[00:00:01] Speaker 04:
And we will move on to our final argument set for today.

[00:00:07] Speaker 04:
Velostagi versus International Longshore and Warehouse Union, case number 23-55094.

[00:00:54] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:57] Speaker 03:
Derek Anderson, on behalf of Appellant Leon Belistegi, and I would like to reserve any additional time for rebuttal.

[00:01:05] Speaker 03:
We are back here today because the district court, following remand from this court on summary judgment again, did not apply the evidence in the light most favorable to my client.

[00:01:17] Speaker 03:
And as a result, the district court improperly determined that my client was not entitled to the exception for the five-year rule

[00:01:24] Speaker 03:
nor was he entitled to credit for his hours drilling on behalf of the Air National Guard.

[00:01:32] Speaker 03:
Those are both incorrect determinations, because if the court had correctly applied USERRA liberally, as the statute and Supreme Court requires, the five-year exception would have been met, and my client would have been entitled.

[00:01:45] Speaker 04:
Can I ask you, just so I have the facts straight, because I kind of spent some time trying to figure this out.

[00:01:51] Speaker 04:
As I understand it, there was nine years and one month of continuous service.

[00:01:55] Speaker 04:
The National Guard was on top of that, correct?

[00:01:58] Speaker 03:
That's correct, Your Honor.

[00:01:59] Speaker 03:
The service was between 2000, I believe 2003, to approximately 2000, 2004 to 2013.

[00:02:06] Speaker 03:
Okay.

[00:02:08] Speaker 04:
So your client has to show four years and two months of exempt service, is that correct?

[00:02:14] Speaker 04:
He does.

[00:02:15] Speaker 04:
Okay.

[00:02:16] Speaker 04:
Even if we accepted your argument?

[00:02:19] Speaker 04:
on the verbal statement.

[00:02:21] Speaker 04:
That only gets him, I guess I'm confused as to how much you're tying into that, but I read it to be only eight months.

[00:02:27] Speaker 04:
Now, maybe it's more than that because subsequent deployments or you're claiming are covered by that.

[00:02:33] Speaker 04:
Can you help me even get to the four years and two months?

[00:02:38] Speaker 03:
Absolutely.

[00:02:40] Speaker ?:
Yeah.

[00:02:40] Speaker 03:
The record shows, and based upon my client's testimony and the documents that he submitted, approximately six to seven years of the time for which he's attempting to claim USERA credit was served because he was in direct support of the global war on terror.

[00:02:59] Speaker 04:
And that was all time after the oral statement was made.

[00:03:03] Speaker 04:
He alleges the oral statement was made to him in 2007.

[00:03:06] Speaker 04:
Which oral statement are you referring to, Your Honor?

[00:03:10] Speaker 04:
I thought he said that his commander had told him that he was serving in response to his order to involuntarily enlist.

[00:03:21] Speaker 03:
Yes.

[00:03:22] Speaker 03:
Well, his initial service was four years, and then he re-enlisted, and then re-enlisted again.

[00:03:27] Speaker 03:
But hold on.

[00:03:29] Speaker 04:
The statement was made in 2007.

[00:03:31] Speaker 03:
That's correct.

[00:03:33] Speaker 04:
So even if we accepted your argument,

[00:03:36] Speaker 04:
that the 2007 statement was enough.

[00:03:40] Speaker 04:
I guess, is that your argument that everything after that would have been exempt?

[00:03:45] Speaker 03:
Correct.

[00:03:45] Speaker 03:
Because everything he did after 2007, and the record shows this, was in direct support and because of the global war on terror.

[00:03:54] Speaker 03:
And as a result of that, he would qualify for the exemption.

[00:03:57] Speaker 03:
The issue here, and the issue that the district court had, is that plaintiff didn't present what I referred to during our argument

[00:04:05] Speaker 03:
as a magic letter.

[00:04:07] Speaker 03:
In other words, something signed by the secretary of the Air Force himself or herself or that person's designee that specifically said that your orders are.

[00:04:17] Speaker 04:
Okay, so it sounds like we need to address that argument or may need to address that argument.

[00:04:23] Speaker 04:
How do we read that out of the statute?

[00:04:27] Speaker 04:
The statute says it has to be designated by the secretary.

[00:04:32] Speaker 03:
The statute does not say that.

[00:04:34] Speaker 03:
The statute says that in isolation.

[00:04:36] Speaker 03:
But this statute, USERRA, is a continuation of statutes that have been in place since USERRA's only been around for 30 years.

[00:04:44] Speaker 03:
But it's a continuation of statutes that have far preceded that.

[00:04:48] Speaker 03:
And the Supreme Court and Congress itself says all of these previous statutes need to be read together to harmonize all of these provisions to ensure the guiding principle that- Let me ask you this.

[00:05:02] Speaker 00:
Let's just assume for the sake of argument and the question I'm about to present to you that I disagree with the district court that the statute requires some sort of written affirmative documentation indicating an involuntary enlistment.

[00:05:17] Speaker 00:
So let's just assume that for a moment.

[00:05:19] Speaker 00:
Your client still has an obligation at summary judgment to point the court to some

[00:05:27] Speaker 00:
evidence to raise a genuine issue of material fact as to the issue of an involuntary enlistment.

[00:05:35] Speaker 00:
Correct?

[00:05:35] Speaker 00:
Do you agree with me?

[00:05:36] Speaker 03:
Correct.

[00:05:37] Speaker 00:
I agree with you.

[00:05:37] Speaker 00:
OK.

[00:05:37] Speaker 00:
And it's not the obligation of the other side to disprove a negative.

[00:05:42] Speaker 00:
So you have to put something forward to be able to say, he received a verbal, we don't have anything in writing.

[00:05:48] Speaker 00:
We have no documentation.

[00:05:50] Speaker 00:
Nothing exists.

[00:05:51] Speaker 00:
We're not required to have anything.

[00:05:53] Speaker 00:
But you have to show something that raises a genuine issue of material fact with respect to your argument that there was a verbal order.

[00:06:00] Speaker 00:
Where did you do that?

[00:06:03] Speaker 03:
Well, Mr. Bella Steggy submitted documentation, and if the court were to review the record at 295, this is the referral by the employers.

[00:06:12] Speaker 03:
of the dispute to the joint Coast LRC were initially upon submitting the documentation regarding his orders regarding the things that he had done.

[00:06:21] Speaker 03:
They actually approved him to.

[00:06:24] Speaker 00:
me to, and the documents I'm finding in the record are documents showing that he served.

[00:06:29] Speaker 00:
So I don't think there's any dispute that he served.

[00:06:33] Speaker 00:
The question is whether he served because he voluntarily enlisted or he involuntarily enlisted.

[00:06:38] Speaker 00:
That's the basis to be able to get the exemption, right?

[00:06:42] Speaker 03:
Correct.

[00:06:42] Speaker 03:
And Mr. Belistegi testified, and this is also part of the record, that his commanding officer ordered him to reenlist.

[00:06:49] Speaker 03:
And there was a lot of discussion about that.

[00:06:52] Speaker 00:
Sort of saying that.

[00:06:54] Speaker 00:
Short of saying I was ordered to re-enlist, when asked additional follow-up questions like who was the commanding officer, what date did that happen, anything to provide evidence to establish a material issue of fact, he couldn't provide anything, right?

[00:07:10] Speaker 03:
That was at deposition and litigation.

[00:07:12] Speaker 03:
At the time he actually submitted his application back in 2013, he wasn't asked who his commanding officer was.

[00:07:20] Speaker 00:
He wasn't asked for any of the- What information did he provide?

[00:07:24] Speaker 00:
Point me to where in the record I can find the genuine issue of material fact that you raised at summary judgment to defeat the motion.

[00:07:38] Speaker 00:
by the defendant on this particular issue of involuntary enlistment.

[00:07:44] Speaker 03:
Mr. Belistegi submitted a number of orders as well as a number of citations for the job that he performed when he was actually serving because of the global war on terror that specifically include commendations for his service that reference what he was doing in specific war zones in support of the global war on terror.

[00:08:05] Speaker 03:
And he provided all of those things in addition to the testimony to the committee.

[00:08:09] Speaker 04:
Can I ask you, there seems to be an assumption here that the statement he made is not enough.

[00:08:16] Speaker 04:
Do you disagree?

[00:08:18] Speaker 04:
Let's say he didn't present anything else.

[00:08:23] Speaker 04:
Let's assume that he doesn't need anything else from the secretary.

[00:08:28] Speaker 04:
When he makes the statement that he was told by a commander that he would be receiving orders to deploy and he was required to re enlist wouldn't that create a genuine issue of material fact in and of itself.

[00:08:40] Speaker 03:
It absolutely would your honor and that's part of the problem it appears the district court judge.

[00:08:44] Speaker 03:
made credibility determinations when, in fact, if looking at the evidence in a light most favorable to the plaintiff, that statement that you just referenced should have been accepted as true and the motion for summary judgment should have been denied.

[00:08:57] Speaker 00:
Instead, what the district court chose to do was- Couldn't every plaintiff defeat summary judgment if they issued a self-serving affidavit or provided testimony that

[00:09:10] Speaker 00:
The the argument or the issue that the other side is contesting is just not true.

[00:09:13] Speaker 00:
I disagree that that that's that's not our standard No, it's not and and if that were simply in isolation, that's all he done All he had done is said you're saying the pluses for you is that he also has documents showing that he served

[00:09:25] Speaker 03:
Absolutely.

[00:09:26] Speaker 03:
There's context that supports what he's saying.

[00:09:29] Speaker 03:
It's not just a statement that he's saying, and there's nothing to support it.

[00:09:33] Speaker 04:
But there's difference.

[00:09:34] Speaker 04:
I actually disagree with this.

[00:09:35] Speaker 04:
I mean, I think you have a better argument on this particular issue.

[00:09:39] Speaker 04:
A plaintiff can, in fact, say and provide testimony as to a material fact.

[00:09:46] Speaker 04:
His material fact here is that the commanding officer said X.

[00:09:52] Speaker 04:
That goes to a jury.

[00:09:54] Speaker 04:
I agree.

[00:09:55] Speaker 04:
If it meets the legal qualification.

[00:09:58] Speaker 04:
This is not where a plaintiff said, I don't agree with that statement.

[00:10:02] Speaker 04:
The plaintiff presented facts here that said my commanding officer told me this.

[00:10:07] Speaker 04:
That may be true.

[00:10:08] Speaker 04:
That may be false.

[00:10:09] Speaker 04:
Who knows?

[00:10:10] Speaker 04:
But isn't that enough?

[00:10:13] Speaker 04:
And I'll be interested to hear from the union on this, because to me, if we're just looking at genuine issue of material fact, we can't get rid of this by saying,

[00:10:22] Speaker 04:
Well, he didn't have anything more.

[00:10:24] Speaker 03:
I agree with that 100%.

[00:10:25] Speaker 03:
But to add to it, there's additional evidence.

[00:10:28] Speaker 03:
There's additional documents.

[00:10:30] Speaker 02:
Why isn't that hearsay?

[00:10:32] Speaker 02:
I mean, he's trying to prove the fact that there was this order and his only, I mean, he's making an assertion about what the commander said that's being offered to prove the truth of the matter asserted.

[00:10:45] Speaker 02:
What exception are you invoking to allow the hearsay rule to allow that to be admissible?

[00:10:51] Speaker 03:
What I'm saying is the statement itself should be sufficient, but there's additional things beyond the statement.

[00:10:58] Speaker 04:
Judge Miller's question is a good one, and I'd be interested in your response.

[00:11:02] Speaker 04:
Does it require admissible evidence to create a genuine issue of material fact?

[00:11:08] Speaker 04:
I have understood the law to be no, that it only has to create a genuine issue of material fact to which you could prove it at trial.

[00:11:17] Speaker 03:
That's the standard that I understand as well, but also his testimony itself is admissible.

[00:11:22] Speaker 03:
The documents are admissible.

[00:11:23] Speaker 04:
Well, the documents are, but his statement, my commanding officer told me that, might not be admissible, but it could lead to admissible evidence.

[00:11:33] Speaker 03:
The way that he acted in response to what he understood is likely an exception to hearsay and in itself would likely be admissible.

[00:11:42] Speaker 03:
In addition to that, there is also the documents that I continue to reference.

[00:11:46] Speaker 02:
Can I go back to a question Judge Nelson asked near the beginning?

[00:11:50] Speaker 02:
4312C4B, he has to be ordered to or retained on active duty.

[00:12:00] Speaker 02:
And his statement is that that's what happened.

[00:12:05] Speaker 02:
Because of a war or a national emergency—and he says that that's what happened—as determined by the secretary concerned—so what is your understanding of what that clause means, as determined by the secretary?

[00:12:20] Speaker 03:
What that clause means is the secretary or his or her designee determines whether a particular operation or mission is being done because of a war or is being done because of a certain purpose.

[00:12:33] Speaker 03:
And that might not necessarily be reflected in an individual service member's orders.

[00:12:38] Speaker 03:
One of the things that was discussed during oral argument is sometimes these orders might be delivered en masse.

[00:12:45] Speaker 03:
Sometimes these delivered

[00:12:46] Speaker 04:
But where's your issue?

[00:12:48] Speaker 04:
That's my concern about this case.

[00:12:50] Speaker 04:
I don't think there's a genuine issue of material fact.

[00:12:53] Speaker 04:
Whether documentation has to be provided or anything else, where's the genuine issue of material fact that the secretary made this determination?

[00:13:02] Speaker 03:
The general issue of material fact is that you have to look at the other evidence, and the other evidence shows that he was serving because of the global war on terror.

[00:13:14] Speaker 04:
But the statute is clear, as determined by the secretary.

[00:13:19] Speaker 04:
Now, it looks like in 2016, the Department of Defense has recognized this is an issue, and they've issued regulations designating certain deployments.

[00:13:28] Speaker 04:
I think your point en masse, but don't you have to have something that says that the secretary made this determination?

[00:13:35] Speaker 04:
You may not need a letter from the secretary, but you might need a public statement from the secretary.

[00:13:41] Speaker 04:
You might need a regulation.

[00:13:44] Speaker 04:
Hypothetically, if the commander had said, hey, the secretary called me and he said your deployment, I mean, maybe that would be enough, but he didn't even say that.

[00:13:55] Speaker 03:
The statute itself does not have a specific documentary requirement to satisfy the exemption and there is no case law.

[00:14:02] Speaker 04:
Yeah, but you have, but there has to be something.

[00:14:05] Speaker 04:
Where is the genuine issue material fact?

[00:14:08] Speaker 04:
What can I point to to say that the secretary did this?

[00:14:11] Speaker 03:
The general issue of material fact is an inference can be drawn that the secretary did this because he would not be performing those duties unless someone at the secretary level or their designee had approved it and the fact that the statute also not necessarily approved it for the war on terror.

[00:14:27] Speaker 03:
Correct.

[00:14:29] Speaker ?:
Okay.

[00:14:30] Speaker 03:
If it's being performed, based upon the duties that he was performing, it seems pretty clear that the duties were performed were because of the global war on terror and in direct support of the global war on terror.

[00:14:42] Speaker 03:
And so because of that, I think you can draw an inference.

[00:14:44] Speaker 03:
And additionally, if you were to look at the statute in whole, the statute doesn't require a specific document.

[00:14:50] Speaker 03:
What it does is it says the employee, upon applying for USERRA benefits, is supposed to submit

[00:14:57] Speaker 03:
what they have.

[00:14:58] Speaker 03:
And the employer, if they want to ask for more documents, they may do so.

[00:15:02] Speaker 03:
In this case, that's exactly what Mr. Belistegi did.

[00:15:05] Speaker 03:
He showed up.

[00:15:06] Speaker 03:
He said, I've been away to war.

[00:15:08] Speaker 03:
Here's my documents.

[00:15:09] Speaker 03:
I'd like you to re-employ me under your policy.

[00:15:11] Speaker 03:
They did that.

[00:15:12] Speaker 03:
They said they'd give him credit.

[00:15:13] Speaker 03:
And then three years later, with the same documents, they chose to take that away.

[00:15:20] Speaker 03:
I would like to reserve my remaining time.

[00:15:21] Speaker 03:
Thank you.

[00:15:56] Speaker 01:
May it please the court, Thomas Peterson, for the appellees.

[00:15:59] Speaker 01:
So there is a, first there is a document requirement in the statute.

[00:16:04] Speaker 01:
If you look at 43.2.

[00:16:05] Speaker 04:
Let's say we don't agree with you or we don't want to reach that in this particular case.

[00:16:11] Speaker 04:
What is the avenue for you here?

[00:16:14] Speaker 01:
Well, I think there is a requirement that one has to demonstrate the secretary's approval.

[00:16:20] Speaker 04:
You say document, okay, and that may be true, but that's different than a documentation requirement.

[00:16:25] Speaker 01:
Your Honor, I think there's different ways you could slice into this issue.

[00:16:30] Speaker 01:
One way you can do it is to simply look at the requirement of the provision that Judge Miller cited earlier that talks about how the exception applies and that it has in it the requirement as determined by the secretary concerned.

[00:16:46] Speaker 04:
So what about the argument from counsel that we can implicitly imply that?

[00:16:51] Speaker 01:
I don't think you can implicitly apply that because, among other things, in one of the undisputed statements of material fact at summary judgment, this is at 3ER 398, item D38,

[00:17:06] Speaker 01:
There was admitted that the secretary didn't authorize an exemption in this case.

[00:17:11] Speaker 01:
That was part of the record that was created with respect to this issue.

[00:17:14] Speaker 04:
Oh.

[00:17:15] Speaker 04:
Wait, can you point me to that?

[00:17:17] Speaker 01:
Yes, Your Honor.

[00:17:17] Speaker 01:
3ER 398, it's part of the undisputed statement of material fact.

[00:17:24] Speaker 01:
And I invite you to look at D38.

[00:17:27] Speaker 04:
And that is undisputed that the secretary did not approve it.

[00:17:31] Speaker 01:
Did not authorize an exemption, I believe is the terminology.

[00:17:34] Speaker 01:
Oh, I see.

[00:17:35] Speaker 01:
Yeah.

[00:17:36] Speaker 01:
So apart from even if we're not going to rely on that, which is part of the paperwork framework at summary judgment, there isn't anything

[00:17:47] Speaker 01:
here that links this to the secretary or any determination that the secretary made.

[00:17:52] Speaker 01:
And I think it's important in thinking about the secretarial requirement that what USERRA has tried to do is strike a balance between encouraging enlistment, rewarding those who do, but also minimizing to some extent the disruption that is inevitable, particularly if people are away from the workplace for a long period of time.

[00:18:14] Speaker 01:
And that's reflected, I think, not just in the secretarial requirement, which I take to mean that not everyone who is in the military at the time of a war or national emergency is necessarily going to be able to benefit from the more than five-year rule.

[00:18:32] Speaker 01:
But also, you recall that the statute was amended in 1996.

[00:18:36] Speaker 01:
in this particular provision that Judge Miller drew attention to earlier, the exception to the five-year rule that's at issue here.

[00:18:44] Speaker 01:
And it changed to say that the requirement for the exception is the service has to be because of the war national emergency as determined by the Secretary and not during.

[00:18:59] Speaker 01:
So we moved also, I think there's another problem with the plaintiff's evidence, whether you view it as his testimony.

[00:19:07] Speaker 04:
So can I drill down on that testimony point?

[00:19:10] Speaker 04:
Because obviously, that would be the easiest way to resolve this case, is to say, look, his testimony

[00:19:15] Speaker 04:
just doesn't create a material issue.

[00:19:17] Speaker 04:
In fact, I have some concerns about saying that because I do think it creates a material issue.

[00:19:22] Speaker 04:
In fact, it may not be admissible.

[00:19:25] Speaker 04:
What is your understanding?

[00:19:26] Speaker 04:
I mean, do you think that that just doesn't create it?

[00:19:28] Speaker 04:
I mean, if he didn't have it, let's put it this way, if he didn't have his oral statement,

[00:19:31] Speaker 04:
I don't think there's anything to say that there's no potential dispute of material fact on whether it was on a global war, a terror, or a national emergency.

[00:19:44] Speaker 04:
Yeah, exactly.

[00:19:46] Speaker 01:
I agree with you, Your Honor.

[00:19:47] Speaker 01:
But also, I don't think his statement, I believe, just rather ambiguously suggested that he was told that he had to re-enlist because his commanding officer told him to do that.

[00:19:58] Speaker 04:
Well, I thought he's.

[00:19:59] Speaker 00:
What are orders of involuntary?

[00:20:01] Speaker 00:
involuntary enlistment how are they typically I understand that you're not the employer you're the union so it's kind of an interesting not your honor I'm actually with the PMA okay union council is here with me but I'm the spokesperson today okay so can you explain just as a matter of fact for me how an involuntary order of enlistment occurs

[00:20:23] Speaker 01:
Well, if we're talking about one that triggers USERRA and the five-year exception, then I think you go to this document that's in our judicial notice request, which was promulgated by the Defense Department.

[00:20:35] Speaker 04:
Yeah, but that's a hard one, because that's from 2016.

[00:20:40] Speaker 04:
I'm not sure that gets you.

[00:20:41] Speaker 04:
I mean, you're using that.

[00:20:44] Speaker 04:
You want us to infer that that is the way it's done, even though that happened after the fact?

[00:20:48] Speaker 01:
Well, but Your Honor, let me walk you through why I think you can.

[00:20:54] Speaker 01:
So in the first place, let's remember that he applied for these benefits twice, really.

[00:21:00] Speaker 01:
The first time it was acted upon was in 2016.

[00:21:04] Speaker 01:
And then in 2018 again, he sought to apply for them.

[00:21:09] Speaker 01:
And we know that this, and what I was going to draw your attention to in particular is the part, this is to get back to Judge Desai's question, the part in this document which points out that one of the obligations the secretary has is to annotate the order

[00:21:24] Speaker 01:
to reflect the basis by which the service is being undertaken to show if it qualifies for a USERA exception and thus by annotating the order, what you do in effect is you address this involuntary enlistment scenario.

[00:21:45] Speaker 04:
at the time that the order allegedly was given in 2007.

[00:21:49] Speaker 04:
That was from 2016.

[00:21:51] Speaker 01:
Your Honor, it did according to the Sutton case in 2010.

[00:21:56] Speaker 01:
OK, yes, it's 2010.

[00:21:58] Speaker 01:
But at the time he's applying for the benefits, this defense department order is in effect.

[00:22:05] Speaker 01:
But let me also point out, I think it's a misconception to think that the documentation

[00:22:14] Speaker 01:
has to be coincident with the enlistment or the benefits award.

[00:22:23] Speaker 01:
Because if you also look at this order in paragraph 9, starting on page 8, it imposes on the secretary of each department

[00:22:33] Speaker 01:
a responsibility to provide to to various documents to uh... to service members with respect to establishing their use their benefits and that's particularly part ninety in other words the secretary is supposed to provide documentation to confirm

[00:22:50] Speaker 01:
the the the availability of the benefit and then it points out in 9h that the secretary is also supposed to provide a statement if there is not sufficient documentation so Judge Nelson to get back to your point

[00:23:05] Speaker 01:
I think that you can go to the Department of Defense, even if you didn't get the documents when you were ordered or.

[00:23:14] Speaker 01:
You get a retroactive statement.

[00:23:16] Speaker 01:
Effectively.

[00:23:17] Speaker 04:
Boy, that seems like a high burden to put on these service members.

[00:23:22] Speaker 01:
Well, Your Honor, interestingly,

[00:23:24] Speaker 01:
If you look at the last part of this, employer information assistance, it doesn't allow the employer to do any of that.

[00:23:31] Speaker 01:
That's only something the service member can do.

[00:23:34] Speaker 04:
You're sure giving us the hardest way to rule in your favor.

[00:23:37] Speaker 04:
Can you take a step back?

[00:23:38] Speaker 04:
I'm sorry, I was just trying to answer your question.

[00:23:39] Speaker 04:
I understand that, but I want to know the easiest way.

[00:23:42] Speaker 04:
It seems like there's a lot of different avenues.

[00:23:44] Speaker 04:
Maybe we agree with you.

[00:23:46] Speaker 04:
I'm trying to flesh out what's going on here, because can we just reject his statement?

[00:23:51] Speaker 04:
Give me your best argument for why we can just reject his statement that that does not create a genuine issue.

[00:23:58] Speaker 01:
Well, that undisputed material fact, I think, takes me pretty much where I need to go in terms of satisfying the secretarial requirement.

[00:24:05] Speaker 04:
OK.

[00:24:05] Speaker 04:
And you think we could just say, because he doesn't say that it came from the secretary, that's it.

[00:24:10] Speaker 04:
We don't need to go any further.

[00:24:11] Speaker 01:
And none of the documents do.

[00:24:13] Speaker 01:
And I also think there remains an issue about whether his service was because of these events.

[00:24:19] Speaker 04:
Well, but he says in his statement, was required for that deployment, which was part of the global war on terrorism.

[00:24:26] Speaker 04:
That's why I go back to the statement and say, if we assume that this statement can create a material fact, it seems to create a material fact as to fighting in the global war on terrorism.

[00:24:37] Speaker 04:
What it doesn't do is create a material fact that the secretary approved it.

[00:24:44] Speaker 04:
designated it.

[00:24:45] Speaker 01:
I agree with you certainly with respect to the secretary but even as to what I'll call the because of factor if you look at those certificates for example that he's got that he received for his service actually in the during his service in Kuwait that's only a six-month period.

[00:25:02] Speaker 04:
Well that was my question at the beginning and I I had understood the case that way what I just heard was his argument is that everything after 2007 would have been

[00:25:13] Speaker 04:
would have qualified for that.

[00:25:17] Speaker 01:
And to that I would say that in addition to my, we still don't have the secretary, that we have my because of point because I don't think that generalized testimony has got the level of specificity that's kind of necessary.

[00:25:30] Speaker 04:
So we could say, in theory, we could say this may create a genuine issue of material fact as to nine months or eight months, whatever that time is from 2007, the Kuwait deployment.

[00:25:44] Speaker 04:
He doesn't hit the five-year mark with that, and there's no genuine issue of material fact as to anything else.

[00:25:51] Speaker 01:
I think you could say that, but I also would urge you in whatever you say to keep in mind that... You want us to talk about the Secretary.

[00:25:57] Speaker 01:
Well, I think one of the things that the Department of Defense, through its encyclical, has tried to do is to give people some guidelines about this.

[00:26:12] Speaker 01:
This is going to turn into a problem if anybody can come in and say, well, I had a conversation with somebody who told me I should reanalyze.

[00:26:20] Speaker 02:
And I take it your position is that to create a genuine issue of material fact and to survive summary judgment, a party needs to produce admissible evidence?

[00:26:28] Speaker 01:
Yes, I agree with that.

[00:26:29] Speaker 01:
That's exactly right, Your Honor.

[00:26:35] Speaker 01:
If you decide that there is an easy path out of this case, so you don't have to get into all of this, what documentation suffices, I think it's important that you not do anything which is going to close the door to the idea that it's still very much open for people to insist on documentation.

[00:26:52] Speaker 01:
And just to kind of go back to where I started.

[00:26:55] Speaker 04:
Well, it seems like your argument on that point is a lot stronger after 2016.

[00:27:01] Speaker 01:
yes your honor but i do think that if you you can because that the second case in twenty ten thought there was an annotation requirement i appreciate that's a district court in virginia but but and in the castellano case which comes after from the uh... merit system

[00:27:19] Speaker 01:
board also suggest this annotation process.

[00:27:23] Speaker 01:
I mean, I think there is a regime that the military has for doing this.

[00:27:27] Speaker 01:
And taking what my friend said about this being a system that's supposed to be liberally construed to aid benefits, there is a list of documentation which is set out in the 0.123 regulation.

[00:27:43] Speaker 01:
And that's promulgated pursuant to the authority of 4312 F1.

[00:27:49] Speaker 01:
which talks about, I'm sorry, F2, which specifically directs that there be regulations that are promulgated.

[00:27:57] Speaker 01:
So I think there is a documentation regime that is expected.

[00:28:01] Speaker 01:
It's necessary to make this work efficiently from an employment point of view.

[00:28:05] Speaker 01:
And I also think that it's inconsistent with the fact that Congress struck this balance as to how far these benefits were supposed to extend given the fact there is a cost that employers suffer as a result of it.

[00:28:17] Speaker 01:
So I think that's all I have to offer unless you have questions for me.

[00:28:24] Speaker 01:
Thank you.

[00:28:39] Speaker 03:
Thank you, Your Honors.

[00:28:40] Speaker 03:
I just want to point out, the record 398, the fact that plaintiff has not disputed is that Mr. Belstege has not identified any documents that state that the Secretary of Air Force authorized an exemption.

[00:28:53] Speaker 03:
He didn't state or admit that the Secretary did not authorize an exemption.

[00:28:59] Speaker 03:
And I'd also like to point the court's attention to Section 4312, F4.

[00:29:05] Speaker 03:
The employer cannot demand documents that do not then exist or are not then readily available.

[00:29:11] Speaker 03:
In this case, Mr. Belistegi submitted what he had in 2013.

[00:29:14] Speaker 03:
The employer had the opportunity to ask for more documents.

[00:29:19] Speaker 03:
They chose not to.

[00:29:20] Speaker 03:
That's not Mr. Belistegi's fault, and he shouldn't be punished for it.

[00:29:24] Speaker 04:
Thank you so much.

[00:29:25] Speaker 04:
Thank you to both counsel for your arguments.

[00:29:26] Speaker 04:
That resolves our arguments for today and the court is adjourned.