); cf. Suel, 192 F.3d at 985 (quoting Hughes Aircraft with approval). Consistent with this authority, Ulmet v. United States, a primary case relied upon by the government --one that the government contends