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Case number 24-5084, Andrew Dutt, Major US Army at Balance versus Daniel Driscoll, the Honorable Secretary of the Army.

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Mr. Thayer for the balance, Mr. Silverman for the appellee.

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Mr. Thayer, whenever you're ready.

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It's the start of a new term and we have new lighting in this courthouse, so now we can see, so this is a great new beginning.

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Please, whenever you're ready.

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Here comes the sun.

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Thank you, your honor.

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Chief Judge, your honors may it please the court.

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My name is Dylan Thayer.

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I am here on behalf of the appellant Major Andrew Dutt.

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As this court has held in Frizzell v. Slater and reaffirmed in Jackson v. Mabus, military correction boards are required to address non-frivolous arguments put forth by applicants.

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Here, Major Dutt made three non-frivolous arguments which were not addressed by the correction board.

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First,

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that ASOC administrators arbitrarily administered room intrusion exercises.

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Second, that ASOC administrators failed to adhere to the student evaluation plan by not placing Major Dutt on academic probation and by failing to provide him with retraining prior to retesting.

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And third, that ASOC administrators violated Army Regulation 623-3 when preparing Major Dutt's Form DA 1059.

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Neither the June 2021 decision on Major Dutt's application nor the May 2019 decision by the correction board addressed any of these three non-frivolous arguments.

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When we look at the text of the 2019 and 2021 decision, almost the entirety of the correction board's analysis is devoted to boilerplate recitations of statutory and regulatory language.

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I think I have a sense of what you would like from us, but what is it that you would ultimately like from the corrections board?

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Yes, your honor.

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I think that what Major Dutt would like from the correction board is for them to fairly consider his argument that any adverse impact that he suffered during the course was as a direct result of these failures by the course administrators.

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What would that get him?

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that would get him a certification that he completed the course, Your Honor.

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So that is where I am a little unpersuaded.

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It seems like even if the board did everything perfectly well, even if his arguments are total winners in terms of things that went wrong before the correction board became involved, I don't see how a correction board

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can order him to receive a certificate for a course he didn't successfully complete.

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So a few points on that, Your Honor.

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So the correction boards have broad authority under 10 USC 1552 to correct any military record.

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Any means any.

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So they can correct this course certification for a certainty, Your Honor.

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Second of all, I think it's important to contextualize the alleged failures that Major Dutt had on the course.

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There's been reference in the secretary's brief to 17 indices of failures by Major Dutt in the course.

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That comes over the course of four months and 500, 600 or so evaluations.

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And those 17... I think there's no dispute in the record that the people who grade him

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Failed him.

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And gave him a failing grade.

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The people who assessed the course on the final day of the course did not cast him, Your Honor.

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And I can see where he could go to the correction board and say, you know, all these procedural things went wrong.

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I wasn't given a fair shake and I should get to do it again.

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I should get another chance.

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But even if the board, as a formal matter, has the authority to grant any relief,

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It seems like it would be pretty wrong for the board's relief to be a diploma for a course he did not successfully complete.

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Sure.

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Well, I think that's for the board to determine, Your Honor.

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But if the board should not determine that, if it would be arbitrary or unreasonable for the board to do that, then you're here asking us to remand to a board that can ultimately not, that should ultimately not give you what you

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Well, I would dispute that it would be arbitrary for the board to do that, Your Honor.

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I think that the board- I went to college and I got a bunch of Fs.

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I don't think he deserved the Fs, by the way.

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He may have been a great student.

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It may have been a completely unfair shake that he got.

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But he did not receive passing grade from the course.

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If I went to college and I didn't get a passing grade, I don't understand how the remedy for a correction board would be, I get the diploma anyway.

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So again, Your Honor, as I mentioned, I think it's worth contextualizing the alleged failures that he had.

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His major debt's contention is, as I mentioned, these

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17 failures, that's not the same as receiving 17 Fs, your honor.

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That's out of 500 or 600 evaluations receiving 17 poor evaluations.

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So it's not receiving 17 Fs, your honor.

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It's really more like receiving 17 As if you split it out percentage-wise.

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So I think that Major Dutt would push back.

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17 As and 483 A pluses?

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So 17 As meaning like,

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I'm being a little glib, Your Honor.

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What I mean is, if you look at the total percentage, I can't do the math off the top of my head, but my best back of the envelope estimate is that 17 out of 500 or 600, that's something like a 95 to 97% pass rate.

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So when I said 17 A's, Your Honor, that's what I meant.

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Are they all equally ranked?

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How do we know that?

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Excuse me, Your Honor?

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Are they all equally ranked?

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In college, for example, you have a five credit course, you have a one credit course.

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How do we know how they're ranked?

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The program that we get in the appendix is largely blacked out.

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You can't even tell what these various hoops that he has to go through, what they consist of.

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Yes, Your Honor.

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So as Judge Walker mentioned, this is at the end of the day, it's an up or down pass or fail course.

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So each of these matrices all play a part in how that assessment is made in terms of whether he's passing the course or not.

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So I thought there was one indication that even if he failed one course, that's enough to kick him out.

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Yes, so the secretary does mention in his brief how there is language in the student evaluation plan that says even one failure by a student is enough to merit removal from the course.

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I think that it's important not to take that overly literally, Your Honor.

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I think just as you know,

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Well, I mean, we all know in certain areas of life, there's something that a person could do in a job or any situation that would be so egregious that it would merit removal immediately.

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But the student evaluation plan also states that students who are having academic difficulties are required to be placed on academic probation.

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So I think that that language which says that the secretary can remove anyone for, or excuse me, that the ASOC course administrators can remove anyone for

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any failure.

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I think it's important not to read that too expansively.

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There are some failures that are so egregious that, yes, they would merit immediate removal from the course.

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I just want to follow up on two things that Judge Walker posed to you about maybe he'd be entitled to, if we rule in his favor, be entitled to take the course again.

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He already had that right.

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Isn't that correct?

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That is correct, Your Honor.

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He already had it and had it for 12 months after he failed the initial course and he didn't take advantage of it.

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That's correct, Your Honor.

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Yes, I think that Major Dutt feels that he was placed in a very disadvantageous position that the course was arbitrarily and selectively administered.

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I think that that's been substantiated through the subsequent IG investigation that was performed and I think he felt that

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continuing to take the course again under such conditions would be futile.

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The other question I wanted to follow up on, excuse me, is the advisory opinion that came out in November of 2023, was it?

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I believe it was earlier than that.

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2021?

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Yes, Your Honor.

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I think that's correct.

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Your client received a letter

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sometime in the winter, I think it was January, saying that if you wanted to oppose this, which found that 17, if he wanted to oppose this, do so in 30 days, he didn't do it.

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And the board went ahead and entered a judgment against him, relying on the advisory opinion.

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How do you overcome that?

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Well, our office had requested an extension to the 30 days.

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But the 30-day period in April, the 30-day period had already run.

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It's my understanding that the 30 days, that was several years ago.

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It was, frankly, prior to my time at our firm.

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But it's my understanding that the time had not run prior to the request of the extension, Your Honor.

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I'd have to look in the record to be certain about that.

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I thought the letter went out in January.

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I can't be certain about that, Your Honor, but it's my understanding that that request was made in timely fashion.

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So Mr. Thayer, my understanding from your briefing is that you are only questioning the reconsideration order, not the underlying order.

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So you're only challenging the 2021 reconsideration order.

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Well, that's correct, Your Honor, but I think it's important to assess these two orders in conjunction.

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You're not challenging the 2019 order.

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Well, but the district court

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determined that the 2021 order was insufficient.

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And the district court said, yes, this order is insufficient, but if we rely on the 2019 order, then it's sufficient.

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So I think it's... Well, it is a reconsideration order.

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Sure.

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We don't expect a board of corrections to restate all of their reasons from an initial decision.

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correct, your honor, but they didn't really state any reasons in the initial decision either.

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And so I think that that's what I'm getting at is that there were no reasons.

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I mean, your specific argument is that they fail to consider three arguments that you suggest were non frivolous.

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So even if that is the case, you still have to show that failure to consider those things or to even mention those things was was prejudicial to Mr. Sure.

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And, and I'm not sure what is the where have you shown that you can overcome the harmless error.

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Yeah, yes, your honor, I think that, as for the reasons I mentioned in you know speaking with Judge Walker.

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These errors were not harmless.

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These were non-frivolous arguments that Major Dutt made before the correction board.

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The correction board in 2019, the only analysis that they gave of this case, which wasn't boilerplate recitations of statutory language, was the record shows applicant was not meeting core standards in many areas.

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That doesn't respond.

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to major thoughts arguments and they're required to respond to those arguments because evidence though that if they were to respond to those arguments, there would have been a different outcome where where he received a failing grade across a number of metrics.

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The board is required to correct any error or injustice in the record and that's not what the statute says.

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The statute says if the secretary as he considers necessary

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It's a lot of discretion placed in the secretary and therefore in the boards.

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There is, Your Honor, but courts have consistently found that failure to correct a clear injustice in the record is in of itself arbitrary and capricious.

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So the secretary has that discretion, but it can't be exercised in an arbitrary manner.

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And one of the ways that a board can exercise that discretion in an arbitrary manner is not reviewing

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non-frivolous arguments.

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And here, Major Dutt showed that he was not placed on academic probation when he was required to be placed on academic probation.

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He was not provided proper retraining prior to retesting.

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And he was arbitrarily given certain exercises.

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And all of these things had an impact on his course failures.

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I have one question about what you just said about probation.

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I understand your argument to be that there's an entitlement to probation.

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I wonder, what if the, I was gonna say what if the thing, just quick preference.

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I said this earlier, but I wanna be clear.

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I'm not saying he deserved any of these bad grades.

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He may have done a great job and it may be that he just, his evaluators were very misguided.

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That's not what's really before us right now.

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What if the thing that his evaluators felt was insufficient happened on the last day of the course?

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It can't be that you have an entitlement to probation

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rather than if the failing thing you did happened on the last day, it can't be that you have an entitlement to probation because the course would be over before your probation would even start.

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That's true, Your Honor.

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And that's an interesting hypothetical.

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But that's not what happened.

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Does it show that probation is not an entitlement?

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I wouldn't say so, Your Honor.

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I think that- How could it be an entitlement if you're not entitled to it?

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If the time for probation has lapsed, if it's the very last day of the course and you do, and again, this goes to what I was talking about when Judge Randolph asked me the question about the ability of the course's instructors to kick them out for anything.

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If you do something on the last day of the course that's so egregious that it does merit your removal from the course, then yes, the time for academic probation has lapsed and your removal from the course is merited in that scenario, Your Honor, you're correct.

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But in this scenario,

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The things for which he was given a poor evaluation did not happen on the final day of the course.

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They happened earlier.

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And in fact, he was given good evaluations.

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The two bad room invasions happened pretty late, right?

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They happened late, but he was initially

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I don't remember exactly how late they happened somewhat late, but certainly early enough that he could have been given retraining and retesting.

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And it's important to note also, he was initially given favorable evaluations for those.

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And then they were reevaluated and he was given an unfavorable evaluation on the very last day of the course, Your Honor.

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Surely it is not the job of this court to revisit all of those determinations that were made.

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in an intelligence course run by our military.

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No, of course not, Your Honor.

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I would never make that argument.

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That's sort of what it sounds like you're asking us to.

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Oh, no.

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Oh, no.

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Quite the contrary, Your Honor.

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All that Major Dutt is asking is that his arguments be fairly considered by the correction board.

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And based on this record, it's important to

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I just have to say I mean this isn't a rulemaking where we sometimes remand for an agency to provide more reasons about a rule right that affects private rights going forward prospectively I mean this is essentially a board of corrections is much more like an adjudication.

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Right and adjudication of whatever some kind of.

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You know, he'd like to have his records corrected.

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It's a review of an application.

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Right.

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It's a review of an application.

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And if we determine that there's substantial evidence in the record to support that determination, why isn't that sufficient?

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I mean, what would be the reason to remand for the board to say a few more words about what they did?

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So this court is held in Christ versus Secretary of the Air Force that the board must give a reason that this court can measure as to why it made its decision.

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A reason as to as to arguments that might affect the outcome, right?

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As to all of the reasons, and so the board could fairly.

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With the board, if the board finds that certain arguments are frivolous, the board is mandated to say that too.

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The board can't simply, that's where the standard in Christ, the board has to give a reason the court can measure commit.

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If the board finds that the arguments are frivolous, they have to indicate that and they have to indicate why so that this court can determine why the agency made the decision it made.

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Otherwise, there's nothing for this court to defer to.

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Any further questions?

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Thank you.

[00:17:38] Speaker 04:
Good morning, your honors may please the court Bradley Silverman for the secretary.

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That's argument on appeal is that the board failed to consider three points that he had raised to it.

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This argument fails for three reasons.

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First, can you speak up a little bit?

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I'm sorry.

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Is this better?

[00:17:56] Speaker 04:
Yes.

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Uh, Doug's argument fails for three reasons.

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First, the three points that he had raised to the board were not significant.

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They could not have changed the outcome.

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So the board was not in fact required to consider them at all under this court's case law.

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Second, and in any event, the board did consider each of his arguments when the opinions are read fairly and holistically.

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Third, and in any event, even assuming for argument's sake that the board did not consider these arguments,

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any error was harmless, essentially for the same reason that his three points were not significant in the first place.

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Let me start with the first point.

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This court has held in Roberts, the United States, that it is not error when the board fails to consider an argument that is not significant.

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Likewise,

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the case that my colleague on the other side was citing, this court determined that it was error for the board not to consider an argument that was not frivolous on its face and, and this is the language that is omitted from Dutt's brief, and could affect the board's ultimate

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disposition and this follows from the state farm standard which you know provides that an agency acts arbitrarily and capriciously when it entirely fails to consider an important aspect of the problem.

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If an argument is not significant if it's not the sort of thing that could make a difference to the outcome it's not an important part of the problem.

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Now each of duds arguments individually on their own terms do could not are not meritorious, but that's especially so when you consider.

[00:19:48] Speaker 04:
Not just the way he's saying that the board erred, but that in conjunction with the relief he's requesting, which is to essentially be retroactively deemed to have passed the course, qualified to perform highly sensitive human intelligence collection operations for the military.

[00:20:08] Speaker 02:
Is there an age limit?

[00:20:10] Speaker 04:
An age limit for the course?

[00:20:12] Speaker 04:
Yeah.

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I am not aware of one, and I am not aware of any reason to think that he would have reached out.

[00:20:19] Speaker 04:
What would his title have been had he passed the course?

[00:20:24] Speaker 04:
I'm not sure what the title would have been.

[00:20:26] Speaker 02:
Intelligence officer?

[00:20:28] Speaker 04:
I'm not sure what the title would have been.

[00:20:29] Speaker 04:
It would have been a certification that he could perform these operations.

[00:20:33] Speaker 04:
I don't know specifically what title would have accompanied that.

[00:20:37] Speaker 05:
I had a question similar to Judge Randolph's.

[00:20:38] Speaker 05:
What would the course have gotten him?

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What can he do after successfully completing the course that he couldn't do before?

[00:20:48] Speaker 04:
Well, he would have been eligible, essentially, to perform a certain type of sensitive human intelligence collection operation.

[00:20:59] Speaker 04:
I'm not exactly sure what that would entail.

[00:21:01] Speaker 04:
This is a highly classified area.

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And so the record does not go into great detail.

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withholding anything from you.

[00:21:09] Speaker 04:
The record just does not provide this.

[00:21:10] Speaker 04:
As you can see, it's extremely redacted.

[00:21:14] Speaker 04:
Would it have been a promotion?

[00:21:16] Speaker 04:
Promotion?

[00:21:17] Speaker 04:
I'm not sure if it's a promotion exactly or more like a certification.

[00:21:22] Speaker 04:
You can now, you can do this, which is not necessary.

[00:21:24] Speaker 02:
The reason I'm asking that question is twofold.

[00:21:28] Speaker 02:
If in fact the board's retroactively said he passed, would he be entitled to back pay?

[00:21:37] Speaker 04:
I don't believe so, but I'll be very honest, I cannot say that with certainty.

[00:21:47] Speaker 04:
I don't think that's the case, but I would be lying if I said I knew that for a fact.

[00:21:53] Speaker 04:
I'll do my best not to.

[00:21:58] Speaker 04:
So let's look at each of the arguments that he makes.

[00:22:01] Speaker 04:
First, he says that the course instructors

[00:22:05] Speaker 04:
selectively administered room incursion exercises.

[00:22:09] Speaker 04:
But the record makes clear why he was given additional room incursion exercises.

[00:22:14] Speaker 04:
He had previously messed up a different assignment, and these additional exercises were a way to provide him an additional opportunity to succeed.

[00:22:23] Speaker 04:
So far from holding him to a higher standard, this was giving him an extra chance to not perform poorly.

[00:22:31] Speaker 04:
To the extent that there was any inconsistent treatment, it was to his benefit.

[00:22:36] Speaker 04:
Second, he argues that the course instructors were required to put him on academic probation.

[00:22:43] Speaker 04:
And that is just not what the relevant language says.

[00:22:47] Speaker 04:
He focuses on the language that a student who performs poorly, quote, is subject to academic probation.

[00:22:57] Speaker 04:
And he construes the phrase subject to, to mean they must put him on academic probation.

[00:23:02] Speaker 04:
But that's just not what that means.

[00:23:04] Speaker 04:
To offer an example,

[00:23:06] Speaker 04:
If your employer says employees are subject to random drug testing, what that means is they might drug test you, not that they definitely will drug test you.

[00:23:19] Speaker 04:
Here, too, to say that you're subject to academic probation.

[00:23:22] Speaker 05:
That same subsection, though, says students will be given mandatory remedial training.

[00:23:28] Speaker 05:
That seems more like a guarantee than the subject to probation.

[00:23:34] Speaker 04:
It does say that, but there are a couple of points on that.

[00:23:36] Speaker 04:
First, he was, in fact, given some retraining.

[00:23:39] Speaker 04:
You all disagree about that?

[00:23:41] Speaker 04:
Well, actually, I don't think so, because in his own brief, he acknowledges that

[00:23:46] Speaker 04:
The course, the room incursion exercises, at least that he had been told that they were provided to make up for his previous shortcomings in other areas.

[00:23:58] Speaker 05:
Let's say I'm persuaded by him that he was not given remedial training.

[00:24:04] Speaker 05:
I think you can still win.

[00:24:05] Speaker 05:
So tell me how you can still win.

[00:24:06] Speaker ?:
OK.

[00:24:07] Speaker 04:
So let's say he was not given remedial training.

[00:24:10] Speaker 04:
Even so, the most that that argument could establish for him is that he would be entitled to take the course again.

[00:24:19] Speaker 04:
If that's the relief he's asking for, it'd be a different story.

[00:24:22] Speaker 04:
But he's not asking for that.

[00:24:24] Speaker 04:
And in fact, there's no dispute that he can take the course again.

[00:24:28] Speaker 04:
He was allowed to.

[00:24:29] Speaker 04:
He chose not to.

[00:24:30] Speaker 04:
What he's instead asking for is, don't just let me do it again.

[00:24:34] Speaker 04:
Instead, just say I passed.

[00:24:37] Speaker 04:
Even accepting his arguments that he was not given training, nothing about that means that he actually passed the course.

[00:24:44] Speaker 05:
And I think it would be quite unreasonable for the board to say, you didn't pass, you should have been given the training so that you learned the skills to allow you to pass.

[00:24:58] Speaker 05:
And it was wrong that you weren't given that retraining.

[00:25:03] Speaker 05:
So what we're going to do is we're going to say that you did pass and have the skills necessary to do these very sensitive intelligence operations.

[00:25:13] Speaker 05:
And then next thing you know, this guy's going to be behind enemy lines undercover as an intelligence operative without the skills to survive and without the skills to protect his fellow agents.

[00:25:25] Speaker 05:
That seems like a very, very unreasonable thing to ask the corrections board to do.

[00:25:29] Speaker 04:
Well, I agree completely, yes.

[00:25:31] Speaker 04:
I mean, I think it's important to remember this is not just an academic exercise here.

[00:25:36] Speaker 04:
If he were to get the relief he seeks, that is what would happen.

[00:25:40] Speaker 04:
There are real stakes on that.

[00:25:43] Speaker 05:
I think none of that, you might not like this as well, is what I just said.

[00:25:47] Speaker 05:
None of that changes that you look at this record, and there's at least a decent chance that what happened is he noticed some things in this course that were bad practices.

[00:25:57] Speaker 05:
including not protecting sensitive information.

[00:26:01] Speaker 05:
He blew the whistle.

[00:26:03] Speaker 05:
The people he blew the whistle against got mad at him, and they punished him by not giving him the training or the fair shake that he was entitled to.

[00:26:13] Speaker 05:
And I think there's a decent chance that that happened, but I think it doesn't mean that he gets a diploma that he didn't earn.

[00:26:24] Speaker 04:
I agree with you on the second part.

[00:26:25] Speaker 04:
I think it's speculative to say that this, you know, that he was retaliated against.

[00:26:30] Speaker 04:
That is certainly what he says.

[00:26:31] Speaker 04:
The evidence for that just isn't there.

[00:26:35] Speaker 01:
Are there whistleblower protections for members of the military?

[00:26:40] Speaker 01:
He doesn't bring a whistleblower claim.

[00:26:42] Speaker 04:
He doesn't bring a whistleblower claim, no.

[00:26:49] Speaker 04:
If there are no further questions.

[00:27:02] Speaker 03:
Thank you, Your Honors.

[00:27:04] Speaker 03:
I have a few points to make in response to some of the things that my friend across the aisle just said.

[00:27:11] Speaker 03:
First of all, he mentioned that none of Dutt's arguments could have changed the outcome.

[00:27:17] Speaker 03:
I think it's important to contextualize again the obligation that this court and that other courts have found that Military Correction Board has to thoroughly review the record, correct any injustice, and explain

[00:27:33] Speaker 03:
why an argument is frivolous or non-frivolous.

[00:27:37] Speaker 03:
So I think that if the board had found that an injustice had occurred, they have an obligation to fashion remedy.

[00:27:44] Speaker 03:
They didn't explain why, in response to Major Dutt's arguments, they were not going to fashion remedy in his favor.

[00:27:53] Speaker 03:
There was also some mention about

[00:27:56] Speaker 03:
Providing a benefit to major dot forget by giving him room intrusion exercises that weren't given to other students.

[00:28:02] Speaker 03:
Those are the room intrusion exercises that he failed.

[00:28:05] Speaker 03:
So I think that major dots contention is how can it be said to be a benefit to me if I'm being given exercises and then I'm failing them.

[00:28:13] Speaker 03:
And that's the reason I'm failing out of the course.

[00:28:16] Speaker 03:
I think in conclusion, I'd like to direct this court to to

[00:28:20] Speaker 03:
pertinent sources of information.

[00:28:22] Speaker 03:
First, in Jackson v. Mabus, Justice Kavanaugh writing for this court stated very forcefully in response to an application put forward by a plaintiff applicant who it must be noted did not even contend that the correction board hadn't thoroughly reviewed his arguments.

[00:28:40] Speaker 03:
Justice Kavanaugh said, this court has previously cautioned the boards for correction of military records that they must sufficiently explain their reasoning in order to have their decisions sustained.

[00:28:51] Speaker 03:
Despite our admonitions, the board's explanation for denying Jackson's request was thinner than it should have been, unlike the board's detailed explanation for denying Jackson's initial application for correction.

[00:29:01] Speaker 03:
We again urge the relevant boards to take care to sufficiently address each non-frivolous claim raised by an applicant for record correction.

[00:29:12] Speaker 02:
What's their caseload, do you know?

[00:29:15] Speaker 03:
Excuse me?

[00:29:15] Speaker 02:
What is their caseload, do you know?

[00:29:18] Speaker 03:
The boards.

[00:29:19] Speaker 03:
They have thousands of cases every year.

[00:29:23] Speaker 02:
And how many members?

[00:29:25] Speaker 03:
So there are different panels within the board itself.

[00:29:29] Speaker 03:
Each panel consists of three members.

[00:29:32] Speaker 03:
with thousands of cases.

[00:29:34] Speaker 03:
But there are multiple panels, as there are multiple panels of this court, your honor.

[00:29:39] Speaker 03:
On page 33 of his brief, the secretary concedes that the board's overall conclusion, quote, didn't, or excuse me, was not expounding upon each of Dutt's discrete arguments.

[00:29:54] Speaker 01:
Mr. Mayor, you're out of time, so if you could just wrap it up.

[00:29:56] Speaker 01:
Yes, thank you, your honor.

[00:29:57] Speaker 03:
That's all I have to say.

[00:29:58] Speaker 01:
Thank you.

[00:30:00] Speaker 01:
Case is submitted.