Petition for Writ of Certiorari — Bowman v. United States (No. 08-1184)

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Supreme Court, U.S.

FILED

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Jn CheOFFice OF THE CLERK

Supreme Court of the Gnited States

LINDEN D. BOWMAN,

Petitioner,

¥,

UNITED STATES OF AMERICA

AND

ROBERT M. GATES, SECRETARY OF DEFENSE

OF THE UNITED. STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

John W. Whitehead Robert T. Lynch

Douglas R. McKusick Counsel of Record

THE RUTHERFORD INSTITUTE LYNCH LEGAL SERVICES

1440 Sachem Place 2900 Fairmount Boulevard

Charlottesville, VA 22961 Cleveland Heights, OH 44118

(434) 978-3888 (216) 771-0999

Counsel for the Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED

In 1993, Congress enacted legislation to

encourage members of the armed services to retire

early from the military. As an incentive, the

legislation allowed early retirees to attain credit for

twenty years of military service, and a full military

pension, by engaging in employment for “public and

community service” organizations. However, the

Secretary of Defense adopted a regulation that

precluded credit for work for “organizations engaged

in religious activities, unless such activities are

unrelated to religious instructions, worship services,

or any form of proselytization.” This case challenges

the validity of that regulation and presents the

following questions:

Z Is the exclusion of religious organizations

invalid as contrary to the intent of Congress in

enacting the community service program?

2 Does the exclusion constitute a religion-based

classification that violates the guarantee to equal

protection embodied in the Due Process Clause of the

Fifth Amendment to the United States Constitution?

PARTIES TO THE PROCEEDINGS

The Petitioner, Linden W. Bowman, was the

sole Plaintiff-Appellant in the proceedings in the

United States Court of Appeals for the Sixth Circuit.

The Appellees in the Court of Appeals were the

Respondent United States of America and Donald

Rumsfeld, Secretary of Defense of the United States

of America. Respondent Robert M. Gates, current

Secretary of Defense of the United States of America,

is substituted for Secretary Rumsfeld pursuant to

Fed. R. Civ. P. 25(d).

TABLE OF CONTENTS

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Parties to the Proceedings...... Sea V Epi auae a skass talib wee bontn il

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Constitutional and Statutory Provisions.................... 1

NINN, OE UNIT CMO oo... soc ccnccessvcseccsccesrscesccccesecscesess 2

Reasons for Granting the Writ..................cc.cccceeeeeeeeeee 9

I. The Exclusion of Employment With

Organizations Engaged in Religious Activities is

Contraty to the Purpose and Intent of the

Legislation Establishing the Community Service

aac ucalivaubaievalcnscesnvesesessess 9

Il. The Religious Organizations Activities

Exclusion in the Community Service Program

Regulation Violates the Fifth Amendment's

Guarantee to Equal Protection of the Law ........... 17

A. The exclusion is subject to strict scrutiny

because it is a classification based upon religion

and burdens the exercise of religion .................. 18

B. The exclusion of religious activities from the

Community Service Program is not rationally

related to any conceivable governmental

MIN piaiduxasecssd voss vec eaecencee ease eel ceseuna ero e 25

Oe REEL e TORI REP ERE EE NP NPE T Re TAT 28

Appendix

Opinion of the United States Court of Appeals

for the Sixth Circuit filed December 18, 2008....1a

Order of the United States District Court for

the Northern District of Ohio entered

TIES BG HN eet idectntlasdasneecucens ceases 25a

Pub. L. 102-484, § 4462(a)(1), Codified at

Pe Te sei Gl ees aces 56a

Pub. L. 102-464, © €6G664..........ciscecceceescsscoess inne 59a

Code of Federal Regulations, Title 32,

§§ 77.1-77.6 Program to Encourage Public

and Community Service..............cccccsssesesceeceresees 62a

TABLE OF AUTHORITIES

Cases

Adarand Constructors v. Pena,

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Bowman v. United States, 512 F. Supp. 2d 1056

Be ace creiy top iexa pavoesn casas exersediceesoews 1.7

Chevron, U.S.A., Inc. v. NRDC, Inc.,

A irendrncententr incre nkcatccconcsazcqnenses passim

City of Cleburne v. Cleburne Living Ctr.,

re I vserispenic cide sses sssmsseidcsdomesicceeiees 25

Dolfi v. Pontesso, 156 F.3d 696 (6th Cir. 1998)........ 14

General Electric Co. v. Southern Construction Co.,

Oe © ee BOO COE Cit. TBGT) «0. cccccisesecdeccsosecessscesacess 12

Johnson v. Robinson, 415 U.S. 361 (1974) ...23, 25, 28

Locke v. Davey, 540 U.S. 712 (2004)... 9, 23

McDaniel v. Paty, 435 U.S. 618 (1978)............. passim

New Orleans v. Dukes, 427 U.S. 297 (1976) ............. y+

Brome @. Fea, BOE US. 72 CEB) ociiccccccscscscasisesescccens, 25

Richerson v. Jones, 551 F.2d 918, 928

ace Ceca Su he sain cvaun ned naaevoindaekees 12

Scheuer v. Rhodes, 416 U.S. 232 (1974)................008 11

Sherbert v. Verner, 374 U.S. 398 (1963) ...9, 20, 21, 22

United States v. Mead Corp.,

ee Oe. ee OD ois vccidcssecescacdconccapecnesasedcesves 15, 16

United States v. Shimer, 367 U.S. 374, 382 (1961) ..14

Village of Willowbrook v. Olech,

528 U.S. 562 (2000)................ ada uate a tances aaa 18

Statutes

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28 U.S.C. § 1254 (1)...... rai caics sbebusnsbenaadesanearecuvecer eas 1

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Pub. L. No. 102-484, § 4462(a)(1)...... cece eee ee a

Other Authorities

59 Fed. Reg. 15673 (April 4, 1993)... eee 27

Rules

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Regulations

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yy 0 See ee 2,4

Constitutional Provisions

U.S. Const. Amend. I, Establishment Clause 1, 15, 25

et CI vc ccuccuuciucscavavccecceiesess passim

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals for the

Sixth Circuit is unreported and is set forth in

Appendix at la-24a. The order and opinion of the

United States District Court for the Northern

District of Ohio denying the government’s motion to

dismiss under Fed. R. Civ. P. 12(b)(1) and granting

the government’s motion to dismiss under Fed. R.

Civ. P. 12(b)(6)) is reported as Bowman v. United

States, 512 F. Supp. 2d 1056 (N.D. Ohio 2007), and is

set forth in the Appendix at 25a-55a.

STATEMENT OF JURISDICTION

The judgment and opinion of the United States

Court of Appeals for the Sixth Circuit, which is the

subject of the instant petition, was entered on

December 18, 2008. This Court has jurisdiction to

review the judgment below under 28 U.S.C. § 1254

(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The First Amendment to the United States

Constitution provides, in relevant part:

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof].]

The Fifth Amendment to the United States

Constitution provides, in relevant parts:

No person shall be held to answer for a

capital, or otherwise infamous offense,

unless on a presentment or indictment

of a grand jury, .. .; nor be deprived of

life, liberty, or property, without due

process of law[.]

The provisions of Pub. L. 102-484, §§

4462(a)(1) and 4464, codified at 10 U.S.C. § 1143a,

are set forth in the Appendix beginning at 56a.

The provisions of 32 C.F.R. §§ 77.1-77.6, are

set forth in the Appendix beginning at 62a.

STATEMENT OF THE CASE

This case is a civil action seeking declaratory

and injunctive relief brought by the Petitioner,

Linden Bowman, against the Respondents, United

States of America and the Secretary of Defense, that

was filed in the United States District Court for the

Northern District of Ohio. That Court had

jurisdiction over this action under 28 U.S.C. §§ 1331,

1346(a)(2), 1361, and 5 U.S.C. § 702

The complaint set forth claims against the

United States of America and then-Secretary of

Defense Donald Rumsfeld arising out of the

implementation of a program’ established by

Congress in 1993 to “encourage members and former

members of the armed forces to enter into public and

community service jobs after discharge or release

from active duty.” Pub. L. No. 102-484, § 4462(a)(1),

106 Stat. 2702, 2741 (1992). The . legislation

establishing the Community Service Program is

codified at 10 U.S.C.§ 1143a (56a-58a).

Part of the legislation provided that service

members who retired before they achieved 20 years

of service could perform community service after

their retirement from the military and have years of

community service employment credited toward their

years of military service for purposes of calculating

the service member’s military pension (First

Amended Complaint, pgs. 2-3). The legislation

establishing this Community Service Program

defines “public service and community service

organizations” as organizations providing school

services and administration, law enforcement, public

health care, social services, and “any other public or

community service.” 10 U.S.C. § 1148a(g) (58a). The

legislation also instructed the Secretary of Defense to

implement the program to encourage former

members of the armed services to enter into public

and community service jobs. 10 U.S.C. § 1143a(a).

Pursuant to this direction, the Secretary of

Defense promulgated regulations for the Community

Service Program, which are set forth at 32 C.F.R. §§

77.1-77.6 (62a-70a). Under the regulations,

creditable community service employment includes

work for organizations that provide “social services”

and other public and community service consistent

with the kind of work otherwise identified in the

regulations. 32 C.F.R. § 77.3(d) (5) and (12).

However, the regulations also specifically

prohibit giving retired service members credit toward

retirement for employment with “organizations

engaged in religious activities, unless such activities

are unrelated to religious instructions, worship

services, or any form of proselytization.” 32 C.F.R. §

77.3(a) (63a). This exclusion of work for religious

organizations applies, even though the work a retired

service member performs constitutes social services

or otherwise constitutes “public and community

service” as defined in 10 U.S.C. § 1143a(g) and 32

C.F.R. § 77.3(d).

From September 1977 until January 1996,

Petitioner Bowman served in the United States Air

Force, achieving a final rank of Technical Sergeant

(First Amended Complaint, pg. 5). Upon retirement

from the Air Force in January 1996, Bowman

accepted employment with the People’s Church of C

& MA in Geneva, Ohio. The complaint alleged that

this employment constituted “public and community

service” as defined in 10 U.S.C. § 1148a(g) and 32

C.F.R. § 77.3(d), and was otherwise performed at a

time which would qualify the employment for credit

in computing his military retirement under the

Community Service Program (First Amended

Complaint, pgs. 5-6). Bowman submitted to the

Department of Defense a Validation of Public or

Community Service Employment form respecting his

employment with the People’s Church of C & MA in

the latter part of 1998, seeking credit for that

employment under the Community Service Program.

However, Bowman never received any response to

this application (First Amended Complaint, pg. 6).

On or about November 2002, Bowman

submitted another Validation of Public. or

Community Service Employment form to _ the

Director, Defense Manpower Data Center (hereafter

DMDC), in Fort Ord, California. Bowman never

received any response from the DMDC respecting his

request for credit for creditable service under the

Community Service Program (First Amended

Complaint, pg. 6). In October 2004, Bowman, with

the assistance of an attorney, again submitted the

Validation of Public or Community’ Service

Employment form to the DMDC, requesting a

response about the status of the application and

asking whether the inaction on the application

should be considered a denial. Neither Bowman nor

his attorney who wrote the letter received a response

to his letter (First Amended Complaint, pgs. 6-7)

Bowman’s complaint alleged that the reason

his request for creditable service under the

Community Service Program was neithér granted

nor processed is that the work shown on his

Validation of Public or Community Service

Employment form is religious in nature (First

Amended Complaint, pg. 7). Bowman also alleged

that but for the provisions of 32 C.F.R. § 77.3(a)

excluding employment with “organizations engaged

in religious activities” from the Community Service

Program, Bowman would be entitled to and granted

credit toward his military retirement benefits for the

years of employment with People’s Church of C & MA

(First Amended Complaint, pg. 7). Such credit would

result in Bowman receiving, upon reaching the age of

62, 50 percent of his base military pay as opposed to

42 percent of that pay without that credit (First

Amended Complaint, pgs. 7-8).

The complaint went on to allege as follows:

31. The exclusion of

employment with organizations engaged

in religious activities from qualification

for creditable early retirement public or

community service employment under

the Community Service Program is

facially violative of the guarantee to

equal protection of the law of the Fifth

Amendment to the United States

Constitution.

32. The exclusion of

employment with organizations engaged

in religious activities from qualification

for creditable early retirement public or

community service employment under

the Community Service Program is

violative of the guarantee to equal

protection of the law of the Fifth

Amendment to the United States

Constitution as applied to the Plaintiff.

33. The exclusion contained in

32 C.F.R. § 77.3(a) of employment with

organizations engaged in_ religious

activities from qualification for

creditable early retirement public or

community service employment under

the Community Service Program is not

authorized by the provisions of 10

J.S.C. § 1143a(g) and is contrary to the

purpose and intent of Congress in

enabling the Defendant Secretary of

Defense to promulgate regulations

encouraging community service by early

retirees from the armed services.

(First Amended Complaint, pg. 8).

In response to the Complaint, the Defendants

filed a motion to dismiss the Complaint in its entirety

pursuant to Fed. R. Civ. P. 12(b)(1) and (6). The

District Court granted the Defendants’ motion to

dismiss the Amended Complaint for failure to state a

claim, Bowman v. United States, 512 F. Supp. 2d

1056 (N.D. Ohio 2007) (54a-55a), and Bowman timely

appealed.

On appeal, the Court of Appeals for the Sixth

Circuit affirmed. That Court first held that the

exclusion set forth in 32 C.F.R. § 77.3(a) of

employment with organizations engaged in religious

activities is not inconsistent with the enabling

legislation, 10 U.S.C. § 1143a. Although recognizing

that the enabling legislation does not mention an

exclusion of religious organizations (9a), the Court

determined that the enabling legislation gave the

Secretary “broad discretion to adopt eligibility

criteria” for the Community Service Program, and so

the Secretary’s decision to include the exclusion

should be granted deference (10a-lla). Because

“{fnlothing in the legislative history suggests that

Congress intended to encourage retirees to accept

positions which would involve “religious instructions,

worship or proselytization” and “nothing in the text

of the statute itself suggests that Congress intended

to benefit this kind of activity,” the Court concluded

that the Secretary’s decision to include the exclusion

should be upheld (13a).

The Court of Appeals also determined that the

exclusion did not violate Bowman’s right to equal

protection of the law as guaranteed by the Fifth

Amendment. It first found that the exclusion was

not subject to strict judicial scrutiny because

Bowman had “not shown that his fundamental right

to free exercise of religion had been violated.” (19a).

The Court held that this Court’s ruling in McDaniel

v. Paty, 435 U.S. 618 (1978), applying strict scrutiny

to a state law disqualifying clergy from participating

in state constitutional conventions was not apposite

because McDaniel involved a clergyman’s “right to

participate in the political affairs of the community.”

(15a). It also held that this Court’s rulings applying

strict scrutiny to denials of public benefits to persons

because of the person’s religious beliefs, see, e.g.,

Sherbert v. Verner, 374 U.S. 398 (1963), were not

apposite because “any loss of an incremental ircrease

in his retirement pay burdened him much less than

losing unemployment compensation altogether.”

(17a). Instead, the Court of Appeals determined that

this case was controlled by Locke v. Davey, 540 U.S.

712 (2004), in that the Secretary’s regulations merely

evinced a decision not to fund a category of public

service work. It reasoned that “[t]he breadth of the

exclusion suggests that the Secretary was not

discriminating along religious lines.” (19a).

Applying “rational basis” scrutiny, the Court of

Appeals upheld the Secretary’s exclusion. It accepted

the government’s argument that the exclusion was

“necessary to comport with Congressional intent to

limit community service credit to those serving in

education, law enforcement, and public health.”

(23a).

REASONS FOR GRANTING THE WRIT

I. THE EXCLUSION OF EMPLOYMENT

WITH ORGANIZATIONS ENGAGED IN

RELIGIOUS ACTIVITIES IS CONTRARY

TO THE PURPOSE AND INTENT OF THE

LEGISLATION ESTABLISHING THE

COMMUNITY SERVICE PROGRAM.

The Community Service Program under which

Bowman seeks credit toward his military service in

determining his retirement benefits was authorized

by Congress when it enacted 10 U.S.C. § 1143a(g).

The authorizing legislation unambiguously defines

“public service and community service organizations”

as follows:

(1) Any organization that provides the

following services:

(A) Elementary, secondary, or

postsecondary school teaching or

administration.

(B) Support of such teaching or

schoo] administration.

(D) Public health care.

(E) Social services.

(F) Any other’ public or

community service.

(2) Any nonprofit organization that

coordinates the provision of services

described in paragraph (1).

10 U.S.C. § 1143a(g). Congress included no language

excluding work for religious organizations and

institutions in determining what post-retirement

employment should be eligible as creditable service.

When reviewing the authority to promulgate a

regulation, “[i]f the intent of Congress is clear, that is

the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, U.S.A., Inc.

v. NRDC, Inc., 467 U.S. 837, 842-843 (1984).

The provisions of 32 C.F.R. § 77.3(a), which

prohibit giving retired service members credit toward

retirement for employment with “organizations

engaged in religious activities, unless such activities

are unrelated to religious instructions, worship

services, or any form of proselytization,” clearly is not

authorized by the legislation. Indeed, the exclusion

disqualifies work, such as that performed by

Bowman in his capacity as a youth pastor, that

constitutes “social services” and “public. or

community service” that is specifically within the

ambit of qualifying work under the plain terms of 10

U.S.C. § 1143a(g).! The exclusion fails to give effect

to the plain terms used by Congress and must be

found to be manifestly contrary to the statute.

That the exclusion is contrary to the intent of

Congress is supported by the fact that where

1 The Amended Complaint specifically alleged that

Bowman’s work as a youth pastor constituted “public

and community service” within the meaning of 10

U.S.C. § 1143a(g) (First Amended Complaint, pg. 6).

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (in

passing on a motion to dismiss, whether on the

ground of lack of jurisdiction over the subject matter

or for failure to state a cause of action, the

allegations of the complaint should be construed

favorably to the pleader).

Congress has intended to impose such a restriction or

exclusion, it has done so explicitly. See, eg., 42

U.S.C. § 300x-65(i) (“[n]o funds provided through a

grant or contract to a religious organization to

provide services under any substance abuse program

under this title or title V shall be expended for

sectarian worship, instruction, or proselytization.”),

29 U.S.C. § 2938(a)(3) (“[plarticipants shall not be

employed under this title to carry out the

construction, operation, or maintenance of any part

of any facility that is used or to be used for sectarian

instruction or as a place for religious worship”), and

42 U.S.C. § 9920(c) (“[nlo funds provided directly to a

religious organization to provide assistance under

any program described in subsection (a) shall be

expended for sectarian worship, instruction, or

proselytization.”). This serves only to emphasize that

when Congress intended such a restriction to exist, it

expressly imposed or authorized the restriction.

Although the Court of Appeals wrote that “too

much should not be made of Congressional silence,”

(10a), “where a statute with respect to one subject

contains a given provision, the omission of such

provision from a similar statute is significant to show

a different intention existed.” Richerson v. Jones,

551 F.2d 918, 928 (3d Cir. 1977) (quoting General

Electric Co. v. Southern Construction Co., 383 F.2d

135, 138 n. 4 (5th Cir. 1967)). The absence of a

religious organization restriction from 10 U.S.C. §

1143a(g) speaks volumes in this case.

In upholding the exclusion as authorized and

consistent with 10 U.S.C. § 1143a, the Court of

Appeals repeatedly cited to the “broad power” (8a)

and “broad discretion” (10a) granted by the

legislation to the Secretary of Defense to determine

what organizations qualify under the community

service program. But one must search in vain for any

language in 10 U.S.C. § 1148a granting broad

discretion or power to the Secretary. Indeed, the

statute provides simply that the Secretary “shall

implement a program to encourage” service members

to enter into community service. The section of the

legislation defining “public service and community

service organizations,” 10 U.S.C. § 1143a(g), does not

contain any additional language authorizing the

Secretary to limit or define the organizations that

qualify under the program.

To the extent the Court of Appeals determined

that it must assume such “broad discretion” because

of this Court’s decision in Chevron, U.S.A. v. NRDC,

Inc., supra, regarding the deference courts are to

afford agencies in the interpretation of statutes, it

also plainly erred. The deference required under

Chevron is inapplicable when the agency action does

not involve the exercise of any agency expertise in

the implementation of stated Congressional policy.

Thus, this Court pointed out that the principle of

deference to administrative interpretations

“has been consistently followed by this

Court whenever decision as to the

meaning or reach of a statute has

involved reconciling conflicting policies,

and a full understanding of the

force of the statutory policy in the

given situation has depended upon

more than ordinary knowledge

respecting the matters subjected to

agency regulations. See, e g.,

National Broadcasting Co. v. United

States, 319 U.S. 190; Labor Board v.

Hearst Publications, Inc., 322 U.S. 111;

Republic Aviation Corp. v. Labor Board,

324 U.S. 793; Securities & Exchange

Comm'n v. Chenery Corp., 332 U.S. 194;

Labor Board v. Seven-Up Bottling Co.,

344 U.S. 344.

Chevron, U.S.A., Inc., 467 U.S. at 844-45 (quoting

United States v. Shimer, 367 U.S. 374, 382, 383

(1961)) (emphasis added). “The special deference

required by Chevron is based on the expertise of an

administrative agency in a complex field of

regulation with nuances perhaps unfamiliar to the

federal courts.” Dolfi v. Pontesso, 156 F.3d 696, 700

(6th Cir. 1998).

While the Secretary of Defense certainly has

special knowledge relating to the execution of

military operations and the administration and

operation of the armed services, there is nothing to

support the idea that the Secretary or the

Department of Defense has any particular expertise

in public service organizations, which organizations

provide social, public or community service, or what

areas of community service need _ particular

assistance. Indeed, it is evident that the exclusion of

religious organizations was included not because of

the conclusion that religious organizations do not

provide “public or community service” but because of

the mistaken conclusion that the exclusion was

required by the Establishment Clause.?

Moreover, judicial deference to the regulation

promulgated by the Secretary is not warranted under

Chevron because the legislation at issue here did not

leave it to the Secretary to fill gaps or elucidate

general standards. In United States v. Mead Corp.,

533 U.S. 218 (2001), this Court made clear that not

all administrative actions are entitled to the

deference articulated in Chevron, but the degree of

deference varies with the circumstances of each case.

Mead Corp. held that “administrative

implementation of a particular statutory provision

qualifies for Chevron deference when it appears that

Congress delegated authority to the agency generally

to make rules carrying the force of law, and that the

agency interpretation claiming deference was

promulgated in the exercise of that authority.” Id. at

226-27. Such authority is generally found when the

agency acts through notice-and-comment rulemaking

or adjudication. “It is fair to assume . . . that

*In the District Court, the Respondents argued only

that the purpose of the exclusion was to avoid

Establishment Clause problems, but conceded on

appeal that the exclusion was not required by the

Establishment Clause.

Congress contemplates administrative action with

the effect of law when it provides for relatively formal

administrative procedure[.]” Mead Corp., 533 U.S. at

230.

The regulation at issue here did not result

from any formalized administrative process, nor was

it the result of Congressional legislation delegating to

the Secretary of Defense the task of “filling gaps” left

by the legislation. The community service program

legislation simply instructed the Secretary of Defense

to “implement” the program, 10 U.S.C. § 1143a(a),

and defined the characteristics of “public service and

community service organizations.” 10 U.S.C. §

1143a(g). Congress did not instruct the Secretary to

implement the program through rulemaking or

adjudication, nor was it actually implemented

through those processes. Thus, this is not a case

where Congress intended any regulations of the

Secretary to “speak with the force of law,” Mead

Corp., 533 U.S. at 229, such that Chevron-type

deference is required.

Congress clearly meant for the program to be

broadly available for public or community service

work because 10 U.S.C. § 1143a(g) lists not only

“teaching,” “[llaw enforcement,” and “[p]ublic health

care,” but also “[slocial services” and “la]ny other

public or community service” as the kind of services

an organization may provide in order to qualify

under the Community Service Program. The

exclusion of religious organizations set forth in 32

C.F.R. § 77.3(a) is unnecessary and not even hinted

at by any provision of the legislation. It is contrary

to the plain intention of the enabling legislation not

to allow persons retiring from the military credit for

all “community” or “social services” performed within

the established time limits after leaving the military.

Therefore, the judgment of the Court of Appeals

upholding the regulation should be reversed.

IT. THE RELIGIOUS ORGANIZATIONS

ACTITIVITIES EXCLUSION IN THE

COMMUNITY SERVICE PROGRAM

REGULATION VIOLATES THE FIFTH

AMENDMENT’S GUARANTEE TO EQUAL

PROTECTION OF THE LAW.

The exclusion contained in 32 C.F.R. § 77.3(a)

prohibiting Bowman and other retired service

members from receiving credit toward retirement for

employment with “organizations engaged in religious

activities, unless such activities are unrelated to

religious instructions, worship services, or any form

of proselytization” establishes a classification that is

subject to scrutiny under the guarantee to equal

protection of the law contained in the Fifth

Amendment. See Adarand Constructors v. Pena, 515

U.S. 200, 217 (1995) (Fifth Amendment’s Due Process

Clause embodies equal _ protection guarantee

equivalent to the Fourteenth Amendment’s Equal

Protection Clause). Bowman’s allegations in the

Amended Complaint set forth facts showing that the

exclusion treats similarly situated persons differently

and that such disparate treatment is not justified.

Village of Willowbrook v. Olech, 528 U.S. 562, 564-65

(2000).

The Court of Appeals determined that the

classification set up by the exclusion does not violate

the Fifth Amendment’s guarantee, ruling (1) that the

classification was not subject to strict scrutiny even

though it is based upon religion (2la), and (2) the

distinction drawn survives rational] basis scrutiny

because the exclusion is “necessary to comport with

Congressional intent to limit community service

credit to those serving in education, law enforcement

and public health” (23a). Each of these rulings is

erroneous and requires that the judgment below be

reversed.

A. The exclusion is subject to _ strict

scrutiny because it is a classification based

upon religion and _ burdens the exercise of

religion.

Bowman alleged in his Amended Complaint

that the work he performed as a youth pastor at the

People’s Church of C & MA between January 1996

and February 2001 constituted public and

community service of the kind described in 10 U.S.C.

§ 11438a(g) and 32 C.F.R. § 77.3(d) (First Amended

Complaint, pg. 6). The legislation (Pub. L. 102-484, §

4464 and 10 U.S.C. § 1043) and regulations allow

military retirees to obtain credit for work for

organizations that provide “social services” and other

public and community service consistent with the

kind of work otherwise identified in the regulations.

32 C.F.R. § 77.3(d)(5) and (12). It was only because

Bowman’s work was for a religious organization and

had a religious component to it that he is not eligible

for the benefit granted to other retirees under the

Community Service Program (First Amended

Complaint, pg. 7).

Where a classification affecting the eligibility

for benefits is based upon religion, the classification

burdens the exercise of religion and is subject to

strict scrutiny in an equal protection challenge.

Thus, in McDaniel v. Paty, 435 U.S. 618 (1978), this

Court unanimously struck down a Tennessee statute

that disqualified clergymen from participation in

state constitutional conventions, writing as follows:

[Tlhe right to the free exercise of

religion unquestionably encompasses

the right to preach, proselyte, and

perform other —_ similar religious

functions, or, in other words, to be a

minister of the type McDaniel wes

found to be. Murdock v. Pennsylvania,

319 U.S. 105 (1943); Cantwell uv.

Connecticut, 310 U.S. 296 (1940).

Tennessee also acknowledges the right

of its adult citizens generally to seek

and hold office as_ legislators or

delegates to the state constitutional

convention. ... Yet under the clergy-

disqualification provision, McDaniel

cannot exercise both rights

simultaneously because the State has

conditioned the exercise of one on the

surrender of the other. Or, in James

Madison’s words, the State is

“punishing a religious profession with

the privation of a civil right.” 5 Writings

of James Madison, supra, at 288. In so

doing, Tennessee has encroached upon

McDaniel’s right to the free exercise of

religion. “[To] condition the availability

of benefits [including access to the

ballot] upon this appellant’s willingness

to violate a cardinal principle of [his]

religious faith [by surrendering his

religiously impelled ministry] effectively

penalizes the free exercise of [his]

constitutional liberties.” Sherbert uv.

Verner, 374 U.S. 398, 406 (1963).

McDaniel, 435 U.S. at 626.

In a concurring opinion, Justice Brennan

wrote that the law _ established a_ religious

classification that was absolutely prohibited and that

“government may not use religion as a basis of

classification for the imposition of duties, penalties,

privileges or benefits.” Jd. at 639 (Brennan, J.,

concurring).

The exclusion at issue here makes precisely

the kind of religious classification that was found to

burden the free exercise of religion in McDaniel.

Under equal protection jurisprudence, strict scrutiny

applies where a classification trammels fundamental

personal rights or is drawn upon inherently suspect

distinctions such as race or religion. New Orleans v.

Dukes, 427 U.S. 297, 303 (1976). See also

Employment Div. v. Smith, 494 U.S. 872, 886 n. 3

(1990) (courts are required to strictly scrutinize

governmental classifications based on religion). The

Court of Appeals should have applied strict scrutiny

and demanded that the Defendants identify a

compelling interest justifying the exclusion.

Instead, the lower courts’ distinguished

McDaniel, indicating that the principle enunciated

there applies only where a religious classification

affects a person’s right to participate in the political

affairs of the community (15a, 45a). But McDaniel is

not so limited; both the plurality opinion and Justice

Brennan’s concurrence in McDaniel indicated that

religion cannot be the basis for a classification

affecting the receipt of government benefits (except

where there is some compelling government interest

supporting the classification). Indeed, the McDaniel

plurality cited Sherbert v. Verner, supra, which held

that a denial of unemployment benefits to a person

because her religious beliefs prevented her from

working on Saturdays constituted a burden on the

exercise of religion that must be supported by a

compelling interest in order to survive a legal

challenge. This Court rejected the state’s defense

that the ability to collect unemployment is a

privilege, not a right, writing that “[i]t is too late in

the day to doubt that the liberties of religion and

expression may be infringed by the denial of or

placing of conditions upon a benefit or privilege.”

Sherbert, 374 U.S. at 404. Thus, the fundamental

right to free exercise is burdened where religion is

the basis for a classification affecting the receipt of

benefits.

The Court of Appeals also distinguished

Sherbert, asserting that “any loss of an incremental

increase in his retirement pay burdened him much

less than losing unemployment compensation

altogether” (17a). But it cited no support for the idea

that the protections of the Fifth Amendment against

facially discriminatory classification traditionally

subject to strict scrutiny are triggered only by

discrimination with “severe” economic consequences.

Moreover, the Court had no grounds for concluding

that the actual loss Bowman will suffer from his

retirement pay, which he is to receive for the

remainder of his lifetime once he reaches age 62,

would be marginal.

The lower court also erred in ruling that

Bowman was not put to the choice between

exercising his religious beliefs and receiving a

government benefit. His beliefs led him to choose the

ministry, and by doing so he forfeited any chance of

receiving public and community service credit toward

his retirement. See Sherbert, 374 U.S. at 405

(conditions upon public benefits cannot be sustained

if they so operate, whatever their purpose, as to

inhibit or deter the exercise of First Amendment

freedoms). Again, McDaniel, 435 U.S. at 626

(quoting Sherbert, 374 U.S. at 406), pointed out that

conditioning a benefit on a person’s “willingness to

violate a cardinal principle of [his] religious faith [by

surrendering his religiously impelled ministry]

effectively penalizes the free exercise of [his]

constitutional liberties.” Indeed, the concurring

opinion authored by Justice Brennan and joined by

Justice Marshall stressed that “Tennessee’s political

exclusion [cannot] be distinguished from the

Sherbert’s welfare disqualification[.]” McDaniel, 435

U.S. at 634 (Brennan, J., concurring).

The courts below also placed great reliance

upon Locke v. Davey, 540 U.S. 712 (2004), but Locke

is distinguishable on numerous grounds. In that

case, this Court found that the state scholarship

program at issue was not sufficiently hostile to

religion because it did not require persons to choose

between their religious beliefs and receiving a

government benefit. Jd. at 720-21. As pointed out

above, a classification requiring one to forego the

ministry as a condition of receiving a government

benefit does compel such a choice. Additionally, this

is not a case where the program “goes a long way

toward including religion in its benefits.” Locke, 540

U.S. at 724. Under the regulation at issue, any work

for an organization that engages in religious

instruction, religious services or proselytization is

disqualified. Thus, this case is unlike Locke, where

the program was sufficiently neutral toward religion.

The Court of Appeals’ reliance on Johnson v.

Robinson, 415 U.S. 361 (1974), to sustain the

exclusion also is_ misplaced. Johnson upheld

legislation that did not extend veteran educational

benefits to conscientious objectors who performed

alternative service during wartime. This Court

found that the classification was not subject to strict

scrutiny because the legislation did not evinec an

intention to exclude persons on the basis of religion.

Johnson, 415 U.S. at 385. By contrast, the regulation

at issue here specifically bases the exclusion on

religion and so clearly intentionally discriminates on

the basis of religion. Moreover, Johnson found no

constitutional problem with denying benefits to

conscientious objectors because of the government’s

“substantial interest” in raising and supporting

armies justified the burden on conscientious objectors

religious rights. Jd. As discussed, infra, there is no

similar substantial interest justifying the exclusion

set forth in 32 C.F.R. § 77.3(a).

Under 32 C.F.R. § 77.3(a), employment in the

service of a religious organization is disqualified from

eligibility in the Community Service Program, even

though that employment otherwise constitutes public

or community service. This classification on the

basis of religion is inherently suspect and subject to

strict scrutiny. The lower courts’ failure to apply

strict scrutiny and require the Defendants to

articulate a compelling interest for the exclusion was

error requiring reversal of the judgment below.

For the reasons discussed infra, the exclusion

must be found to fail strict scrutiny because the sole

basis for the exclusion articulated by the Defendants

does not survive even rational basis scrutiny. The

Defendants abandoned any claim that the exclusion

was required to comport with the Establishment

Clause.

B. The exclusion of religious activities from

the Community Service Program _is_ not

rationally related to any conceivable

governmental purpose.

Even if the classification made by 32 C.F.R. §

77.3(a) is judged under the rational basis standard

test of equal protection, the Defendants’ request that

Bowman’s claim be dismissed still must fail.

Although the government is generally allowed to

make classifications of persons, the constitutional

guaraniee to equal protection denies the government

“the power to legislate that different treatment be

accorded to persons placed by a statute into different

classes on the basis of criteria wholly unrelated to

the objective of that statute. A classification ‘must be

reasonable, not arbitrary, and must rest upon some

ground of difference having a fair and substantial

relation to the object of the legislation, so that all

persons similarly circumstanced shall be treated

alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412,

415 (1920).” Johnson, 415 U.S. 374-375 (quoting

Reed v. Reed, 404 U.S. 71, 75-76 (1971)). The

government may not rely on a classification whose

relationship to an asserted goal is so attenuated as to

render the distinction arbitrary or irrational. City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446

(1985).

The Defendants and Court of Appeals

articulated a single justification for the exclusion of

religion-related employment from the Community

Service Program; because Congress intended to limit

public and community service credit to persons

serving in education, law enforcement and public

health, the exclusion was necessary to comport with

this legislative intent (23a).

However, the plain terms of 10 U.S.C. § 1043a

refute the idea that Congress limited retirement

credit eligibility to work for education, law

enforcement, and health care _ organizations.

Congress specifically defined “public and community

service organizations” as including, in addition to the

categories listed by the Defendants, organizations

providing “social services” and “any other public or

community service.” 10 U.S.C. § 1043a(g)(1) (E) and

(F). Congress clearly meant for the program to be

broadly available for public or community service

work because 10 U.S.C. § 1143a(g) lists not only

“teaching,” “(llaw enforcement,” and “[p]Jublic health

care,” but also “[slocial services” and “[a]lny other

public or community service” as the kind of services

an organization may provide in order to qualify

under the Community Service Program. If anything,

the statutory language demonstrates that the scope

of qualifying organizations was intended to be

broader than simply those involved in education,

health care, and law enforcement.

Moreover, the Defendants’ contention that the

regulation reflects the supposed Congressional intent

to limit the Community Service Program to so-called

“critical need” organizations is similarly refuted by

the terms of the regulation. Eligible organizations

under 32 C.F.R. § 77.3(d) include not only those

providing education, law enforcement, and health

care, but also include “social services,” “public

safety,” “emergency relief,” “public housing,”

“conservation,” “environment,” “job training,” and

“other public and community service . . ., consistent

with or related to services described in paragraphs

(d)(1) through (11) of this section.” Jd., § 77.3(d) (5)-

(12).

The Secretary of Defense’s actual regulation

clearly reflects an understanding of the scope of 10

U.S.C. § 1043a that is far broader than the limited

scope now professed as a justification for the religious

organization exclusion. The Defendants’ arguments

concerning Congressional] intent appear

disingenuous, given the fact that the actual scope of

the regulation does not coincide with the supposed

legislative intent to limit the program to education,

law enforcement, and health care organizations. See

also 59 Fed. Reg. 15673 (April 4, 1993) (noting in the

notice of proposed rulemaking that the purpose of

community service registry is “to encourage

separating Service members to enter into public and

community service job vacancies, such as in

education, conservation, environmental protection,

law enforcement, and public health care after

separation from active duty) (emphasis added).

The guarantee to equal protection requires

that when a law or regulation singles out a particular

class for different treatment, there must be some real

distinction justifying the different treatment.

Johnson, 415 U.S. at 374-375. Simply because

Bowman worked for a religious organization in a

religious capacity is no basis for the conclusion that

his service was distinguishable in any relevant

respect from other social, public, and community

service that qualifies for credit under the Community

Service Program. Therefore, the exclusion is

irrational and should be struck down.

CONCLUSION

For the reasons set forth above, the Petitioner,

Linden S. Bowman, respectfully requests that the

instant Petition be granted and that the judgment of

the Court of Appeals be reversed.

Respectfully submitted,

Robert T. Lynch

LYNCH LEGAL SERVICES

2900 Fairmount Boulevard

Cleveland Heights, OH 44118

(216) 771-0999

Counsel of Record

for the Petitioner

Participating Attorney On Behalf

of The Rutherford Institute

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22901

Counsel for the Petitioner

No. 08-

In The

Supreme Court of the Gunited States

LINDEN D. BOWMAN,

Petitioner,

V —

UNITED STATES OF AMERICA

AND

ROBERT M. GATES, SECRETARY OF DEFENSE

OF THE UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

APPENDIX

John W. Whitehead Robert T. Lynch

Douglas R. McKusick Counsel of Record

THE RUTHERFORD INSTITUTE LYNCH LEGAL SERVICES

1440 Sachem Place 2900 Fairmount Boulevard

Charlottesville, VA 22901 Cleveland Heights, OH 44118

(434) 978-3888 (216) 771-0999

Counsel for the Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Surte 100 Richmond, Virginia 23219 (800) 847-0477

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 07-4322

FILED

DEC 18 2008

LEONARD GREEN,

LINDEN BOWMAN, )

)

v. ) CLERK

)

Plaintiff-Appellant,

UNITED STATES,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO

BEFORE: GIBBONS and COOK, Circuit

Judges; and STEEH, District Judge.”

GEORGE CARAM STEEH District Judge.

This lawsuit arises from plaintiff Linden Bowman's

early retirement from the United States Air Force

and his failed attempt to participate in a program

that would allow him to have community service

work count toward his years of service needed to

obtain a full twenty-year military retirement. The

Secretary of Defense failed to process his request for

military service credit for his work as a youth

" The Honorable George Carem Steeh, United States District Judge

for the Eastern Distnct of Michigan, sitting by designation.

minister on grounds that the regulations specifically

prohibit credit for employment with “religious

organizations engaged in religious activities, unless

such activities are unrelated to religious instruction,

worship services, or any form of proselytization.”

Bowman claims the regulation violates the express

language of the enabling legislation and is

unconstitutional on its face and as applied to him in

violation of his Fifth Amendment Equal Protection

rights. The district court dismissed his complaint for

failure to state a claim. Bowman now appeals that

dismissal.! Because we find the regulation is

consistent with the enabling statute and does not

violate Bowman's equal protection rights, we

AFFIRM.

BACKGROUND

Bowman served in the United States Air Force

from September, 1977 until January, 1996, when he

took an early retirement as part of a reduction in

force. Bowman received a final rank of Technical

Sergeant. Because Bowman was just a few years shy

of the twenty-years required for a full retirement, he

was eligible to participate in a program (“Program”)

allowing him to perform community service that

would be counted toward his years of military service

for retirement. The Program was provided by the

1 Two amicus briefs have been filed. Americans United for

Separation of Church and State (AUSCS) has filed an

amicus brief in support of the government. The National

Legal Foundation (NLF) has filed an amicus brief in

support of Bowman.

National Defense Authorization Act for Fiscal Year

1993 which directed the Secretary of Defense to

“implement a program to encourage members and

former members of the armed forces to enter into

public and community service jobs after discharge or

release from active duty.” See Pub.L. No. 102-484, §

4462(a)(1), 106 Stat. 2702, 2741 (1992), codified at10

U.S.C. § 1143a (“Statute”). Section 1143a is entitled

“Encouragement of postseparation public and

community service.” The Statute defines “public

service organizations” as organizations providing

school services and education administration, law

enforcement, public health care, social services and

“{alny other public or community service.”10 U.S.C §

1143a(g).

The Secretary of Defense promulgated

regulations for the Community Service Program. 32

C.F.R. §§ 77.1-77.6. The Program authorized service

members who retired from active duty with at least

15 but fewer than 20 years of service to accrue

additional retirement credit for work in a qualified

public or community service organization. 32 C.F.R. §

77.3(c). The regulations permit qualified former

military personnel to accrue additional service credit

for retirement through employment with “public or

community service organization(s] that provide the

services listed in sections 77.3(d)(1) through (d)(12).”

32 C.F.R. § 77.4(b)(2). Section 77.3(d) paints with a

2 Section 1143a is a section of the Defense Conversion,

Reinvestment, and Transition Assistance Act of 1992 (the

“Act”), which was Division D of the National Defense

Authorization Act for Fiscal Year 1993.Pub.L. 102-484

very broad brush the types of public and community

service organizations for which retirement credit is

allowed:

(d) Public and community service organization.

Government or private organizations that provide or

coordinate the provision of the following services|[:]

(1) Elementary, secondary, or post secondary school

teaching or administration.

(2) Support of teachers or schoo] administrators.

(3) Law enforcement.

(4) Public health care.

(5) Social services.

(6) Public safety.

(7) Emergency relief.

(8) Public housing.

(9) Conservation.

(10) Environment.

(11) Job training.

(12) Other public and community service not listed

previously, but consistent with or related to services

described in paragraphs (d)(1) through (11) of this

section.

32 C.F.R. § 77.3(d)(1)-(12). The regulations bar credit

toward retirement for employment with

“organizations engaged in religious activities, unless

such activities are unrelated to religious instructions,

worship services, or any form of proselytization.”32

C.F.R. § 77.3(a). The regulations also exclude

“businesses organized for profit, labor unions, [and]

partisan political organizations.” Id.

At the time of his retirement, Bowman had 17

years and three months of service in the Air Force.

After retiring from the Air Force, Bowman began

employment with the People's Church of C & MA

(“Church”) in Geneva, Ohio, first as a lay intern, and

later as a youth minister. He does not dispute that

his duties included religious instructions, worship

services, or proselytization. The complaint does not

elaborate on what his duties were either as a lay

intern or as a youth minister. Bowman was employed

with the Church continuously from his retirement

until February, 2001. Bowman contends that this

employment should be counted toward his years of

service so that he is entitled to a full retirement.

According to his complaint, if he were granted the

retirement credit for his work as a youth minister, he

would be entitled to receive 50 percent of his base

military pay upon reaching the age of 62, as opposed

to receiving only 42 percent of his base military pay.

The complaint does not quantify the money

difference.

Bowman alleges that he filed for military

service credit under the Program “late in the year

1998,” again in November, 2002, and again in

October, 2004, this time with the assistance of

counsel, by submitting a Validation of Public or

Community Service Employment Form to _ the

Defense Manpower Data Center. Neither plaintiff

nor his counsel has ever received a response. Plaintiff

alleges that his request for creditable service has not

been granted or even processed because the form

shows that his employment was with a religious

organization. Bowman alleges that the exclusion of

employment with organizations engaged in religious

activities from qualification for creditable early

retirement under the Program conflicts with the

broadly drafted enabling legislation, 10 U.S.C. §

1143a, and is unconstitutional on its face and as

applied to him in violation of his Fifth Amendment

Equal Protection rights.

ANALYSIS

A. Standard of Review

Whether or not a district court properly

dismissed a complaint for failure to state a claim

under Rule 12(b)(6) is subject to de novo review.

Ass'n of Cleveland Fire Fighters v. City of Cleveland,

502 F.3d 545, 548 (6th Cir.2007). Under the Supreme

Court's recent articulation of the Rule 12(b)(6)

standard in Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 127 S.Ct. 1955, 1964-65 (2007), the Court must

construe the complaint in favor of the plaintiff, accept

the allegations of the complaint as true, and

determine whether plaintiffs factual allegations

present plausible claims. To survive a Rule 12(b)(6)

motion to dismiss, plaintiff's pleading for relief must

provide “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action will not do.” Ass'n of Cleveland Fire Fighters,

502 F.3d at 548 (quoting Twombly, 127 S.Ct. at 1964-

65).

An agency must interpret its implementing

legislation in a reasonable manner and may not

“promulgate regulations in a manner that are

arbitrary or capricious in substance, or manifestly

contrary to the statute.” Clark Reg'l Med. Ctr. v.

United States Dep't of Health & Human Res., 314

F.3d 241, 244-45 (6th Cir.2002). Where Congress

empowers an agency to enact rules and regulations

necessary to carry out an Act, those regulations are

to be upheld “so long as [they are] reasonably related

to the purposes of the enabling legislation.“ Jackson

v. Richards Med. Co., 961 F.2d 575, 585 (6th

Cir.1992) (quoting Mourning v. Family Publ'ns Serv.,

Inc., 411 U.S. 356, 369 (1973)).

B. The regulation comports with the statute

and Congressional intent

Bowman argues that the regulatory exclusion

in 32 C.F.R. § 77.3(a) is not authorized by the

enabling legislation, 10 U.S.C. § 1143a, and is

contrary to the purpose and intent of Congress in

establishing the Program. The government, on the

other hand, argues that the regulatory exclusion is

authorized by § 1143a, is supported by the legislative

history, and is entitled to substantial deference

under Chevron U.S.A., Inc. v. Nat'l Res. Def. Council

Inc., 467 U.S. 837, 844 (1984). For the reasons

discussed below, the district court properly held that

the regulatory exclusion contained in 32 C.F.R. §

77.3(a) is consistent with the authorization provision

of 10 U.S.C. § 1143a.

In deciding whether the regulatory exclusion conflicts

with the statutory enactment, 10 U.S.C. § 1143a(g),

the proper starting point is the enabling legislation

itself. 10 US.C. § 1143a(a) provides:

1143a. Encouragement of

postseparation public and

community service

(a) In general. The Secretary of

Defense shall implement a program to

encourage members’ and _é$ former

members of the armed forces to enter

into public and community service jobs

after discharge or release from active

duty.

Id. This enabling legislation gives the Secretary

broad power to implement the Program. Congress

defined community service organizations as set forth

below:

(g) Definitions.-In this section, the

term “public service and community

service organization” includes’ the

following organizations:

(1) Any organization that provides the

following services:

(A) Elementary, secondary, or

postsecondary school teaching or

administration.

(B) Support of such teaching or school

administration.

(D) Public health care.

(EF) Social services.

(F) Any other public or community

service.

(2) Any nonprofit organization that

coordinates the provision of services

described in paragraph (1).

The statute is silent on the issue of whether or not

work for a religious organization is exempt. The

Secretary's challenged regulation, 32 C.F.R. § 77.3(a),

allows early retirees to participate in the Program

when they work for nonprofit organizations engaged

in religious activities “if the activities are unrelated

to religious instructions, worship services, or any

form of proselytization.”

Bowman contends that Congress would have

spoken on the issue if it had intended to exclude

certain work in religious activities as it has done so

explicitly in other legislation. For example, Bowman

cites to three statutes that the district court relied

upon in its analysis that the regulatory exclusion was

needed to avoid a viclation of the Establishment

Clause of the First Amendment. Bowman v. United

States, 512 F.Supp.2d 1056, 1069 (N.D.Ohio 2007). In

each of those Acts, Congress specifically prohibited

government funds from being used for sectarian

purposes. See 42 U.S.C. § 300X-65(i) (“No funds

provided through a grant or contract to a religious

organization to provide services under any substance

abuse program under this subchapter or subchapter

10a

III-A of this chapter shall be expended for sectarian

worship, instruction, or proselytization”); 29 U.S.C. §

2938(a)(3) (“Participants shall not be employed under

this chapter to carry out the construction, operation,

or maintenance of any part of any facility that is used

or to be used for sectarian instruction or as a place

for religious worship”); and 42 U.S.C. § 9920(c) (“No

funds provided directly to a religious organization to

provide assistance under any program described in

subsection (a) of this section shall be expended for

sectarian worship, instruction, or proselytization”).

Bowman argues that because Congress has explicitly

forbidden using public funds to support a religious

organization for sectarian worship, instruction, or

proselytization in other instances, the fact that it did

not do so under § 1143a must be construed to mean

that Congress did not intend for any restriction to

apply. Bowman makes too much of Congressional

silence.

Congress endowed the Secretary with broad

discretion to adopt’ eligibility critena for

participation. The government contends that drawing

an inference from Congressional _ silence is

inappropriate because the Secretary's regulations

reasonably construe statutory terms left undefined

by Congress in a manner supported by the legislative

history. The government argues that an inference

may not be drawn from Congressional silence where

the inference “is contrary to all other textual and

contextua] evidence of congressional] intent.” Burns

v. United States, 501 U.S. 129, 136 (1991). The

government contends that since the enabling statute

lla

specifically allows the Secretary to define the

activities which qualify for a retirement credit, the

Secretary is entitled to substantial deference for

those regulations. In Chevron, the Court held that

where Congress has explicitly given an agency the

power to elucidate a specific provision of a statute by

regulation, the regulation must be upheld unless it is

“arbitrary, capricious, or manifestly contrary to the

statute.” 467 U.S. at 844.

The first question for the Court in deciding

whether or not the Secretary's interpretation of §

1143a as set forth in 36 C.F.R. § 77.3(a) is

permissible is “‘whether Congress has directly

spoken to the precise question at issue’ by employing

precise, unambiguous statutory language.” Alliance

for Cricy. Media v. F.C.C., 529 F.3d 763, 776-77 (6th

Cir.2008) (quoting Chevron, 467 U.S. at 842). Where

Congress has spoken in unambiguous terms, the

inquiry ends and the court must “give effect to the

unambiguously expressed intent of Congress.”

Jewish Hosp., Inc. v. Sec'y of Health & Human

Servu's, 19 F.3d 270, 273 (6th Cir.1994). Congress's

definition of “public and community _ service

organization” is vague and leaves a gap for the

Secretary to fill. This is especially true given the

myriad of organizations, public and private, offering

various services of value to the community.

Since § 1143a(g) is ambiguous, the second

prong of the Chevron analysis comes into play, and

the Court must determine if the Secretary's

interpretation of the statute is reasonable. Alliance

12a

for Cmty. Media, 529 F.3d at 778. The Court is

guided by the specific language of the provision at

issue and its legislative history. Jd. The second

Chevron prong requires the court to decide if the

regulation represents a “permissible construction of

the statute,” and substantial] deference is given to the

agency's interpretation. Estate of Gerson v. Comm'r

of Internal Revenue, 507 F.3d 435, 438 (6th Cir.2007),

cert. denied, --- U.S. ----, 128 S.Ct. 2502 (2008)

(quoting Chevron, 467 U.S. at 842-43); Harris v.

O!szewski, 442 F.3d 456, 466 (6th Cir.2006).

The government argues that the exemption is

compelled by Congressional intent to benefit only a

very narrow’ class of community _ service

organizations, namely, those involved in education,

law enforcement, and health care. The district court

based its decision on this. distinction. The

government relies on the Senate Report which

specifically provides that the purpose of the

legislation is to “authorize active duty personnel who

are approved for early retirement to accrue

additional military retirement credit if they take

critical jobs, such as in education, law enforcement,

and health care.*"Senate Committee on Armed

Services, National Defense Authorization Act for

Fiscal Year 1993, S.Rep. No. 102-352, at 202 (1992).

The government contends that the emphasis on

“critical job vacancies” in “education, law

enforcement, and health care,” is in harmony with

the Secretary's exclusion of work for a religious

organization if it involves “religious instructions,

worship services, or any form of proselytization.”

l3a

Bowman, however, asserts that the exclusion

is at odds with the expansive language of § 1143a(g)

which includes credit for organizations involved in

“social services” and “any other public or community

service.” Nothing in the legislative history suggests

that Congress intended to encourage retirees to

accept positions which would involve “religious

instructions, worship or proselytization.” Similarly,

nothing in the text of the statute itself suggests that

Congress intended to benefit this kind of activity.

Under these circumstances, deference is owed to the

Secretary of Defense who, through his regulations,

has excluded from § 1143a(g)'s definition of service

all activities involving “religious instructions,

worship or proselytization.” Accordingly, the district

court properly held that the regulatory exclusion

contained in 32 C.F.R. § 77.3(a) does not violate 10

U.S.C. § 1143a(g).3

C. The regulation does not violate Bowman's

right to equal protection

3 Bowman argues, by way of a footnote, that his allegation

that his work as a youth minister constituted “public and

community service” within the meaning of 10 U.S.C. §

1143a(g) must be taken as true for purposes of a Rule

12(b)(6) motion. Bowman is incorrect. His allegation is not

a factual assertion but a legal conclusion which we need

not accept. See e.g., Gahafer v. Ford Motor Co., 328 F.3d

859, 861 (6 Cir. 2003); Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 12 (6t» Cir. 1987).

l4a

The district court also dismissed Bowman's

complaint on the grounds that 32 C.F.R. § 77.3(a) did

not violate his equal protection claim both on its face

and as applied to him. Since Bowman did not set

forth any facts challenging the application of the

statute to him, the district court properly found that

his as-applied and facial claims were one and the

same and analyzed them as such. The district court

correctly recognized that equal protection applies to

the federal government through the Due Process

Clause of the Fifth Amendment. Bolling v. Sharpe,

347 U.S. 497, 500 (1954). The Equal Protection

Clause “protects against arbitrary classifications, and

requires that similarly situated persons be treated

equally.” Jackson v. Jamrog, 411 F.3d 615, 618 (6th

Cir.2005) (quotations omitted).

1. Strict Scrutiny

Bowman argues that his challenge of the

constitutionality of the exclusion is subject to strict

scrutiny because the exclusion is a classification

based on religion and burdens his free exercise of

religion. To survive strict scrutiny analysis, the

regulation must be narrowly tailored to advance a

compelling governmental interest. An _ equal

protection claim is subject to rational basis review

unless it involves infringement of a fundamental

right or application to a suspect class. City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440

(1985). Unless the Program violates Bowman's

fundamental right to exercise his religion, it must be

upheld as long as it bears a “rational relationship to

15a

a legitimate state interest.” Jamrog, 411 F.3d at 618.

Strict scrutiny applies where the classification

affecting eligibility for benefits is based on religion or

burdens the exercise of religion. See McDaniel v.

Paty, 435 U.S. 618, 628 (1978). The First Amendment

provides: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof.” U.S. CONST. amend. I. Laws

intended to advance or inhibit religion, or having

either effect, generally violate the Establishment

Clause. Agostini v. Felton, 521 U.S. 203, 222-23

(1997).

On appeal, Bowman relies primarily on two

Supreme Court cases in support of his argument that

strict scrutiny analysis applies to his equal protection

claim. First, he relies on McDaniel, in which the

Supreme Court struck down a law prohibiting

ministers from participating as delegates. or

representatives in state constitutional conventions.

The Court applied strict scrutiny analysis because

the law prohibiting ministers from serving as

delegates and legislators at state constitutional

conventions pitted plaintiff's constitutional right to

the free exercise of his religion against his

constitutional mght to seek and hold public office. See

Id. at 626.The district judge ruled that McDaniel did

not apply because the regulation in dispute does not

involve Bowman's right to participate in the political

affairs of the community. 512 F.Supp.2d at 1066. In

fact, the Supreme Court's recent decision in Locke v.

Davey, 540 U.S. 712, 720 (2004), supports this

interpretation. In Locke, the Court upheld the State

16a

of Washington's constitutional prohibition against

using a state scholarship toward a degree in

devotional theology and distinguished McDaniel on

the basis that the prohibition at stake was much less

onerous than denial of a minister's right to

participate in the political affairs of the community.

Id. at 720, 725.

Bowman also relies on Sherbert v. Verner, 374

U.S. 398 (1963) to support his argument that strict

scrutiny analysis applies to his constitutional

challenge to 32 C.F.R. § 77.3(a). In Sherbert, the

Court held that the denial of unemployment benefits

to a person because her religious beliefs prevented

her from working on Saturday constituted a burden

on the exercise of religion that must be supported by

a compelling state interest. Jd. at 403-06.Since

Sherbert was decided, the Supreme Court has held

that the government cannot deny a public benefit

based on a worker's religious beliefs in a number of

employment cases. See Hobbie v. Unemployment

Appeals Comm'n. of Florida, 480 U.S. 136 (1987)

(strict scrutiny test applied to Florida's refusal to

award unemployment compensation to claimant who

was discharged for refusing to work on her Sabbath);

Thomas v. Review Bd. of Indiana Employment Sec.

Div., 450 U.S. 707 (1981) (strict scrutiny test applied

to Indiana's refusal to pay unemployment

compensation to Jehovah Witness who quit his job

after his employer required him to make

armaments).

The facts of this case are markedly distinct

from the situation presented in Sherbert and its

progeny. Here, Bowman need not choose between

exercising his religious beliefs and receiving a

governmental benefit. He worked as a youth minister

for pay and any loss of an incremental increase in his

retirement pay burdened him much less than losing

unemployment compensation altogether.

In Locke, the Supreme Court addressed the

question of whether Washington's constitution, which

prohibits public funding for any religious worship,

exercise or instruction, as applied to bar state

scholarships for degrees in devotional theology,

violated the Free Exercise Clause. Jd. at 719. In

addressing this question, the Supreme Court noted

that if the State of Washington chose to allow private

recipients to use their state scholarship to pursue a

degree in devotional theology, there would be no

violation of the Federal Constitution. Jd. at 719.The

Ninth Circuit had ruled that the exclusion of

scholarships for devotional theology degrees was

subject to strict scrutiny because the state had

singled out religion for unfavorable treatment. 7d. at

718. Under strict scrutiny analysis, the Ninth

Circuit ruled that the exclusion must be “narrowly

tailored to achieve a compelling state interest.” Id.

The Ninth Circuit determined that the state's

interest in avoiding a violation of the Establishment

Clause was not compelling and held that the

scholarship program was unconstitutional. 7d.

18a

The Supreme Court reversed, finding that

prohibiting the funding of devotional degrees did not

evince any religious animus toward religion. Jd. at

725.The rationale for this conclusion is that the

exclusion did not prohibit students from attending

religious schools or even from taking devotional

theology courses, but only barred students from

pursuing a vocation in the clergy. Jd. at 721.The

Supreme _ found that excluding state funding of

training for a religious profession is in keeping with

the state's antiestablishment interests. Jd. at 723-

25.In reaching this conclusion, the Court reviewed

several of its prior decisions in which it found laws in

violation of the Free MLxercise Clause and

distinguished them. 7d. at 725 (citing Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520

(1993) (criminalizing religious ritual of animal

sacrifice violates Free Exercise clause); McDaniel,

supra (law denying ministers the right to participate

in political affairs of the community

unconstitutional). The Locke Court further ruled that

the exclusion did not require students to choose

between exercising their religious beliefs and

receiving a government benefit, as the students were

free to pursue a secular degree while obtaining a

religious degree. Jd. at 720-21 (distinguishing

Hobbie, supra; Thomas, supra; and Sherbert, supra ).

The Supreme Court ruled that the “State has

merely chosen not to fund a distinct category of

instruction” and found that decision permissible. Jd.

at 721. Although the Washington Constitution drew

“a more stringent line than that drawn by the United

19a

States Constitution,” id. at 722, the Court still found

the State of Washington's interest in avoiding the

establishment of religion and its concomitant interest

in avoiding funding for devotional degrees, to be

“historic and substantial.” Jd. at 725. In Locke, the

Supreme Court found that Washington's “historic

and substantial” interest in avoiding an

establishment of religion allowed it to choose not to

fund training for religious professions, even where

such funding would not violate the Establishment

Clause. Id. at 725.

As in Locke, Bowman has not shown that his

fundamental right to the free exercise of his religion

has been violated. He was free to work as a youth

minister but could not have that work count toward

his military retirement. The regulation at issue here,

32 C.F.R. § 77.3(a), not only excludes work for

religious organizations that “are unrelated to

religious instructions, worship services, or any form

of proselytization,” but also excludes all work for

“businesses organized for profit, labor unions, and

partisan political organizations.” The breadth of the

exclusion suggests that the Secretary was not

discriminating along religious lines.

As AUSCS points out in its amicus brief, this

case is most analogous to the Supreme Court's

opinion in Johnson v. Robison, 415 U.S. 361 (1974).

In Johnson, a religiously-motivated conscientious

objector to the Vietnam War sought but was denied

educational benefits for veterans. Jd. at 362-64. By

statute, the government provided educational

20a

funding to veterans who had served on “active duty”

in Vietnam. Id. at 363.The conscientious objector was

able to avoid the draft pursuant to a regulation which

allowed him to perform “alternative civilian service.”

Id. at 366, n. 1. He completed two years of alternative

civilian service work at a hospital. Jd. at 364.He then

brought suit alleging that his hospital service work

should be counted as “active duty” toward the

educational benefits and that its exclusion violated

his First Amendment right to the free exercise of his

religion and violated his right to equal protection

under the Fifth Amendment. 7d. at 365.

The Supreme Court addressed the question of

whether the law limiting the class of persons entitled

to veterans’ educational benefits to those individuals

who actually served in the Armed Forces, and not to

those who performed “alternative civilian service” as

conscientious objectors, violated the appellee's equal

protection rights. Jd. at 374.The Court applied the

rational-basis test, over appellee's argument that

strict scrutiny should apply, and ruled that Congress

had a legitimate interest in treating those men and

women who served their country through active duty

in the military differently from those who served in

civilian life as alternative service performers. Jd. at

374 n. 13, 381-82. The Court identified Congress's

legitimate public interest in attracting men and

women to serve in the military, to provide them with

incentives to give up educational and employment

opportunities to do so, and to assist them in their

return to civilian life, as a sufficient reason to satisfy

the rational-basis test. Id. at 376-82.

2la

The conscientious objector argued that denying

his claim to veterans’ educational benefits amounted

to a violation of his right to exercise his religion

freely because it increased the price he must pay to

adhere to his religious beliefs. Jd. at 383.The Court

disagreed, finding that the “withholding of

educational benefits involves only an incidental

burden upon appellee's free exercise of religion-if,

indeed, any burden exists at all.” Jd. at 385.The

Court then looked at Congressional intent, which was

aimed at rewarding those who served in active duty

and assisting them in returning to civilian life, not to

any legislative purpose to interfere with the free

exercise of religion. Id.

Similarly, in this case, the Secretary's

exclusion of different types of work from the

definition of “community service” was not intended to

interfere with the free exercise of religion. The

withholding of a retirement credit for Bowman's

work as a youth minister does not burden his right to

practice or adhere to his religious beliefs. The district

court properly held that strict scrutiny did not apply

because the regulation did not interfere with

Bowman's fundamental right to exercise his religion

and was not motivated by animosity against religion.

2. Rational Basis Scrutiny

Having found that 32 C.F.R. § 77.3(a) does not

interfere with Bowman's right to freely exercise his

religious beliefs and that he is not a member of a

22a

suspect class, the rational basis test applies to the

question of whether the exclusion may be upheld.

Jamrog, 411 F.3d at 618 (citing Cleburne Living Ctr.,

473 U.S. at 500). Rational basis review is extremely

deferential. “[A] statutory classification that neither

proceeds along suspect lines nor _ infringes

fundamental constitutional rights must be upheld

against equal protection challenge if there is any

reasonably conceivable state of facts that could

provide a rational basis for the classification.” FCC

v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993).

Under the rational-basis test, the question is whether

the regulation at issue is “rationally related to

legitimate government interests.” Doe v. Michigan

Dep't of State Police, 490 F.3d 491, 501 (6th Cir.2007)

(quoting Washington v. Glucksberg, 521 U.S. 720, 728

(1997)). “[Clourts hold statutes unconstitutional

under this standard of review only in rare or

exceptional circumstances.” Jd. Although the

standard is quite liberal, a classification “must be

reasonable, not arbitrary, and must rest upon some

ground of difference having a fair and substantial

relation to the object of the legislation, so that all

persons similarly circumstanced shall be treated

alike.” Johnson, 415 U.S. at 374-75 (quoting F-S.

Royster Guano Co. v. Virginia, 253 U.S. 412, 415

(1920), and citing Reed v. Reed, 404 U.S. 71, 75-76

(1971)). For the reasons set out below, the regulation

withstands the deferential rational-basis test.

The government argued before the district

court that the regulation in dispute, 10 C.F.R. §

77.3(a), met the rational basis test for two reasons.

23a

First, the government argued that the regulation

comports with the alleged sole purpose of the statute,

10 U.S.C. § 1143a(g), to fill critical needs in public

service organizations limited to those involving law

enforcement, education, and public health. Secondly,

the government argued that the regulation was

rationally related to the government's interest in

avoiding an Establishment Clause violation. The

district court held that the exemption of 32 C.F.R. §

77.3(a) withstood rational basis scrutiny under both

arguments. The government has now abandoned the

Establishment Clause violation argument; thus, this

court need not address it.

The district court did not err in holding that

the regulatory exclusion was necessary to comport

with Congressional intent to limit community service

credit to those serving in education, law enforcement,

and public health. The government posits that the

regulations easily pass scrutiny under the rational-

basis test since they limit the class of activities that

can support a group of a PACs retirement credit to

the group Congress identified. Nothing in the statute

itself or the legislative history suggests that a

retirement credit should be given for a retiree whose

work for a religious organization involves religious

instructions, worship or proselytization. As the

district court properly found, the regulation is

rationally related to limiting the retirement credit to

jobs which fill “critical needs” in the community, such

as in education, law enforcement, and health care.

CONCLUSION

24a

The regulation, 32 C.F.R. § 77.3(a), conforms

with the definition of “community service” set forth in

the statute, 10 U.S.C. § 11438a(g), and with

Congressional intent. Accordingly, the district court's

dismissal of plaintiff's complaint is AFFIRMED.

The regulation easily survives rational basis

review. It is not arbitrary and capricious in its

exclusion of certain’ religious activities. The

exemption serves the legitimate governmental

interest of avoiding the mere appearance of excessive

governmental entanglement with religion. Thus, the

district court’s ruling that the regulation does not

violate Bowman's equa! protection rights hereby is

AFFIRMED.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LINDEN D. BOWMAN, } Case No.: 1:06 CV 1323

Plaintiff ) JUDGE SOLOMON

) OLIVER, JR.

V. )

UNITED STATES OF )

AMERICA, et al. )

Defendants ) ORDER

Pending before the court is Defendants United

States of America, et al. (collectively, “Defendants”)

Motion to Dismiss for lack of subject matter

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for

failure to state a claim upon which relief can be

granted pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No.

12.) For the foregoing reasons, the Fed.R.Civ.P.

12(b)(1) motion to dismiss is denied, and the

Fed.R.Civ.P. 12(b)(6) motion is granted.

I. FACTS AND PROCEDURAL HISTORY

On October 23, 1992, Congress passed Pub.L.

102-484, codified in 10 U.S.C. § 1143a, directing the

Secretary of Defense to “implement a program to

encourage members and former members of the

armed forces to enter into public and community

service jobs after discharge or release from active

duty.” 10 U.S.C. § 1148a(a). Pursuant to this

authority, the Secretary of Defense promulgated 32

C.F.R. §§ 77.1-.6, the Program to Encourage Public

and Community Service (“Program”). Section

26a

77.4(b)(2) permits qualified former military personnel

to accrue additional service credit for retirement

through employment with “public or community

service organization[s] that provide the services

listed in sections 77.3(d)(1) through (d)(12).”!. The

Program, however, excludes “organizations engaged

in religious activities, unless such activities are

132 C.F.R. § 77.3(d), (e) defines a “public and community

service organization” as follows:

Government or private organizations that provide

or coordinate the provision of the following

services:

(1) Elementary, secondary, or post secondary

school teaching or administration.

(2) Support of teachers or school administrators.

(3) Law enforcement.

(4) Public health care.

(5) Social services.

(6) Public safety.

(7) Emergency relief.

(8) Public housing.

(9) Conservation.

(10) Environment.

(11) Job training.

(12) Other public and community service not listed

previously, but consistent with or related to

services described in paragraphs (d)(1) through

(11) of this section.

(e) Public service employment. Work in a Federal,

state or local government organization which

provides or coordinates’ services. listed in

paragraphs (d)(1) through (12) of this section.

27a

unrelated to religious instructions, worship services,

or any form of proselytization.” 32 C.F.R. § 77.3(a). It

also excludes “businesses organized for profit, labor

unicns, {and} partisan political organizations.” 7d.

Plaintiff served in the United States Air Force

from September, 1977, until he retired in January,

1996. (Am. Compl. 4 18, 20, ECF No. 21.) Plaintiff

maintains that he retired with approximately

seventeen years and three months of service. (Ud. {

20.) Plaintiff further states that he began

employment with the People's Church of the C & MA

(“Church”) in Geneva, Ohio in January, 1996, as a lay

intern and later as a youth minister and that he was

continuously employed with the Church until

February, 2001. dd. J 21-22.)

Plaintiff filed this lawsuit on May 30, 2006.

(Comp., ECF No. 1.) In his Amended Complaint,?

2 On December 27, 2007, Plaintiff filed a Motion to Amend

the Compiaint (ECF No. 15), together with a proposed

First Amended Complaint. (ECF No. 15-1.) In Plaintiff's

Motion to Amend, he sought to add the following

paragraph:

Late in the year 1998, the Plaintiff

prepared and submitted to the Director,

Defense Manpower Data Center ..., in Fort

Ord, California a Validation of Public or

Community Service Employment form

requesting his employment with the

People's C & MA Church starting January

1, 1996, be credited toward his years of

service with the military under the

28a

Plaintiff alleges that he filed for military service

credit under the Program “late in the year 1998,”

again in November 2002, and once more in October,

2004, by submitting a Validation of Public or

Community Service Employment Form (“Validation

Form”) to the Defense Manpower Data Center

(“DMDC”). (Am.Comp.{]J 24-26.)

Plaintiff alleges that “the reason his request

for creditable service under the [Program] has not

been granted and/or processed is because the form

shows on its face that the Plaintiff's employment was

with a religious organization and so the employment

does not qualify under [32 C.F.R. § 77.3(a)j.”

(Am.Comp.{ 27.) Plaintiff also cursorily alleges that

he “engaged in public and community service of the

kind described in 10 U.S.C. § 1143a(g) and 32 C.F.R.

S 77.3(d).”. (Am.Compl.J 23.) Plaintiff, however,

acknowledges that “because of the provisions of 32

C.F.R. § £°.77.3(a) providing that nonprofit

organizations ‘engaged in religious activities' may not

be considered a qualifying organization under the

[Program], any application ... for creditable service

based upon his employment by [the Church] between

Community Service Program. The Plaintiff

never received any response to this 1998

application for service credits under the

Community Service Program.

(Mot. to Amend at 1.) The court granted Plaintiff's Motion

to Amend on July 20, 2007. (See Order, ECF No. 20.)

Plaintiff filed the Amended Complaint on July 2, 2007.

(Am. Comp., ECF No. 21).

29a

from [sic] January 1, 1996 and February 28, 2001

would be denied because the activities of the church

were related to religious instruction and worship

services.” (Am.Comp.{{ 28.)

Plaintiff states that the exclusion contained in

32 C.F.R. § 77.3(a)“is not authorized by 10 U.S.C. §

1148a(g) and is contrary to the purpose and intent of

Congress.” (id. ¥ 33.) Additionally, Plaintiff alleges

that the regulation's provision barring an early

retiree from earning credit toward military service if

he works for a religious organization and performs

activities related to religious instructions, worship

services, or proselytization is unconstitutional on its

face and as applied to Plaintiff. (Jd. ] 31-32.)

Plaintiff asks that the court declare that the

exclusion contained in 32 C.F.R. § 77.3(a) is

unconstitutional on its face and as applied to

Plaintiff. Ud. at 9.) Plaintiff also asks that

Defendants be permanently enjoined from enforcing

or applying the exclusion contained in 32 C.F.R. §

77.3(a). Ud. at 9.) Finally, Plaintiff asks the court to

issue a mandatory injunction directing Defendants to

amend Plaintiff's records to indicate he performed

public and community service creditable toward his

military retirement pension and benefits, based on

twenty years of service (Jd. at 9.)

On November 21, 2006, Defendants filed the

pending Motion to Dismiss. (ECF No. 12.). In its

Motion, Defendants argue: (1) this court lacks subject

matter jurisdiction because Plaintiff lacks Article III

and prudential standing; (2) this court lacks subject

matter jurisdiction because Plaintiff's as-applied and

facial Equal Protection challenges to 32 C.F.R. $

77.3(a) are barred by the statute of limitations; and

(3) Plaintiff fails to state a claim upon which relief

can be granted because the regulation would violate

the Establishment Clause if it did not contain

language excluding an early military retiree from

earning retirement credit if he works for a religious

organization and performs activities related to

religious instructions, worship services, or any form

of proselytization. (Mot. to Dismiss at 7, 8, 11.).

Plaintiff filed an Opposition to Defendants’

Motion to Dismiss on December 26, 2006. (PI.'s Mot.

Opp'n, ECF No. 14.). In his Opposition, Plaintiff

argues: (1) he has Article III and prudential standing

because he timely submitted his application for

benefits; (2) his claim is not barred by the statute of

limitations because his cause of action never accrued

as there was never a final agency action rendered on

his application; and (3) the regulation would not

violate the Establishment Clause if it allowed an

early retiree to earn military retirement credit for

working at a religious organization and performing

religious activities related to religious instructions,

worship services, and proselytization. (Jd. at 4-9.)

Il. STANDARD FOR DISMISSAL

A defendant may challenge the court's subject

matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1). The plaintiff has the burden of proving the

3la

court's subject matter jurisdiction. Rogers v.

Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). In

the context of a Rule 12(b)(1) motion, “[a] court may

dismiss a complaint only if it is clear that no relief

could be granted under any set of facts that could be

proved consistent with the allegations.” Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984) (citing

Conley v. Gibson 355 U.S. 41, 45-46 (1957).

Furthermore, a “Rule 12(b)(1) motion to dismiss will

be granted only if, taking as true all facts alleged by

the plaintiff, the court is without subject matter

jurisdiction to hear the claim.” Nawar Omeiri v.

Dist. Dir., Bureau of Citizenship and Immigration,

No. 07-11757, 2007 WL 2121998, 2007 U.S. Dist.

LEXIS 53235, at *3 (E.D.Mich. July 24, 2007) citing

Hishon, 467 U.S. at 73).

Under Fed. R. Civ. P. 12(b)(6) the court

examines the legal sufficiency of a plaintiff's claim.

See Mayer v. Mylod, 988 F.2d 635, 638 (6th

Cir.1993). Courts reviewing a 12(b)(6) motion must

accept the well-pled factual allegations of the

complaint as true and construe all reasonable

inferences in favor of the plaintiff. See Muller v.

Currie, 50 F.3d 373, 377 (6th Cir.1995). The court,

however, need not accept “conclusions of law or

unwarranted inferences cast in the form of factual

allegations.” Czupih v. Card Pak, Inc., 916 F.Supp.

687, 689 (N.D.Ohio 1996). Ultimately, a complaint

may be dismissed only if “the plaintiff undoubtedly

can prove no set of facts in support of his claim that

would entitle him to relief.” Columbia Natural Res.,

Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995).

32a

Ill. LAW AND ANALYSIS

A. Standing.

In its Motion to Dismiss, Defendants argue

that this court lacks subject matter jurisdiction

pursuant to Fed.R.Civ.P. 12(b)(1) because Plaintiff

does not have standing to bring this action (Defs.'

Mot. to Dismiss at 7.) In order to establish standing,

a plaintiff must satisfy both Article III of the U.S.

Constitution and prudential standing requirements.

1. Article III Standing.

Standing under Article III requires a plaintiff

to demonstrate: “(1) an injury in fact that is actual or

threatened; (2) a causal connection between the

defendants' conduct and the alleged injury; and (3) a

substantial likelihood that the injury will be

redressed by a favorable decision.” Huish Detergents

Inc. v. Warren County Ky., 214 F.3d 707, 710 (6th

Cir.2000) (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992)). In his Amended Complaint

Plaintiff alleges:

(b]ut for the provision of 32 C.F.R. §

77.3(a) excluding employment with

“organizations engaged in_ religious

activities” from the Community Service

Program, the Plaintiff would be entitled

to credit toward his military retirement

benefits.... [and] Plaintiff would be

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entitled to receive 50% of his base

military pay upon reaching the age of

62.

(Am.Comp.J 28, 29.). These two paragraphs

themselves satisfy Article III as they state: (1) that

Plaintiff is injured because he did not receive benefits

as a result of the classification drawn in the statute;

(2) that Defendants are responsible as the creator of

the regulation; and (3) that invalidating the statute

would permit Plaintiff to receive benefits. Therefore,

taking these allegations as true, Plaintiff satisfies

Art. ITI requirements.

2. Prudential Standing.

Under the Administrative Procedures Act

(“APA”) “all parties ‘adversely affected or aggrieved’

by a final agency action [have] prudential standing to

bring suit in federal court. 5 U.S.C. § 702. A person is

‘adversely affected or aggrieved’ within the meaning

of the APA if his or her claim meets the ‘zone of

interest’ test.” Bangura v. Hansen, 434 F.3d 487,

498-99 (6th Cir.2006) (citing NCUA v. First Nat'l

Bank & Trust Co., 522 U.S. 479, 487-90 (1998)).

Prudential standing merely requires that Plaintiff

show that “the interest he or she seeks to protect, ‘is

arguably within the zone of interests to be protected

by the statute’ under which the plaintiff sues.” /7d.

at 499 (quoting NCUA, 522 US. at 492).

The zone of interest test is a two-part inquiry:

“(flirst, the court must determine what interests the

34a

statute arguably was intended to protect, and second,

the court must determine whether the ‘plaintiff's

interests affected by the agency action in question

are among them.’ ” ZId. (quoting NCUA, 522 U.S. at

492). The Sixth Circuit has held that the prudential

standing test “is not meant to be_ especially

demanding.” Jd. (quoting Courtney v. Smith, 297

F.3d 455, 461 (6th Cir.2002)).

Defendants do not contest the first prong of

the prudential standing test. Defendants, however,

argue that Plaintiff fails to satisfy the second prong

of the prudential standing test because “[nJo final

[agency] action was taken because DMDC never

received a proper timely application to participate in

the [Program] from Plaintiff.” (Mot. to Dismiss at 7.)

Specifically, Defendants contend that Plaintiff did

not complete “all required reporting within 1 year of

the end of the enhanced retirement qualification

period as required by DODI 1340.19, 7 5.3.3.” (Id.)

As a result of Plaintiff's alleged untimely application,

Defendants contend that “[n]o final action was taken

because DMDC never received a proper, timely

application to participate in the [Program] from

Plaintiff.” (/d.).

Where, as here, a party seeks review of agency

action, the APA provides that the party must

demonstrate they have been “ ‘adversely affected or

aggrieved’ by a final agency action.” Bangura, 434

F.3d at 498-99 (emphasis added). For the purpose of

the APA, “adversely affected” and “zone of interest”

are equivalent, and “an action is final where it: (1)

marks the ‘consummation of the agency's decision-

making process; and (2) determines rights and

obligations or occasions legal consequences.” Id. at

500-01 (quoting Bennett v. Spear, 520 U.S. 154, 177-

78 (1997)). However, delay or inaction by the agency

may also constitute final action permitting an

applicant to seek review. See Natural Res. Def.

Council v. Fox, 93 F.Supp.2d 531, 538 (S.D.N.Y.2000)

(“The APA itself includes ‘failure to act’ in its

definition of ‘agency action.’”) (citing 5 U.S.C. §

551(3)); see alsoS5 U.S.C § 701(b)(2) (“ ‘agency action’

[has] the meaning [ ] given [to it] by section 551 of

this title”); Sierra Club v. Thomas, 828 F.2d 783,

793 (C.A.D.C.1987) (“Agency inaction may represent

effectively final agency action that the agency has not

frankly acknowledged”); Pub. Citizens Health

Research Group v. Com'r, FDA, 740 F.2d 21, 32

(D.C.Cir.1984) ( “At some point administrative delay

amounts to a refusal to act, with sufficient finality

and ripeness to permit judicial review.”).

Here, Plaintiff satisfies the second prong of the

prudential standing test because he has alleged

Defendants' inaction in his Amended Complaint as

well as the fact that he was adversely affected or

aggrieved by Defendants' inaction.? Specifically,

3 Plaintiff also argues that DoDI 1340.19 does not have

the force of law and consequently has no bearing on

whether his application was timely. (P].'s Mot. in Opp. at

4.) Finally, Plaintiff argues it is a reasonable inference

that the DMDC received his application “especially in

light of the common law ‘Mailbox Rule’ that the proper

36a

Plaintiff states in his Amended Complaint that he

filed a Validation Form with DMDC “late in the year

1998.” (Am.Comp.{ 24.) Plaintiff filed the Validation

Form again in November, 2002, and October, 2004.

(Am.Comp.] 25, 26.) Moreover, Plaintiff alleges that

he sent a letter with the Validation Form in October,

2004, requesting clarification as to whether his

application was denied. (Am.Compl.] 26.) Since on a

12(b)(1) motion to dismiss the court must “takl[e] as

true all facts alleged by the plaintiff,” Omeiri, 2007

WL 2121998 at *1, 2007 U.S. Dist. LEXIS 53235, at

*3 (citing Hishon, 467 U.S. at 73), it finds that

Plaintiff has complied with DoDI 1340.19 ¥ 5.3.3

because he submitted the necessary paperwork prior

to October 1, 1999, one year after his twenty-year

retirement. Plaintiff therefore fulfills the second

prong of the prudential standing testing because he

alleges in his Amended Complaint that he was

mailing of a document raises a rebuttable presumption

that it is received by the addressee.” (Jd.)

First, this court need not rule on Plaintiffs argument that

DoDI do not have the force of law because, in light of the

court's Order granting Plaintiffs Motion to Amend

Complaint (ECF No. 20), the issue of timeliness is moot.

Second, this court need not address Plaintiff's mailbox

rule argument because DoDI 1340.19 7 5.3 only requires

that Plaintiff “submit” a completed Validation Form; it

does not require that DMDC “receive” the Validation

Form. Accordingly, Defendant's contention that Plaintiff

failed to state a claim by failing to aver that DMDC

received the Validation Form is unavailing because DoDI

1340.19 ¥ 5.3, which Defendants argues is controlling

here, does not require Plaintiff to make such a claim.

37a

adversely affected or aggrieved by Defendants’

inaction. Accordingly, Defendants' argument based

on Plaintiff's lack of prudential standing is not well-

taken.

B. Statute of Limitations.

In its Motion to Dismiss, Defendants argue

that the court lacks subject matter jurisdiction

pursuant to Fed.R.Civ.P. 12(b\(1) because Plaintiff

has exceeded the statute of limitations. First,

Defendants assert that Plaintiffs as-applied [qual

Protection claim in regard to 32 C.F.R. § 77.3(a) fails

because the claim is time-barred under 28 U.S.C. §

2401(a). Second, Defendants charge that Plaintiff's

facial challenge to 32 C.F.R. § 77.3(a) fails because

Plaintiff failed to bring suit within six years after the

publication of the regulation. For the foregoing

reasons, Defendants’ arguments are not well-taken.

First, Defendants assert that Plaintiff's as-

applied claim is barred by 28 U.S.C. § 2401(a), which

states that “[e]very civil action commenced against

the United States shall be barred unless the

complaint is filed within six years after the right of

action first accrues.” Defendant argues that Plaintiff

failed to submit a timely application pursuant to

DoDI 1340.19 7 5.3.3, which required Plaintiff to file

for military service credit no later than one year after

the end of the enhanced retirement qualification

period that is synonymous with the twenty year-

point. (Defs.' Mot. to Dismiss at 10) (citing DoDI

1340.19 J 5.3.3). Defendants argue that because

38a

Plaintiffs twenty-year point is October 1, 1998, the

statute of limitations on his cause of action accrued

on October 1, 1999. (Def. Mot. To Dismiss at 10).

Defendants therefore assert that the statute of

limitations expired on October 1, 2005, and Plaintiff's

suit is time-barred because he filed this cause of

action on May 30, 2006. (/d. at 11.).

Plaintiff contends that the statute of

limitations has not yet expired because DMDC never

acknowledged his application or rendered a decision

on its merits. (Pl.'s Opp'n at 6-7, ECF No. 14.)

Plaintiff alleges that a claim “accrues at the time of

the final agency decision, or the exhaustion of all

administrative remedies.” (Jd. at 6.) Plaintiff

concludes that until there is a final agency decision,

his cause of action does not accrue, nor does the six-

year statute of limitations begin to run. (/d.)

As noted previously, Plaintiff has alleged that

he properly filed his application within one year of

his twenty-year point pursuant to DoDI 1340.19 J

5.3.3. Additionally, the court has determined that

eight years of inaction constitutes a final agency

action. Although the court will not specify an exact

date on which the agency action was final, the court

finds that his cause of action accrued at least after

the date he submitted his final application in 2004.

Therefore, even assuming that Plaintiff's cause of

action accrued the day he filed his last application,

the six-year statute of limitations would not expire

until 2010. Taking Plaintiff's allegations as true, and

construing all reasonable inferences in his favor, the

39a

court finds that the statute of limitations on his

cause of action has not expired.

Second, citing Dunn-McCampbell Royalty

Interest, Inc. v. National Park Service, 112 F.3d 1283,

1287 (5th Cir.1997), Defendant argues that Plaintiff's

facial Equal Protection challenge is time-barred

because Plaintiff failed to file within six years after

32 C.F.R. § 77.3 appeared in the Federal Register.

(Defs.' Mot. To Dismiss at 11.) The Defendants claim

that “[sJince 32 C.F.R. § 77.3 appeared in the Federal

limitations ran on August 10, 2000. (/d.)

In Dunn-McCampbell, the plaintiff brought

facial and as-applied challenges against the

defendants' oil and gas right regulations promulgated

in 36 C.F.R. § 9B. The court stated that “[o]n a facial

challenge to a regulation, the limitations period

begins to run when the agency publishes the

regulation in the Federal Register.” Jd. at 1287

(citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380,

384 (1947)). However, the court noted that “it is

possible ... to challenge a regulation after the

limitations period nas expired, provided that the

ground for the challenge is that the issuing agency

exceeded its constitutional or statutory authority.”

Id. (emphasis added). Furthermore, the court posited

that “an agency's application of a rule to a party

creates a new, six-year cause of action to challenge

the agency's constitutional or statutory authority.”

Id. The plaintiff in Dunn-McCampbell, however,

could not prove that there was any application of the

40a

statutes in order to restart the six-year period. /d.

at 1287-88.

In contrast to Dunn-McCampbell, Plaintiff

here has alleged that the DMDC applied 32 C.F.R. §

77.3(a) to him by pleading that his application was

not considered “because the form shows on its face

that Plaintiffs employment was with al[n]

[organization engaged in religious activities] and so

fit would] not qualify under ...32 C.F.R. § 77.3(a).”

(Am.Compl.] 27.) Taking Plaintiffs allegations as

true and applying the rule set forth in Dunn-

McCampbell, the court finds that the application of

the regulation to Plaintiff restarts the six-year

statute of limitations. Consequently, Defendants’

argument is not well-taken.

C. Authorization of 32 C.F.R. § 77.3(a).

As a preliminary matter, the court must

address Plaintiffs contention that the regulatory

exclusion in 32 C.F.R. § 77.3(a) is not authorized by

10 U.S.C. § 1143a and is contrary to the purpose and

intent of Congress in establishing the Program. (P1.'s

Opp'n at 13). Defendants argue that the regulatory

exclusion is authorized by 10 U.S.C. § 1143a. For the

foregoing reasons, Plaintiff's arguments are not well-

taken.

10 U.S.C. § 1143a(g) states as follows:

4la

(g) Definitions. In this section, the term “public

service and community service organization”

includes the following organizations:

(1) Any organization that provides the

following services:

(A) Elementary, secondary, or

postsecondary school teaching or

administration.

(B) Support of such teaching or

school administration.

(D) Public health care.

(E) Social services.

(F) Any other public or

community service.

(2) Any nonprofit organization that

coordinates the provision of services

described in paragraph (1).

Defendants acknowledge that the challenged

regulation, 32 C.F.R. § 77.3(a), “allows early retirees

to participate in the [Program] when they work for

nonprofit organizations engaged in_ religious

activities if the activities are unrelated to religious

instructions, worship services, or any form of

proselytization.” (Defs.' Reply at 7.) Accordingly, and

contrary to Plaintiffs assertion otherwise, the

regulatory exclusion contained in 32 C.FR § 77.3(a) is

therefore consistent with the authorization provision

of 10 U.S.C. § 1143a(g).

42a

D. Equal Protection.

Defendants contend that Plaintiff fails to state

a claim upon which relief can be granted pursuant to

Fed.R.Civ.P. 12(b)(6) because the Program does not

violate Plaintiffs Equal Protection rights.

Defendants argue that the purpose of the Program is

to benefit community and_ public _ service

organizations and, as such, religious activities are

excluded. Defendants also argue that, if the

government provided funding for early retirees to

participate in religious activities such as religious

instructions, worship services, and proselytization to

religious organizations, the regulation would violate

the Establishment Clause. (Defs.' Mot. to Dismiss at

11-18.) Defendants argue that rational basis is the

appropriate level of scrutiny. (Defs.' Reply at 6.)

Plaintiff, however, responds that 32 C.F.R. § 77.3(a)

violates his Equal Protection rights, as applied and

facially,4 because the Establishment Clause would

not be violated if the exclusion were not present, and

that strict scrutiny is the appropriate level of

scrutiny. Plaintiff confines his challenge to the

constitutionality of the regulation and does not argue

that his activities as a youth minister qualify him for

military retirement credit under the _ existing

4 Beyond alleging that he has performed public and

community services (Am. Comp. J 23, Pl.'s Opp'n at 11-

12), Plaintiff has not set forth any facts to call into

question the application of the statute to him. Therefore,

the court finds that there is no difference in this case

between Plaintiff's as-applied and facial Equal Protection

claims.

43a

regulation. (Am.Comp.{ 28.) For the foregoing

reasons, Plaintiff's arguments are not well-taken.

1. Applicable Level of Scrutiny.

The Establishment Clause of the _ First

Amendment of the United States Constitution

provides: “Congress shall make no law respecting an

establishment of religion.” The Equal Protection

Clause of the Fourteenth Amendment forbids any

state from denying “to any person within its

jurisdiction the equal protection of the laws.” U.S.

Const. amend XIV. Equal protection applies to the

federal government through the Due Process Clause

of the Fifth Amendment. Bolling v. Sharpe, 347 U.S.

497, 500 (1954). It is well-settled that the

requirements of Equal Protection are the same

whether the challenge is to the federal government

under the Fifth Amendment or to state and local

actions under the Fourteenth Amendment. Buckley

v. Valeo, 424 U.S. 1, 93 (1976).

The Equal Protection Clause “protects against

arbitrary classifications, and requires that similarly

situated persons be treated equally.’ Jackson uv.

Jamrog, 411 F.3d 615, 618 (6th Cir.2005). If the

government action does not implicate either a

fundamental right oor _ single out suspect

classifications, statutes “must bear only a rational

relationship to a legitimate state interest.” Id.

(citing City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440 (1985)). Therefore, strict scrutiny

applies in Equal Protection cases when a plaintiff's

44a

fundamental] right to the free exercise of religion is

implicated. Locke v. Davey, 540 U.S. 712, 720 n. 3,

(2004) (applying rational basis scrutiny to the

plaintiffs Equal Protection claim because the

plaintiff's free exercise rights were not violated and

holding that the Washington state program excluding

students from pursuing theology degrees with state

scholarship funds passes such rational basis review);

Teen Ranch v. Udow, 389 F.Supp.2d 827, 841

(W.D.Mich.2005), aff'd 479 F.3d 403 (6th Cir.2007)

(determining that since the plaintiff, who claimed the

provision in the state appropriations bill excluding

funding to sectarian programs violated her Equal

Protection rights, “do not have a meritorious Free

Speech or Free Exercise claim, their Equal Protection

claim is subject to rational basis_ scrutiny.”);

Wirzburger v. Galvin, 412 F.3d 271, 283 (lst

Cir.2005) (citing Locke and applying rational basis

scrutiny to the plaintiff parents' claims that the

Massachusetts Const. amend. art. 18, which

prohibited public financial support for private

schools, violated their Equal Protection rights). Strict

scrutiny also applies in Establishment Clause cases

when a state disfavors religion on its face or has been

motivated by animosity against religion. Locke, 540

U.S. at 725 n. 10, citing Church of Lukumi Babalu

Aye, Inc. v. Hialeah, 508 U.S. 520, 532 (1993)

(applying strict scrutiny and holding that the statute

prohibiting animal sacrifice was motivated by

religious animus toward a particular religious sect).

Here, strict scrutiny is inappropriate because

Plaintiff does not allege that 32 C.F.R. § 77.3(a)

45a

interfered with his fundamental right to freely

exercise his religion or that the statute was

motivated by animosity against religion or disfavors

religion. First, Plaintiff does not contend that 32

C.F.R. § 77.3(a) interferes with his fundamental right

to freely exercise his religion. Plaintiff does not

contend that 32 C.F.R. § 77.3(a) imposes criminal or

civil sanctions on any type of religious service or

right in which Plaintiff participated. See Locke, 540

U.S. at 720 (citing Hialeah, 508 U.S. at 532).

Plaintiff does not maintain that 32 C.F.R. § 77.3(a)

denies Plaintiff the right to participate in the

political affairs of the community. Locke, 540 U.S. at

720, 124 S.Ct. 1307. (citing McDaniel v. Paty, 435

U.S. 618 (1978)). Plaintiff does not argue that 32

C.F.R. § 77.3(a) requires Plaintiff to choose between

his religious beliefs and receiving a religious benefit.

Locke, 540 U.S. at 720-21 (citing Hobbie ov.

Unemployment Appeals Comm'n of Fla., 480 U.S. 136

(1987); Thomas uv. Review Ba. Of Indian

Employment Sec. Div., 450 U.S. 707 (1981); Sherbert

v. Verner, 374 U.S. 398 (1963)). Plaintiff therefore

has not alleged facts that his fundamental right to

exercise his religion has been curtailed by 32 C.F.R. §

77.3(a).

Additionally, the regulation does not disfavor

religion or display animus toward religion. Like the

State of Washington in Locke that chose not to allow

students to use state scholarship funding to obtain a

theology degree, Defendants here have also “merely

chosen not to fund a distinct category,” Locke, 540

U.S. at 720, of Program recipients. As the court in

46a

Locke concluded, such a statutory exclusion does not

disfavor religion. Notably, the regulation here

excludes a number of different types of organizations.

32 C.F.R. § 77.3(a) (“These programs shall not be

administered by businesses organized for profit, labor

unions, partisan political organizations, or

organizaticns engaged in religious activities ...”). Yet

far from disfavoring or evincing hostility to religion,

Defendants acknowledge that the Program credits

military personnel for their work at religious

organizations, so long as the activities performed by

the early retiree “are unrelated to _ religious

instructions, worship services, or any form of

proselytization.” (Defs.' Reply at 7) (quoting 32

C.F.R. § 77.3(a)). Significantly, the regulation does

not make any such accomodations for businesses

organized for profit, labor unions, or partisan

political activities. Consequently, Plaintiff has failed

to allege that 32 C.F.R. § 77.3(a) disfavors or shows

animus toward religion. Accordingly, rational basis

scrutiny iS appropriate here because 32 C.F.R. §

77.3(a) does not interfere with Plaintiff's

fundamental right to freely exercise his religion, the

statute was not motivated by animosity against

religion, and it does not disfavor religion.

To satisfy rational basis scrutiny, the burden

of proof is on Plaintiff to show that 32 C.F.R. §

77.3(a) does not bear “a rational relationship to a

legitimate state interest.” Jackson v. Jamrog, 411

F.3d 615, 618 (6th Cir.2005) (citing Cleburne Living

Ctr., 473 U.S. at 440). Significantly, the “rational

basis test is enormously deferential to the

government, and only rarely have laws been declared

unconstitutional for failing to meet this level of

review.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:

PRINCIPLES AND POLICIES § 9.1 (2002) (citations

omitted). Under rational basis scrutiny, “statutory

discrimination will not be set aside if any set of facts

reasonably may be conceived to justify its

discrimination.” McGowan v. Maryland, 366 U.S.

420, 426 (1961).

2. Applying Rational Basis Scrutiny.

Defendants claim two purposes for the

classification in 32 CFR § 77.3(a) excluding an early

retiree from working at a religious organization and

performing religious instructions, worship services,

and proselytization, and Defendants argue both

purposes withstand rational basis scrutiny. First,

Defendants argue that the Program's classification

excluding religious activities is rationally related to

its purpose of providing benefits only to community

and public service organizations. Second, Defendants

argue that the Program's classification excluding

religious activities is also rationally related to

Defendants' purpose of avoiding an Establishment

Clause violation. For the foregoing reasons, the court

concludes that the Program withstands rational basis

scrutiny.

a. Providing Benefits to Community and Public

Service Organizations.

48a

Defendants note that “the purpose of the

[Program] is to utilize the experience and skills of

those individuals in the 15 to 20-year category ‘to fill

critical needs in our communities’ such as ‘in

education, law enforcement, and health care that are

underserved.” ” (Defs.' Reply at 8) (citing Senate

Committee on Armed Services, 102 S. REP. NO. 92-

352). The plain meaning of 32 C.F.R. § 77.1(b) also

confirms Defendants' assertion that the primary

purpose of the Program is to benefit public and

community organizations, not, as Plaintiff asserts,

military retirees. (The “purpose” of the Program is to

“[e]ncourage and assist Service members requesting

retirement with fewer than 20 years of service to

employment.”) (Id.) (emphasis added).

Since funding religious activities is not a

purpose of the Program, Defendants argue, the

classification excluding such activities is a rational

means to serve the legitimate interest of filling

critical needs in public and community service

organizations. (Jd. at 8-9). Moreover, the Equal

Protection Clause does not require Defendants to

fund religious organizations in the same way that it

funds secular organizations in any given program.

Teen Ranch, 389 F.Supp.2d at 838 (Locke v. “Davey

confirms that the Free Exercise Clause's protection of

religious’ beliefs and _ practices from _ direct

government encroachment does not translate into an

affirmative requirement that public entities fund

religious activity simply because they choose to fund

the secular equivalents of such activity.”) (quoting

49a

Eulitt v. Maine, Dept. of Educ., 386 F.3d 344, 354 (1st

Cir.2004)). Defendants' argument is well-taken. Since

Plaintiff has not shown that Defendant fails to set

forth any set of facts that could reasonably justify the

religious exclusion in 32 CFR § 77.3(a) based on the

Program's purpose of only benefitting community and

public service organizations, the statute withstands

rational basis scrutiny.

b. Avoiding Establishment Clause Violation.

Second, Defendants argue that the purpose of

the classification in 32 C.F.R. § 77.3 excluding

religious organizations that are engaged in religious

activities is Defendants' desire to avoid a violation of

the Establishment Clause. The Supreme Court

adopted a three-pronged test in Lemon v. Kurtzman,

403 U.S. 602, 612 (1971), to determine whether a

government statute or practice complies with the

Establishment Clause. First, the statute must have a

secular legislative purpose. Jd. Second, the statute's

principal or primary effect must neither advance nor

inhibit religion. Jd. Third, the statute must not

foster an excessive entanglement with religion. /d.

The “entanglement” prong has been folded into the

“effect” prong. See Zelman v. Simmons-Harris, 536

U.S. 639, 648-49 (2002) (“The Establishment Clause

... prevents a State from enacting laws that have the

‘purpose’ or ‘effect’ of adwancing or inhibiting

religion.”).

Here, Defendants do not dispute that the

Program complies with the first prong of the Lemon

50a

test. As discussed above, Defendants acknowledge

that the Program has the secular purpose of

encouraging military service personnel to fill critical

needs in community and public service organizations

by offering retirement credit to military personnel.

(Defs.' Reply at 8, ECF No. 17). Such a purpose is

clearly secular under the first prong of the Lemon

test.

Defendants argue, however, that were this

federal program to provide increased retirement pay

benefits for Plaintiff to work at a _ religious

organization and perform religious services such as

religious instructions, worship services, or

proselytization, the statute would fail the second

prong of the revised Lemon test. (Mot. to Dismiss at

18.) Defendants argue that doing so would have the

principal or primary effect of advancing religion

because it would be funding “specifically religious

activities” at a “pervasively sectarian” organization

in violation of Establishment Clause precedent. See

Steele v. Indus. Dev. Bd., 301 F.3d 401, 407-09 (6th

Cir.2002) (stating that the Roemer v. Bd. of Publ.

Works of Maryland, 426 U.S. 736, 755 (1976) rule

that “no state aid at all shall go to institutions that

are so ‘pervasively secular’ that secular activities

cannot be separated from. sectarian ones” is

controlling until the Supreme Court specifically

overrules it). Defendants also argue that the

Program would “result in an excessive government

entanglement with religion as the government would

have to monitor Plaintiffs sectarian work at the

5la

church to determine whether it constituted public or

community service.” (Mefs.' Mot. to Dismiss at 18).

Defendants argue that the classification in 32

C.F.R. § 77.3(a) limiting the Program to religious

organizations that are not engaged in religious

activities such as religious instructions, worship

services, and proselytization allows the government

to avoid violating the “effect” prong of the revised

Lemon test, and that this exclusion is permissible

under federal law. Defendants note that the

restriction against funding activities related to

religious instructions, worship services, or any form

of proselytizaticn in 32 C.F.R. § 77.3(a) is consistent

with “charitable choice” provisions that have been

applied to a range of government grant programs in

recent years to prohibit government funds from being

used for sectarian purposes. (Defs.' Mot. to Dismiss

at 15-17) (citing 42 U.S.C. § 300x-65(i); 29 U.S.C. §

2938(aX(3); 42 US.C. § 9920(c)). Moreover,

Defendants correctly points out that the Supreme

Court upheld the general grant program in Roemer,

426 U.S. at 740-41, which prohibited grantee private

colleges from using such money for “sectarian

purposes,” and the school aid program in Mitchell,

530 U.S. at 831, which prohibited any aid for any

activity that was not “secular, neutral, and

nonideological.” (Mot. to Dismiss at 17).

The Supreme Court in Locke, 540 U.S. at 720

n. 3, applied rational basis scrutiny to a state statute

excluding state funding of sectarian schools and held

the exclusion did not violate students' Equal

52a

Protection rights. Applying federal precedent in the

wake of Locke, the Supreme Court of Maine

interpreted federal Establishment Clause precedent

and applied rational basis scrutiny to hold that

Me.Rev.Stat. Ann. Tit. 20-A, § 2951(2), which

excluded sectarian schools from payment of public

funds for tuition at certain private schools, did not

violate parents' Equal Protection rights. The court's

rationale was based on the fact that the state's desire

to avoid excessive entanglements between

government and religion provided a rational basis to

maintain the funding limitation. Anderson, 2006 Me.

LEXIS 39 at * 56. The Sixth Circuit has held that the

“desire to avoid violating the Establishment Clause

... 1s sufficient to meet the rational basis test.” Teen

Ranch, 479 F.3d at 410 (quoting the district court's

holding, 389 F.Supp. at 841). Defendants here have

asserted that the same desire to avoid an

Establishment Clause violation was a purpose of the

classification excluding religion in 32 C.F.R. § 77.3(a)

Accordingly, Defendants have alleged facts that could

reasonably justify the classification in 32 C.F.R. §

77.3(a) excluding religious organizations from the

Program.

Plaintiff analogizes the Program here to the

indirect funding program at issue in Zelman, 536

U.S. 639, which held that students may use

government aid at a sectarian school for the secular

purpose of education without violating’ the

Establishment Clause. Plaintiff argues that the

Program, like the one in Zelman, is a “private choice

program” that benefits military retirees, who can

direct the aid to organizations of their choice. (PI.'s

Opp'n. at 9-10). However, Plaintiff's reliance on

Zelman is inapposite because the intended

beneficiaries of the Zelman private choice program

were students, while the intended beneficiaries of

the Program here are public and community service

organizations, not retirees. Also, the funding in

Zelman was intended to further the secular purpose

of educating schoolchildren. Here, were the

regulation not drafted the way it is, funding would go

directly to early military retirees who perform

religious instructions, worship - services, or

proselytization. Indeed, 32 C.F.R. § 77.3(a) is

carefully crafted to allow an early retiree to earn

military credit for his work at a _ religious

organization, so long as the services provided by the

early retiree are unrelated to religious instructions,

worship services, or proselytization. Significantly, the

Sixth Circuit recently upheld a state's right to

exclude nonprofit organizations that “integrate

religion as an integral part” of the social services the

organization provides from receiving state funding,

Teen Ranch, 479 F.3d at 410, due to the state's

“desire to avoid violating the Establishment Clause.”

Id.

Accordingly, 32 C.F.R. § 77.3(a) withstands

rational basis scrutiny because Plaintiff has not

shown that Defendants failed to set forth any set of

facts that could reasonably justify the classification

excluding religious organizations. Having determined

that 32 C.F.R. § 77.3(a) does not violate the Equal

Protection Clause, Plaintiff therefore has failed to

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state a claim upon which the court can grant relief.

Plaintiff has confined his cause of action to

challenging the constitutionality of 32 C.F.R. §

77.3(a). Plaintiff has not, however, alleged that he is

entitled to relief under 32 C.F.R. § 77.3(a), e.g., by

claiming that, though he worked for a religious

organization, the services he provided as a lay intern

and youth minister were unrelated to religious

instructions, worship services, or any form of

proselytization. Rather, Plaintiff indicates in his

Amended Complaint that such services were related

to religious instructions or worship services, stating

that “any application by the Plaintiff for creditable

service based upon his employment by the [Church]

between from [sic] January 1, 1996 and February 28,

2001, would be denied....”, (Am.Compl.J 28-29).

Accordingly, his challenge to the constitutionality of

the regulation on the basis that it violates his rights

under the Equal Protection Clause because he is not

allowed to receive military service credit for

providing community and public services when they

are related to religious instructions, worship services,

or forms of proselytization is denied. Therefore, the

court hereby grants Defendants' Motion to Dismiss

for failure to state a claim upon which relief can be

granted.

IV. CONCLUSION

For the reasons stated above, the court denies

Defendants’ Motion to Dismiss for lack of subject

matter jurisdiction pursuant to Fed. R. 12(b)(1). (ECF

No. 12.) The court grants Defendants’ Mczion to

Dismiss for failure to state a claim upon which relief

can be granted pursuant to Fed. R. 12(b)(6). (ECF No.

12.)

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

August 29, 2007

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Pub. L. 102-484, § 4462(a)(1),

Codified at 10 U.S.C. § 1143a

(a) In general.--The Secretary of Defense shall

implement a program to encourage members and

former members of the armed forces to enter into

public and community service jobs after discharge or

release from active duty.

(b) Personnel registry.--The Secretary shall

maintain a registry of members and former members

of the armed forces discharged or released from

active duty who request registration for assistance in

pursuing public and community service job

opportunities. The registry shall include information

on the particular job skills, qualifications, and

experience of the registered personne).

service organizations.--The Secretary shal] also

maintain a registry of public service and community

service organizations. The registry shall contain

information regarding each organization, including

its location, its size, the types of public and

community service positions in the organization,

points of contact, procedures for applying for such

positions, and a description of each such position that

is likely to be available. Any such organization may

request registration under this subsection and,

subject to guidelines prescribed by the Secretary, be

registered.

(d) Assistance to be provided.--(1) The Secretary

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shall actively attempt to match personnel registered

under subsection (b) with public and community

service job opportunities and to facilitate job-seeking

contacts between such personnel and the employers

offering the jobs.

(2) The Secretary shall offer personnel registered

under subsection (b) counselling services regarding—

(A) public service and community service

organizations; and

(B) procedures and techniques for qualifying

for and applying for jobs in such organizations.

(3) The Secretary may provide personnel registered

under subsection (b) with access to the interstate job

bank program of the United States Employment

Service if the Secretary determines that such

program meets the needs of separating members of

the armed forces for job placement.

(e) Consultation requirement.--In carrying out

this section, the Secretary shall consult closely with

the Secretary of Labor, the Secretary of Veterans

Affairs, the Secretary of Education, the Director of

the Office of Personne! Management, appropriate

representatives of State and local governments, and

appropriate representatives of businesses and

nonprofit organizations in the private sector.

(f) Delegation.--The Secretary, with the

concurrence of the Secretary of Labor, may designate

the Secretary of Labor as the executive agent of the

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Secretary of Defense for carrying out all or part of

the responsibilities provided in this section. Such a

designation does not relieve the Secretary of Defense

from the responsibility for the implementation of the

provisions of this section.

(g) Definitions.--In this section, the term “public

service and community service organization”

includes the following organizations:

(1) Any organization that provides the following

services:

(A) Elementary, secondary, or postsecondary

school teaching or administration.

(B) Support of such teaching or school

administration

(D) Public health care.

(E) Social services.

(F) Any other public or community service.

(2) Any nonprofit organization that coordinates the

provision of services described in paragraph (1).

(h) Coast Guard.--This section shall apply to the

Coast Guard in the same manner and to the same

extent as it applies to the Department of Defense.

The Secretary of Homeland Security shall implement

the requirements of this section for the Coast Guard.

Pub. L. 102-484, § 4464

SEC. 4464. INCREASED EARLY RETIREMENT

RETIRED PAY FOR PUBLIC OR COMMUNITY

SERVICE.

(a) RECOMPUTATION OF RETIRED PAY.--(1) If a

member or former member of the Armed Forces

retired under section 4403(a) or any other provision

of law authorizing retirement from the Armed Forces

(other than for disability) before the completion of at

least 20 years of active duty service (as computed

under the applicable provision of law) is employed by

a public service or community service organization

listed on the registry maintained under section

1143a(c) of title 10, United States Code (as added by

section 4462(a)), within the period of the member's

enhanced retirement qualification period, the

member's or former member's retired or retainer pay

shall be recomputed effective on the first day of the

first month beginning after the date on which the

member or former member attains 62 years of age

(2) For purposes of recomputing a member's or

former member's retired pay--

(A) the years of the member's or former member's

employment by a public service or community service

organization referred to in paragraph (1) during the

member's or former member's enhanced retirement

qualification period shall be treated as years of active

duty service in the Armed _ Forces; '= and

(B) in applying section 140la of title 10, United

States Code, the member’s or former member's years

60a

of active duty service shall be deemed as of the date

of retirement to have included the years of

employment referred to in subparagraph (A).

(3) Section 1405(b) of title 10, United States Code,

shall apply in determining years of service under this

subsection.

(4) In this subsection, the term “enhanced retirement

qualification period”, with respect to a member or

former member retired under a provision of law

referred to in paragraph (1), means the period

beginning on the date of the retirement of the

member or former member and ending the number of

years (including any fraction of a year) after that

date which when added to the number of years

(including any fraction of a year) of service credited

for purposes of computing the retired pay of the

member or former member upon retirement equals

20 years.

(b) SBP ANNUITIES.--(1) Effective on the first day of

the first month after a member or former member of

the Armed Forces retired under a provision of law

referred to in subsection (a)(1) attains 62 years of age

or, in the event of death before attaining that age,

would have attained that age, the base amount

applicable under section 1447(2) of title 10, United

States Code, to any Survivor Benefit Plan annuity

provided by that member or former member shall be

recomputed. For the recomputation the total years

(including any fraction of a year) of the member's or

former member's active service shall be treated as

having included the member's or former member's

years (including any fraction of a year) of

employment referred to in subsection (a)(1) as of the

date when the member or former member became

eligible for retired pay under this section.

(2) In this subsection, the term “Survivor Benefit

Plan” means the plan established under subchapter

II of chapter 73 of title 10, United States Code.

Code of Federal Regulations,

Title 32, §§ 77.1-77.6

Program to Encourage

Public and Community Service

§ 77.1 Purpose.

This part implements Pub.L. 102-484, Section 4462

and Pub.L. 103-160, Section 561 by establishing

policy, assigning responsibilities, and prescribing

procedures to:

(a) Encourage and assist separating Service

members, Service members retiring with 20 or more

years of service, DoD civilian personnel leaving the

Government, and spouses to enter public and

community service employment.

(b) Encourage and assist Service members requesting

retirement with fewer than 20 years of service to

employment.

§ 77.2 Applicability and scope.

This part applies to:

(a) The Office of the Secretary of Defense, the

Military Departments, the Chairman of the Joint

Chiefs of Staff, the Unified Combatant Commands,

and the Defense Agencies (hereafter referred to

collectively as “the DoD Components”). The term

“Military Services,” as used herein, refers to the

Army, the Navy, the Air Force, and the Marine

Corps.

(b) All active duty Service members and former

members under Pub.L. 102-484, Section 4462 and

Pub.L. 103-160, Section 561, and DoD civilian

personnel leaving the Government, and their

spouses.

§ 77.3 Definitions.

(a) Community service employment. Work in

nonprofit organizations that provide or coordinate

services listed in paragraphs (d) (1) through (12) of

this section. “Nonprofit” is defined as having been

recognized by the Internal Revenue Service as having

a tax-exempt status under 26 U.S.C. 501 (c)(3) or

(c)(4). These organizations shall not be administered

by businesses organized for profit, labor unions,

partisan political organizations, or organizations

engaged in religious activities, unless such activities

are unrelated to religious instructions, worship

services, or any form of proselytization.

(b) Creditable early retirement public or community

service employment for service members.

Employment in a DoD-registered public and

community service organization that provides the

services listed in paragraphs (d) (1) through (12) of

this section, or that coordinates the provision of the

services listed in paragraphs (d) (1) through (12) of

this section. Federal employment shall count toward

recomputed military retirement pay and Survivor

Benefit Plan base amount for early retirees: however,

working in a DoD-registered Federal public service

organization may trigger the dual-compensation

restrictions of 5 U.S.C. 5532. Employment must have

occurred between that date of early retirement and

the date in which the Service member would have

attained 20 years of credible service for computing

retired pay, or he or she must have retired on or after

October 23, 1992 and before October 1, 1999.

with at least 15 but fewer than 20 years of service, as

provided by Pub.L. 102-484, Section 4403.

(d) Public and community service organization.

Government or private organizations that provide or

coordinate the provision of the following services.

(1) Elementary, secondary, or post secondary school

teaching or administration.

(2) Support of teachers or school administrators.

(3) Law enforcement.

(4) Public health care.

(5) Social services.

(6) Public safety.

(7) Emergency relief.

(8) Public housing.

(9) Conservation.

(10) Environment.

(11) Job training.

65a

(12) Other public and community service not listed

previously, but consistent with or related to services

described in paragraphs(d)(1) through (11) of this

section.

(e) Public service employment. Work in a Federal,

state or local government organization which

provides or coordinates services listed in paragraphs

(d)(1) through (12) of this section.

(f) Separation. Normal separation from activity duty

or civil service, military retirement with 20 or more

year's service, release from active military service,

and reduction in force.

(g) Transition assistance program counselor. A

person charged with the responsibility of conducting

transition programs. Examples include personnel

assigned to family centers, military or civilian

personnel offices, unit transition counselors, and as

command career counselors.

§ 77.4 Policy.

It is DoD policy that:

(a) All separating Service members and former

members shal] be encouraged to enter public or

community service employment.

(b) Service members determined to be eligible by the

Secretary of their Military Department for, and who

do request retirement with fewer than 20 years of

service, are required by Pub.L. 102-484, Section 4403

to register for public and community service

employment.

(1) This registration normally shall take place not

earlier than 90 days before retirement or

terminal/transition leave.

(2) In order to have their military retired pay and

Survivor Benefit Plan base amount (if applicable)

recomputed in accordance with DoD Instruction

1340.19 [FN1] early retirees must be employed with

a DoD-registered public or community service

organization that provides the services listed in

sections 77.3(d)(1) through (d)(12), or that

coordinates the provision of services listed in section

77.3(d)(1) through (d)(12).

1 Copies may be obtained, at cost, from the National

Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161.

their spouses, and spouses of Service members who

are seeking employment shall be encouraged to

employment.

§ 77.5 Responsibilities.

(a) The Under Secretary of Defense for Personnel and

Readiness shall:

(1) Monitor compliance with this rule.

(2) Establish policy and provide guidance related to

public and community service employment.

(3) Provide program information to the public on the

Departmert of Defense's public and community

service employment program.

(4) Ensure that the Director, Defense Manpower

Data Center (DMDC):

(i) Maintains the Public and Community Service

Organizational Registry.

(ii) Maintains the Public and Community Service

Personnel Registry.

(5) Decide the status of requests for reconsideration

from employers resubmitting their request to be

included on the Public and Community Service

Organizational Registry, but whose first request was

disapproved.

(b) The Secretaries of the Military Departments

shall:

(1) Ensure compliance with this rule.

(2) Encourage public and community service

employment for separating Service members, their

spouses, DoD civilian personnel leaving the

Government, and their spouses.

(3) Coordinate with the Under Secretary of Defense

for Personnel and Readiness before promulgating

public and community service employment policies

and regulations.

§ 77.6 Procedures.

(a) Military personnel offices shall advise Service

members desiring to apply for early retirement that

they shall register, normally, within 90 days of their

retirement date, for public and community service

(PACS) employment, and refer them to a Transition

Assistance Program Counselor for registration.

(b) Personnel offices shall advise separating Service

members, DoD civilian personnel leaving the

Government, and their spouses to contact a

Transition Assistance Program Counselor about

PACS employment and registration.

counsel separating Service members (during

preseparation counseling established by DoD

Instruction 1332.36 [FN2]), DoD civilian personnel

leaving the Government, and their spouses on PACS

employment. Counselors shall update into the

Defense Outplacement Referral System (DORS)

database Service members requesting early

retirement and other DoD personnel or spouses who

request registration. Transition Assistance Program

Counselors shall use DD Form 2580 (Appendix A to

this part) to register personnel for PACS

employment. In addition, Counselors shall ensure

that Service members who are requesting early

retirement are advised that:

2 Copies may be obtained, at cost, from the National

Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161.

(1) Registering for PACS employment is a

requirement for consummation of their early

retirement under Pub.L. 102-484, Section 4403 or

Pub.L. 103-160, Section 561.

(2) Early retirees must provide a copy of their

confirmation DORS mini-resume to their servicing

military personnel office for filing in their Service

record before their final retirement processing.

(3) Subsequent PACS employment is encouraged but

not required.

(4) Working in a DoD-approved Federal public

service organization may subject him or her to dual

compensation restrictions of 5 U.S.C. 5532.

(5) DoD-approved PACS employment qualifies the

Service member who is retired under Pub.L. 102-484,

Section 4403 or Pub.L. 103-160, Section 561 for

increased retired pay effective on the first day of the

first month beginning after the date on which the

member or former member attains 62 years of age.

The former Service member must have worked in

DoD-approved PACS employment between the date

of early retirement and the date in which he or she

would have attained 20 years of creditable service for

computing retired pay, and have retired on or after

October 23, 1992 and before October 1, 1999.

(6) It is the early retiree's responsibility to ensure

that the DMDC is advised when the early retiree's

PACS employment starts, and of any subsequent

changes.

(d) Military personnel offices shall ensure a copy of

the confirmation DORS mini-resume is filed in the

permanent document section of the Service record of

Service members who retire early.

(e) DMDC shall maintain the PACS Personnel

Registry, which includes information on the

particular job skills, qualifications, and experience of

registered personnel.

(f) DMDC shall maintain the PACS Organizational

Registry, which includes information regarding each

organization, including its location, size, types of

public or community service positions in the

organization, points of contact, procedures for

applying for such positions, and a description of each

position that is likely to be available.

(g) PACS Organizations shall use DD Form 2581

(Appendix B to this part) and DD Form 2581-1

(Appendix C to this part) to request registration on

the PACS Organizational Registry. Instructions on

how to complete the forms and where to send them

are on the forms.

(h) DMDC shall register those organizations meeting

the definition of a PACS organization and include

them on the PACS Organizational Registry. For

organizations that do not appear to meet the criteria,

DMDC shall refer the request to the Transition

Support and Services Directorate, Office of the

Assistant Secretary of Defense for Personnel and

Readiness. The Transition Support and Services

Directorate may consult individually on an ad hoc

basis with appropriate agencies to determine

whether or not the organization meets the validation

criteria. For organizations which are denied approval

as a creditable early retirement organization and

which request reconsideration, the Transition

Support and Services Directorate will forward that

request to the next higher level for a final

determination. DMDC shall advise organizations of

their status.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.