Free Notice (Other) - District Court of Federal Claims - federal

Case 1:00-cv-00644-NBF

Document 136

Filed 10/18/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, individually and on behalf of all others similarly situated, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 00-644 (Judge Firestone)

DEFENDANT'S SECOND NOTICE OF SUPPLEMENTAL AUTHORITY On October 17, 2006, the President of the United States signed into law the John Warner National Defense Authorization Act for Fiscal Year 2007 ("NDAA 2007").1 In section 607 of the NDAA 2007, Congress set forth clarifying language regarding section 206 (d) of Title 37.2 Section 603 of the NDAA 2007 states: SEC 607. CLARIFICATION OF EFFECTIVE DATE OF PROHIBITION ON COMPENSATION FOR CORRESPONDENCE COURSES. Section 206 (d) of title 37, United States Code, is amended by adding at the end the following new paragraph: "(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.''. H. R. 5122, 109th Cong. at 165. The House of Representatives approved the NDAA 2007 on September 29, 2006 and the Senate approved it on September 30, 2006. Now that the NDAA 2007 has been enacted, pursuant to the Court's September 12, 2006 Order, the parties will be contacting the court to schedule a status conference in the near future. The clarification of the effective date of prohibition on compensation for correspondence courses was contained in section 603 of the Senate version of the NDAA 2007 , S. Rep. No. 109254, at 331-32 (2006), and section 607 of the House version. H. R. 5122, 109th Cong. at 165. The final version contained the clarification in section 607 of the NDAA 2007. Id.
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Case 1:00-cv-00644-NBF

Document 136

Filed 10/18/2006

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The clarification contained in the NDAA 2007 was in addition to the clarification contained in the National Defense Authorization Act for Fiscal Year 2006 ("NDAA 2006 "), which the President of the United States signed into law on January 6, 2006. Pub. L. No. 109163, 119 Stat. 3287; see Docket # 120. The Senate Committee on Armed Services' report regarding the NDAA 2007 made the following comments on the clarifications of 206(d) of Title 37 found in the NDAA 2006 and the NDAA 2007 : The committee recommends a provision that would amend section 206(d) of title 37, United States Code, to clarify that the prohibition on compensation for work or study in connection with correspondence courses, including the prohibition as it relates to a member of the National Guard while not in federal service, applies to any such work or study performed on or after September 7, 1962, and to any claim for compensation based on such work or study arising after that date. The committee believes that judicial rulings interpreting section 206(d) to permit compensation for completion of correspondence courses misinterpreted this provision and did not give adequate weight to the consistent practices of the services in administering training of members of the Reserve and National Guard in this regard. The changes to section 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). An extract from the NDAA 2007 (H.R. 5122), as well as an extract of the accompanying conference report (H.R. Rep. No. 109-702), and an extract from the Senate Committee on Armed Services' report (S. Rep. No. 109-254) are attached to this pleading as exhibits. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

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Case 1:00-cv-00644-NBF

Document 136

Filed 10/18/2006

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s/ Bryant G. Snee BRYANT G. SNEE Assistant Director OF COUNSEL: LT. COL. JOSEPH FETTERMAN MAJOR JERRETT DUNLAP United States Army Litigation Division Arlington, VA 22203-1837 MAJOR TRACEY ROCKENBACH United States Air Force General Litigation Division MAXIMINO GONZALEZ National Guard Bureau Office of Chief Counsel October 18, 2006 s/ Douglas K. Mickle DOUGLAS K. MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel. (202) 307-0383 Fax (202) 353-7988 Attorneys for Defendant

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Case 1:00-cv-00644-NBF

Document 136

Filed 10/18/2006

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on October 18, 2006, a copy of the foregoing "DEFENDANT'S SECOND NOTICE OF SUPPLEMENTAL AUTHORITY" with its accompanying appendix was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Douglas K. Mickle Douglas K. Mickle