Wednesday, October 26, 2011

Veterans "Can't Wait"

Last week, the Washington Post published an article headlining “Veterans unemployment outpaces civilian rate.” The article highlighted the latest employment data from the Bureau of Labor Statistics that concluded veterans who left military service in the past decade have an unemployment rate of 11.7 percent, well above the overall jobless rate of 9.1 percent. 
The elevated unemployment rate for new veterans has persisted despite President Obama's American Jobs Act introduced in September.  Under the Act, the President specifically proposed the following for to address veterans’ unemployment:   
  • Returning Heroes Tax Credit of up to $5,600 for civilian employers hiring veterans who have been looking for a job for more than six months
  • Wounded Warriors Tax Credit of up to $9,600 for hiring unemployed workers with service-connected disabilities who have been looking for a job for more than six month
  • A new task force to maximize career readiness of service members
The President’s prime focus on tax incentives for employers may help lower the unemployment rate. However, do employers really hire a person because of a tax incentive, or do they hire a person based on the needs of their business? A tax incentive is a short term fix. An employee, on the other hand, is a long term commitment and investment for the company.

Referring back to the Washington Post article, “The real problem, according to some veterans and employers, is translating what men and women learned and experienced in the military into civilian jobs.” 

Enter the Veterans Opportunity to Work Act (VOW Act). The House Armed Service Committee introduced this bill in July to better link military experience to civilian jobs. The VOW Act incorporates education, training, protections, and eliminates roadblocks in the system to provide veterans with the opportunity to compete in a 21st century economy. Under this Act, the following are addressed: 

The Transition Assistance Program (TAP)
TAP has been ongoing for almost thirty years. The programs provides service members who are about to be discharged with job seeking skills such as resume writing to help their transition to the civilian world. However, these programs need to be more up- to-date and effective. The bill would require the Department of Labor (DOL) to contract with a private entity or entities to provide specified counseling, employment, and training services. It would link military training and civilian job skills. In addition, the VOW Act will make attendance at TAP classes mandatory for all service members. 

Education and Training 
In today’s job market, education plays a key factor in employment. Through the Post-9/11 GI Bill more veterans are getting a secondary education than ever before. The VOW Act will further increase education as it will enable 100,000 unemployed veterans to receive up to 1-year of Montgomery GI Bill benefits. With these education benefits, veterans will acquire the skills needed to become employed.
Concerning training, the VOW Act will give state governors maximum flexibility in the funds they receive to help veterans find jobs, the VOW Act will give governors the option of using up to 25% of the funding for direct training services for veterans. In addition to further see state budgets utilized fully in training veterans, the VOW Act will better focus disabled veterans’ outreach program specialists (DVOPs) and local veterans’ employment representatives (LVERs) services, which includes employment counseling, to spend substantially all of their time assisting veterans.
Finally, the act will help older veterans as it would direct the Secretary of Labor to establish a new program for unemployed veterans between the ages of 35 and 60.  Selected veterans would get up to 12 months of federal financial assistance for education and training. 

Licensing & Certification 
Despite the military having some of the best-trained professionals, the inability to be credentialed or licensed in their field prevents these men and women from obtaining meaningful and gainful employment that makes use of their military training. Under current law, the Assistant Secretary for Veterans’ Employment and Training (ASVET) is to have a demonstration project involving at least ten military occupational specialties (MOSs).  The idea is to facilitate the recently separating veteran entering into a civilian occupation that is similar to his or her MOS on active duty.  VOTWA would change “at least ten” to not less than five nor more than ten” and thus water down the program.   

National Guard and Reserve 
14% of National Guard and Reserve are currently unemployed. Under the federal statute, Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must reemploy reservists and guardsmen who left their job to report for duty. Unfortunately, this is not always the case. Under the VOW Act, USERRA is strengthened to protect these servicemen and women.

Comparing the two bills, one finds disparate approaches but a common identification of key issues in putting our veterans back work. While tax incentives and transitional assistance are at the heart of the respective proposals, recent developments seem to necessitate a combination of the two. Recently, the VOW passed in the House with broad bipartisan support. As the legislation awaits consideration in the Senate, President Obama’s American Jobs Act has been widely considered dead on arrival. Having vowed to deliver the signature proposals of this legislation piece by piece, Administration officials just this week introduced two executive actions aimed at incentivizing veteran hiring. President Obama on Tuesday called on community health centers across the country to hire 8,000 veterans in three years; an effort supported logistically by the National Association of Community Health Centers. This initiative is meant to dovetail with the Administration’s second executive action this week. A comprehensive initiative giving “priority in physician assistant grant awards to universities and colleges that help train veterans for careers as physician assistants. In an effort to expand the number of training programs that accommodate veterans, the Administration also will identify model programs that offer expedited curricula for veterans and that offer enhanced veteran recruiting, retention, and mentoring services, and help bring these best practices to other programs.”

While the final impact of these respective initiatives is far from certain, one thing is doubtless: with over 40,000 troops scheduled to return home by year’s end President Obama has been correct in asserting “we can't wait”.

Cutting the Deficit: A Civilian Retirement System for the Military?

The House Armed Services Committee’s Subcommittee on Military Personnel held a hearing Tuesday afternoon before a number of representatives of The Military Coalition (TMC), including the Reserve Officers Association (ROA), on Military Retirement Reform.  Since the Defense Business Board (DBB) released recommendations for a military retirement overhaul this past July, this issue has prompted anxiety among servicing members, many of whom are represented by the organizations within TMC.   Under the proposed plan suggested by the DBB, the Department of Defense (DoD) would do away with the current military retirement system. The Board suggested for military retirement compensation would be altered from a “defined benefit” to a “defined contribution” as private sector plans have done using a 401(k) style plan, allowing members of the armed forces to be vested between three to five years. Under this system, service members would begin collecting retirement from age 57—60. This would eliminate the military career of twenty years minimum required for a retiree to immediately begin collecting retirement.[1]  

Although only four individuals were asked to sit on the panel as witnessed, the groups represented included the DoD, and the thirty-four organizations that comprise the TMC, including Reserve Officers Association and the Reserve Enlisted Association. Subcommittee Chairman Joe Wilson noted the absence of one significant group involved in the retirement reform conversation: The Defense Business Board (DBB), who declined the subcommittee’s invitation to testify at the hearing. The Principal Deputy Under Secretary of Defense for Personnel and Readiness, Jo Ann Rooney, and the Deputy Assistant Secretary of Defense for Military Personnel Policy, Virginia. S. Penrod, represented the DoD. Both Rooney and Penrod maintained a boilerplate assurance that the DoD is currently reviewing the military retirement system, but have neither completed this review nor endorsed the recommendations of the DBB. It should be noted, however, that Defense Secretary Leon Panetta testified at a House hearing on military budget issues on October 12. In that hearing, Panetta stated that there are no immediate plans to change the military’s retirement system, but any future changes will not affect those currently serving.

Representatives from TMC, Colonel Steve Strobridge and John Davis, however, reiterated the sentiments included in ROA’s testimony submitted to the hearing. They stated that Congress and the DoD should recognize the distinct differences between a military career and a civilian career, including the retirement systems of each.[2]
No permanent change to the military retirement system was recommended at the hearing. The absence of DBB limited the conversation regarding their suggested changes, and the representatives from DoD maintained that no changes could be discussed until the Department completed its review of the military pay and compensation package. 

Nevertheless, ROA and TMC brought to the forefront the real implications of changes to the military retirement system. As the serving armed forces represent less than 1 percent of the Unites States population with the retirees representing just another 6/10s of a percent, the ROA and TMC underlined the sacrifices and stress faced by this group of men and women are unique compared to the remaining 98.5 percent of American citizens. It is important that the DoD considers the effects any changes have on the morale, structure, and readiness, including the recruitment and retention, of our armed forces. Those who have sacrificed should not have to sacrifice again in their retirement compensation. 

Since following this issue since 2003, ROA is willing to work with the committee to find better ways to effectively reduce costs to not only maintain an adequate national security, but sustain the benefits of those who have served to attain it.   

[1] An article about this can be found in the upcoming November issue of The Officer on page 15.
[2] TMC’s testimony provides a history of the military retirement issue, as well as the difference options under consideration.

Wednesday, October 19, 2011

Crisis and Opportunity: ROA's Role for the Future of the Reserve Component

On November 1, Major General Andrew B. Davis, USMC (Ret.) will take the reins as ROA's next executive director. Maj. Gen. Davis' leadership comes at a unique time for the Reserve Officers Association. Amidst a shifting defense landscape and nearly unprecedented austerity, General Davis outlines how ROA will meet these challenges head on, undaunted in its commitment to serving those who serve.

In the Chinese language, two characters comprise the word “challenge”: crisis and opportunity.

That is precisely the strategic inflection point facing our nation’s defense. The crisis is clear. The current administration has called for a $350 billion reduction in defense spending in the next 10 years ($178.3 billion in the next five). The brutal reality is that figure will not come near contributing to the deficit-reduction supercommittee’s target  plan to reduce the deficit by $1.2 trillion over 10 years. Failure to find other federal budget cuts will trigger an automatic $600 billion reduction in Pentagon spending.  An analysis released last Friday by the Armed Services Committee staff predicts that the cuts “could leave the Pentagon with its lowest share of the federal budget since before World War II, shrinking the Army and Marine Corps by some 150,000 troops and leaving fewer warships and combat aircraft to project U.S. power around the world.” The crisis looms ― a hollow force unable to meet national security needs. The implications for our nation in a dangerous world are grim indeed. In the words of Defense Secretary Rumsfeld, “Perceived weakness is provocative.”

One obvious solution is to migrate Active Component (AC) missions, structure and equipment to the less costly (and more cost-effective) Reserve Component (RC).  The follow-on report to the FY2010 Quadrennial Defense Review drafted by the Vice Chairman of the Joint Chiefs of Staff and Assistant Secretary of Defense for Reserve Affairs recognized this course of action. “The United States cannot continue to remain engaged globally given DOD’s current force structure without employing the Guard and Reserve,” the report stated. Implied in the anticipated shrunken AC is expansion of employment of the Guard and Reserve by first defining the roles for which the Guard and Reserve are best suited (or are the force of first choice), then rebalancing the mix of AC and RC components to meet the demands of the combatant commanders.   This imperative makes the operational reserve “a necessity” that has “no reasonable alternative considering the threats that the United States faces at home and abroad”, in the words of the report of the Commission on the National Guard and Reserve.

Assuming that is the case, the challenge to the Defense establishment and the RC is to sustain the readiness and capability of the Reserve Force built over a decade of war, deployment and blood-sacrifice. The historic precedent is not encouraging. Following the high-water mark of Reserve commitment in the Korean War, the RC was put back on its Cold War shelf and allowed to atrophy. Budget cuts to training allotments in the 1970s saw RC readiness plummet. It took the Defense budget build-up of the Reagan years and post-Desert Storm commitment to higher readiness to reverse the trend, validated by the performance in combat of RC forces post-9/11.

Herein lies the opportunity for the Reserve Officers Association. The future relevance of the association hinges on linking its vision to two foundational concepts—Reserve Strength and Reserve Life.

Reserve Strength
Through its public policy advocacy, influence within the services, and community connection, the association can take the unchallenged lead in promoting a strong Reserve for a strong national defense. That strength is predicated on assuring the necessary resources— funding for personnel and training, equipment reconstitution, and horizontal fielding of new technology to the RC, coupled with defining roles and missions to achieve a strategic/operational Reserve balance.

Reserve Life
ROA has the capability to commit to and, through its programs, the influence to achieve career-long support for the Reservist and his/her family, encompassing :
•    Employer support;
•    Career development (e.g. the Joint Officer Professional Development Seminar as “must-attend” career enhancer);
•    Seamless health care transition to/from military and VA systems to the hometown;
•    Family support prior to, during and after deployment;
•    Ensuring a sound Reserve retirement benefit structure.

Achieving that vision mitigates the coming Defense cuts, sustains the operational RC, assures a stronger, more relevant ROA to members and strengthens the connection of serving Reservists to their communities.

Wednesday, October 12, 2011

Military Voters Disadvantaged During Presidential Primaries

Service Members Law Center Director, Captain Samuel F. Wright, JAGC, USN (Ret.) discusses the difficulties military personnel face during presidential primaries.

The process of selecting delegates to the Democratic and Republican Party nominating conventions starts earlier each cycle.  New Hampshire (with the first primary) and Iowa (with the first caucus) insist on being first.  They like the attention, and all the campaign workers and reporters generate a lot of business for local hotels and restaurants.  Other states are afraid of missing out on the attention, fearing that the nominee will be selected before they hold their own primaries.  As other states move up their primaries, Iowa and New Hampshire move their contests still earlier.  It is likely that the opening rounds of the 2012 nominating process will be held before 2011 is over.

The race to be first will result in the disenfranchisement of the brave young men and women who are away from home and prepared to lay down their lives in defense of our country, in our nation’s armed forces.  Because of their service to the nation, they cannot come home to vote in primaries or elections.  If they are to vote at all, it must be by absentee ballot.

Absentee voting has always been difficult for military personnel—there often is not enough time for the ballot to go from the local election official to the voter and back in time for the ballot to be counted.  As states race to hold their primaries earlier in the year, the ballot transmission time problem can only get worse. Thus, our military personnel's votes may not be recorded.

In addition, selecting national convention delegates by caucus can also be a disadvantage to military personnel. The 9,081 Iowans serving on active duty will almost certainly be disenfranchised in the Iowa caucuses—their military service precludes them from coming home to participate. 
I urge the state legislatures and state party organizations to select national convention delegates by primary, rather than caucus.  Earlier this year, I sent an e-mail to Matthew N. Strawn, the Chairman of the Republican Party of Iowa.  I urged him to consider means to enable Hawkeye State service members to participate in the selection of the Republican presidential nominee. 

Mr. Strawn did not respond to me, but when Politico (the newspaper for political enthusiasts here in Washington and around the country) picked up on this story, Mr. Strawn promised to direct the Republican State Central Committee to review how the voting rights of military personnel might be accommodated.  I am anxiously awaiting a report on the results of that review.

USERRA: Reemployment in the NFL?

This week’s news has raised again the issue of the application of the Uniformed Services Employment and Reemployment Rights Act (USERRA) to professional sports teams.  USERRA applies to such teams as employers.  The latest case involves Eric Kettani, who was a member of the practice squad of the New England Patriots until he was cut a few days ago, when the Navy ordered him to report to USS KLAKRING (FFG-42) as the ship was deploying from its home port in Mayport, Florida. 

Kettani was a football standout at the United States Naval Academy (USNA).  In 2009, he graduated and was commissioned an Ensign.  Of course, even a journeyman player in the National Football League (NFL) can make as much in one year as a member of the armed forces would make in a decade or more.

Like any service academy graduate, Kettani has an obligation to remain on active duty for at least five years after commissioning, or until 2014.  He asked the Navy for an accommodation, cutting short his active duty obligation to enable him to make big bucks in the NFL, but the Navy declined. Nevertheless, the Navy did permit Kettani to attend the New England Patriots training camp this summer.  He did not make the team, but he did make the practice squad.  Under NFL rules, the active roster of a team is limited to 53 players, and the team is permitted to maintain a practice squad with an additional 8 players.  Practice squad members are paid $5,200 per week.  A practice squad member cannot be added to the active roster during a game, but he can be added for the next week, after a player is cut or put on the injured reserve status.  
This situation leads to the question: Will Kettani have the right to reemployment under USERRA?  Probably not. He did not leave a position of civilian employment to enter active duty, voluntarily or involuntarily.  He was already on full-time active duty when he attended the Patriots’ training camp and participated in the team’s practice squad for the first few games of the 2011 season.  But when Kettani completes his Navy obligation the Patriots or some other team will almost certainly give him a shot.

Even if Kettani clearly had USERRA rights, cutting him from the practice squad would not have been unlawful.  An employer is not required to hold a position open, but the lack of a vacancy upon the veteran’s return does not defeat the veteran’s right to reemployment. (Please see Law Review 0829) It would have been pointless for the Patriots to waste one of the precious practice squad slots just to keep Kettani on the squad.

Eric Kettani’s situation can be contrasted with that of Patrick Tillman, a defensive back for the Arizona Cardinals.  After the terrorist attacks of September 11, 2001, Tillman decided that he should serve in our armed forces.  He enlisted in the Army as a Private, and he was killed in action in Afghanistan. As explained in Law Review 0719, USERRA applies to regular military service as well as service in the National Guard or Reserve.  If Tillman had been released from active duty without having exceeded the five-year limit (See Law Review 201) and without having received a punitive or other-than-honorable discharge, and if he had made a timely application for reemployment with the Arizona Cardinals after release, he would have had the right to reemployment under USERRA.

If Tillman had returned from active duty uninjured, he would not have needed to exercise his USERRA rights.  After his tragic death, his agent reported that several NFL teams had contacted the agent seeking to sign Tillman after he was released from the Army.  But what if Tillman had survived the friendly fire tragedy but had lost a leg?  Would he have had USERRA rights in that scenario?  Yes. Under section 4313(a)(3) of USERRA [38 U.S.C. 4313(a)(3)], the Arizona Cardinals would have had an obligation to make reasonable efforts to accommodate Tillman’s service-connected disability.  There is no reasonable accommodation a team could make to enable a one-legged man to play in the NFL, but under section 4313(a)(3) the Cardinals would have had the obligation to reemploy Tillman in another position that provided like seniority, status and pay, or the closest approximation there of consistent with the circumstances of the case.  A one-legged Pat Tillman could not return to the active roster, but he could be a coach or could be employed in some other capacity (See Law Review 0640).

USERRA applies to almost all employers in this country, including the Federal Government, state and local governments, and private employers, regardless of size.  Professional sports teams have not requested and have not obtained an exemption from USERRA.

Tuesday, October 11, 2011

Progress at Arlington National Cemetery

Congressman Jon Runyan headed a House Veterans Affairs subcommittee to report on the progress made in the Arlington National Cemetery since the 2010 scandal regarding poor management. According to the invited panelists, the majority of the problems associated with the 2010 findings have been rectified. One of the major issues regarding Arlington’s procedures was the lack of digital infrastructure and the reliance on typewriters. Since switching to a digital system, Arlington has become much more efficient and faster in processing its data.

According to some of the subcommittee members, one of the major concerns is the long wait times both in phone service and burial service. However, efforts have been made to shorten these wait times. For example, a phone system dedicated to handle customer needs replaced the old system where desk staffers answered phones only when time permitted. In addition, the burial service is in the process of improving its system to ensure efficiency. According to those testifying on Arlington’s behalf, a new digital map system is being engineered in a manner similar to Google Maps. This will allow patrons to easily and quickly identify specific grave sites for family members.

However, there is still progress to be made. Ms. Kathryn Condon, Executive Director of Arlington, and Major General William H. McCoy, the Inspector General of the Army, made several recommendations. One such suggestion was the creation of joint-multiservice policies at different levels to ease the bureaucratic process. Another suggestion was to possibly fold Arlington into the Department of Veterans Affairs because of its ability to manage similar large scale operations. However, one of the panelists believed it was more prudent to have Arlington remain in the Army. Lastly, the subcommittee repeated the complaint that burial wait times are still too long despite the improvements made to the database management and digitization of records. The panelists suggested that there be increases in equipment and training for personnel.

As Arlington National Cemetery is a final resting place for veterans, the Reserve Officers and the Reserve Enlisted Associations submitted testimony; reminding the subcommittee that not all Guard and Reserve members are eligible for interment at the Arlington National Cemetery. This testimony has been posted online by the House Veterans Affairs Committee, Subcommittee on Disability Assistance and Memorial Affairs.

Whistleblower Suit Against Big Banks

Service Members Law Center Director, Captain Samuel F. Wright, JAGC, USN (Ret.) discusses the recent lawsuit that claims companies defrauded veterans and taxpayers.

Two mortgage broker “whistleblowers” filed suit against several major financial institutions (including Bank of America, Wells Fargo, J.P. Morgan Chase, and GMAC Mortgage) in the United States District Court for the Northern District of Georgia.  This is a qui tam lawsuit.  The two plaintiffs, who learned of the alleged fraud through their work in the mortgage industry, are not claiming that they personally lost money in the alleged fraud. They are alleging that the Federal Government and thousands of individual veterans were ripped off.  If the Federal Government recovers money as a result of this lawsuit, the two “whistleblowers” stand to get a substantial percentage of the recovery, as a reward for their efforts, under a Civil War era law that provides for such lawsuits.

The alleged fraud relates to home loans for veterans, guaranteed by the Department of Veterans Affairs (DVA).  Under DVA rules, the veteran can be charged for title examination fees (to ensure that the seller has clear title to sell), recording fees, credit report fees, and certain other customary fees.  The lender is not permitted to charge for attorney’s fees or settlement closing fees.  The two whistleblowers allege that the banks charged impermissible fees by disguising them as permissible fees, thus ripping off the veterans who were buying homes and also increasing the amount that
DVA is guaranteeing in the home loan transaction.

The amount of the fraud in any one transaction is small, but you add up tens of thousands of transactions and you have really big bucks.  The two plaintiffs allege that big banks routinely break the rules to receive fees to which they are not entitled by law and regulation. I know some lawyers who make really big bucks in such qui tam lawsuits.  It seems to me that this is a most inefficient way to ferret out fraud, waste, and abuse affecting federal operations, but at least this is a way.

Friday, October 7, 2011

Equal Sacrifice, Equal Honor

On Thursday, October 6, ROA submitted testimony to the House Committee on Veterans Affairs’ Subcommittee on Disability Assistance and Memorial Affairs, which held a hearing  on “Arlington National Cemetery:  An Update on Reform and Progress.”  ROA voiced its concerns about burial eligibility for National Guard and Reservists members having burial benefit parity to Active Duty at the National Cemetery.   ROA again highlighted that “gray-area” retirees, those who retired from the National Guard or Reserve, but are under the age of 60, are currently ineligible for burial at Arlington.  Given the service and dedication of the Guard and Reserve in post-9/11 operations, ROA believes regulations for burial eligibility at Arlington National Cemetery should be revisited and revised to allow the Reserve Component service members the honor of being buried alongside their brothers and sisters-in-arms. Currently, the only eligible Reservists are those killed in action, received a Medal of Honor, Distinguished Service Cross, Air Force Cross, Navy Cross, Distinguished Service Medal, Silver Star or higher.

Over 800,000 National Guard and Reserve service members have been activated since post-9/11. These members put their civilian careers on hold, assume risks in training for their missions, and share the same risks as their counterparts in the Active Components on the battlefield. It is ironic that they no longer become eligible for burial at Arlington National Cemetery upon returning to Selective Reserve status. In addition, those who retired with 20 years of satisfactory federal service are not eligible either. National Guard and Reserve members must be retired in pay to be burial eligible.

Given these conditions, ROA supports in-ground burial eligibility for:
  • Any Reserve Component member who has served on active duty honorably in a combat or hazardous duty zone, but who has not been killed in the line of duty.
  • National Guard and Reservists who are killed in the line of duty whether on Active Duty for Training (ADT), Active Duty for Special Work (ADSW) for less than 30 days, or Individual Duty Training (IDT).
  • Deceased gray-area retirees, if entitled to retirement pay under Title 10.
  • Spouses, surviving spouses, or dependent children of any group of eligible National Guard and Reserve members.
Concerns over allocating the remaining burial capacity, which excludes the National Guard and Reserve members, are not as urgent with the recent acquirement of land at Arlington National Cemetery. Given this condition, care must be taken to recognize the contributions and sacrifices of the National Guard and Reserve members who are performing the same missions as their counterparts. These men and women should be allowed the same eligibility at the time of their death.

Wednesday, October 5, 2011

Staub v. Proctor Hospital: The Saga Continues

Service Member's Law Center Director, Captain Samuel F. Wright, JAGC, USN (Ret.) discusses recent developments in Staub v. Proctor Hospital, the first USERRA case ever heard by the Supreme Court:

In Law Review 1122, I discussed in detail the case of Staub v. Proctor Hospital, decided by the United States Supreme Court on March 1, 2011. The Supreme Court decision is great, and it establishes a great precedent that will help other Reserve and National Guard personnel for many decades to come, but the case is not over.

Vincent Staub worked for Proctor Hospital as an angiography technologist for many years, until he was fired in April 2004. While he worked for the hospital, his two direct supervisors (Mr. Korenchuk and Ms. Mullaly) harassed him continually about his Army Reserve activities and the impact that those activities unavoidably had on the Angiography Department of the hospital. The harassment even extended to trying to persuade other employees to lie about Staub, in an attempt to get him fired. This harassment is clearly shown in the testimony at the trial, testimony that was believed by the jury.

When the hospital finally fired Staub in 2004, Korenchuk and Mullaly provided input, but the firing decision was made by Ms. Buck, the hospital’s Vice President for Human Relations. Staub sued Proctor Hospital in the United States District Court for the Central District of Illinois (Peoria), claiming that the firing violated section 4311 of the Uniformed Services Employment and Reemployment Rights Act (USERRA). That section makes it unlawful for an employer to deny a person retention in employment, initial employment, or a promotion or benefit of employment on the basis of the person’s membership in a uniformed service, performance of service, or application or obligation to perform service.

The case proceeded to a jury trial in 2007. In accordance with the Federal Rules of Civil Procedure, the judge instructed the jury about the applicable law and then propounded a series of questions to the jury. The jury found, by a preponderance of the evidence, that Staub had proven that the firing was motivated, at least in part, by his Army Reserve activities and that the hospital had not proved that it would have fired Staub anyway, even if he had not been a member of the Army Reserve. The judge denied the defendant employer’s motions for new trial and for judgment notwithstanding the verdict.

Proctor Hospital appealed to the United States Court of Appeals for the 7th Circuit, the federal appellate court that sits in Chicago and hears appeals from district courts in Illinois, Indiana, and Wisconsin. The 7th Circuit reversed the judgment for Staub and entered judgment for Proctor Hospital. According to the appellate court, Staub was required to prove that the ultimate decision-maker on the firing (Buck) was “singularly influenced” by the two intermediate supervisors (Korenchuk and Mullaly) who had expressed anti-military animus against Staub, based on his Army Reserve service.

The kind of “singular influence” that the 7th Circuit required was akin to the influence that the clever monkey exercised over the dull cat in one of Aesop’s Fables, written 25 centuries ago. The monkey persuaded the cat to put the chestnuts in the fire and then withdraw them. The monkey was rewarded with roasted chestnuts, and the cat was left with nothing except burned paws. With this tough standard, it would be almost impossible for any Reservist or National Guard member to prevail in a section 4311 case.

Staub applied to the United States Supreme Court for a writ of certiorari (discretionary review). Four of the nine justices must affirmatively vote for certiorari, and this writ is denied almost 99% of the time. When certiorari is denied, the decision of the Court of Appeals becomes final and the case is over.

The Supreme Court granted certiorari, and the case was set for briefing and oral arguments. ROA filed an amicus curiae brief, urging the Court to overturn the 7th Circuit and rule for Staub. Many other organizations filed such briefs, some supporting Staub and some supporting the employer. Oral argument was conducted on November 2, 2010, and I assisted Staub’s attorney in his preparation. I am very pleased with the Court’s 8-0 ruling in favor of Staub and reversing the 7th Circuit.

In its decision, the Supreme Court established a much more realistic standard for deciding cases of this nature, where there is evidence that an intermediate supervisor was motivated by unlawful animus against the plaintiff but there was no direct evidence of unlawful animus by the ultimate decision-maker (Buck in this case). The rule established by the Supreme Court makes it much easier for a reservist like Staub to prevail in a section 4311 case.

The rule of law established by the Supreme Court in 2011 was not identical to the district judge’s instructions to the jury in 2007. The Supreme Court remanded the case to the 7th Circuit to determine if the variance between the 2011 Supreme Court rule and the 2007 instructions was harmless error or reversible error. The 7th Circuit has now determined that the variance was reversible error. That means that Staub and the hospital are back in district court in Peoria, for a whole new trial. Of course, it is entirely possible that the parties will now reach a settlement, and that the whole case will then quietly go away.

The further proceedings in this case are obviously important to Vincent Staub and his attorney—they have not yet collected their back pay and attorney fees. But nothing in these follow-up proceedings can undo the great precedent that the Supreme Court established on March 1. That precedent is now cast in stone as a published decision of our nation’s highest court.

Wisely Cutting Waste

On October 3, ROA attended a briefing presented by The Tax Protection Alliance. Panelists Dr. Loren Thompson of the Lexington Institute, David Williams from the Tax Payers Union, and Mattie Corrao from Americans for Tax Reform discussed options for cutting defense spending wisely. The general discussion focused on what panelists asserted were systemic issues plaguing defense spending. Panelists contended that lawmakers on both sides of the aisle needed to rethink their respective “sacred cow” approaches to certain programs. The panel’s consensus being that in the current fiscal environment, all programs are subject to a scrutinous cost benefit analysis. As those present examined the viability of specific programs, there was consistency in the calls for a more accepting approach towards open competition and private sector alternative platforms. Aside of the broad analysis of the appropriations and procurement process, two key programs were identified as representing unsustainable costs with little operational upside.

The first program discussed was the alternative engine for the F-35 Joint Strike Fighter; a project with redundant costs but seemingly no augmented performance. Prior to the F-35 development it had been unprecedented for a government funded program to use duplicate components from different manufacturers. The current engine design is produced by Pratt & Whitney while the alternate engine is being designed by General Electric. Panelists noted, the development of a totally new engine is not only redundant but confounding given the JSF already has a fully functional and reliable engine derived from a previous engine used in the F-22. The GE engine is not a derivative design and as such has incurred extra development costs. The result is a doubling down by the American taxpayer as they pay twice the cost for the second engine including development expenses which could amount to many billions of dollars in post-production costs including maintenance and spare parts.

The second program was the Medium Extended Air Defense System, MEADS. Conceived in the 1990s to supplant the Patriot Air Defense System, MEADS has experienced a series of cost overruns that has managed to make America’s European partners seek alternatives to MEADS in the form of upgraded Patriot systems at lower costs while meeting their collective security needs. One of the panelists suggested that because of the cost overruns, the Army has suggested that it may be more prudent to go with a program other than MEADS. As a result, MEADS has become a tax burden to Americans. Furthermore, MEADS will be duplicating capabilities that the American arsenal already possesses. There are other missile defense systems that are readily available and reliable.

ROA continues to advocate for the authorization and appropriation for a modern equipment account proportional to the missions being performed both domestically and abroad. ROA supports a cost benefit analysis and the subsequent elimination of programs which may be mismanaged or outdated. However, ROA maintains that the same pros and cons mindset must be adopted when considering the dangerous affects of a potentially hallowed military. As we scrutinize individual defense programs we must consider their contribution to the broader readiness of our troops. The readiness of our Reserve Component and the national security so deeply associated with that readiness must be at the forefront of our considerations when weighing specific cuts. ROA fully supports responsible steps towards debt and deficit reduction but will remain diligent in its advocacy against efforts to downgrade defense operability as a catch-all to cost savings.

From Active to Reserve: Transferring Missions to Cut Spending

Last week, Rep. Mike Coffman (R-Col.) submitted a plan to the Joint Select Committee on Deficit Reduction, suggesting that 100,000 soldiers be removed from Active Duty end strength and be transferred to the Army Reserve or the Army National Guard. According to Coffman, this would achieve a $90 billion savings in personnel cost over a ten year period.

Congressman Coffman gave the example that the average cost of a U.S. Army soldier is $130,000 per year while that same soldier cost $43,000 in the National Guard and $37,000 in the Army Reserve. Currently, the military has 1.42 million on active duty with 740,000 in the National Guard and Reserve. Cost of a mobilized Reservist would be about the same, but the saving would occur during the four to five years of Selected Reserve Time between mobilizations.

The topic of transferring missions from Active Duty to the Reserve Component has been given serious consideration in the Pentagon. As suggested in the recommendations by the Commission on the National Guard and Reserve, this has led to a comprehensive study by DoD Reserve Affairs. The Military Times reported last spring that “leaders of the National Guard and Army Reserve are looking to theater security cooperation missions as a way to keep their forces ready, even as demand for boots on the ground.”

Legislation is being considered in the Senate that would authorize “assured access” to 60,000 Reservists a year, even after the U.S. pulls out of Iraq and Afghanistan. Missions would have to be pre-planned and budgeted in advanced by the President. The House is suspicious of this concept, fearing that this will give any such authority to the service secretaries and thus are hesitant to permit a peacetime Title 10 call-up of National Guard and Reserve members.

“This strategy works if the National Guard is prohibited from deploying beyond America's borders except in the event of a declared war or national emergency," Doug Macgregor told Defense.AOL.COM A longtime advocate of changes to new force structure for the Army and Marines, Mr. Macgregor added, “This is a strategy I would strongly support, particularly if the Guard is refocused on homeland security and disaster relief."

ROA was a leader on this issue last spring, testifying before both the Senate and House about transferring manpower and resources from the Active Duty into the Reserve Component. In addition we have submitted letters of support for “assured access” as it will provide flexibility, maintain an operational reserve, and will eventually permit Title 10 Reservists to respond to domestic emergencies.