[00:00:00] Speaker 05: Please be seated. [00:00:02] Speaker 05: We'll start our afternoon session with some admissions to the bar of this court. [00:00:09] Speaker 05: Ms. [00:00:09] Speaker 05: Patel, will you come forward? [00:00:13] Speaker 05: No. [00:00:14] Speaker 05: Ms. [00:00:14] Speaker 05: Patel. [00:00:15] Speaker 05: Oh, I thought she said Ms. [00:00:18] Speaker 05: McAnough. [00:00:19] Speaker 05: Sorry. [00:00:19] Speaker 05: I invite Judge O'Malley to make an appropriate motion, if you wish. [00:00:23] Speaker 03: These are not done in order of priority, so don't worry. [00:00:28] Speaker 03: I move the admission of Priyata Patel, who's a member of the bar and is in good standing with the highest court of New York. [00:00:35] Speaker 03: I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications. [00:00:41] Speaker 03: In fact, I have [00:00:44] Speaker 03: intimate knowledge of her credentials, because she not only is a current law clerk, but previously was a judicial intern for me. [00:00:51] Speaker 03: And she comported herself so well that I offered her an opportunity to come back. [00:00:58] Speaker 03: And before coming back, she also had interned for Judge Clark in the Eastern District of Texas, making sure that she's covering the whole landscape. [00:01:07] Speaker 03: And she worked at Wild Godshall. [00:01:09] Speaker 03: So I got very lucky to have someone with this kind of experience. [00:01:13] Speaker 03: She's a GW grad, and I have to thank Dean Whelan for referring her to me. [00:01:20] Speaker 03: Priya has been a wonderful addition to chambers. [00:01:23] Speaker 03: She's worked really hard on some very important cases, and I even got to participate in her wedding ceremony. [00:01:31] Speaker 03: So I commend Priyata Patil to you. [00:01:34] Speaker 03: She's still weighing her options as to where she's going to go, so we're not going to commit her to anything right now. [00:01:40] Speaker 03: But I certainly support her desire to join this bar. [00:01:44] Speaker 05: Thank you, Judge O'Malley. [00:01:45] Speaker 05: The panel will vote on the motion. [00:01:48] Speaker 05: Do you have a vote? [00:01:49] Speaker 01: I do. [00:01:50] Speaker 01: I vote aye. [00:01:51] Speaker 05: And I vote aye. [00:01:53] Speaker 05: Will you, for the moment, step back while I invite Mr. Dunn to come forward? [00:02:01] Speaker 05: Then I again invite Judge O'Malley to make whatever motion she wishes. [00:02:08] Speaker 03: I have to go back to the same script language. [00:02:10] Speaker 03: I move the admission of Eric Dunn, who's a member of the bar and is in good standing with the highest court of California. [00:02:16] Speaker 03: I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications. [00:02:23] Speaker 03: I am uniquely aware of his qualifications because he is a current law clerk for me. [00:02:31] Speaker 03: Before he was a law clerk for me, he was a law clerk to Rod Gilstrap. [00:02:38] Speaker 03: in the Eastern District of Texas. [00:02:40] Speaker 03: Again, we are covering the landscape to make sure we figure out what goes on in all these district courts. [00:02:47] Speaker 03: And between his position with Judge Giltrap and with me, he was a legal fellow at the U.S. [00:02:57] Speaker 03: Attorney's Office for the District of Columbia. [00:02:59] Speaker 03: And when he actually leaves here, he is going to the Department of Justice, their antitrust division, where he is going to be a special advisor to the head of the antitrust division on the intersection of IP and antitrust. [00:03:16] Speaker 03: So it is a perfect setting for him. [00:03:21] Speaker 03: He's a graduate of the Stanford Law School, just a minor law school out there in California. [00:03:27] Speaker 03: He has been a fabulous addition [00:03:29] Speaker 03: to Chambers. [00:03:31] Speaker 03: Like all of these clerks, they're not only very talented, but they're just so fun to have around. [00:03:36] Speaker 03: So I certainly commend him to the bar. [00:03:39] Speaker 05: And I invite the panel to vote, Judge Wallach. [00:03:43] Speaker 01: Couldn't get into Berkeley. [00:03:47] Speaker 01: I'll give him an aye. [00:03:48] Speaker 05: An aye too. [00:03:51] Speaker 05: Good. [00:03:51] Speaker 05: Will you return to your seat temporarily? [00:03:54] Speaker 05: Well, I invite Ms. [00:03:55] Speaker 05: McKenna to come forward. [00:04:00] Speaker 05: And again, invite Judge O'Malley to make whatever motion she wishes. [00:04:06] Speaker 03: I move the admission of Christina DiBettigento McKenna, who's a member of the Bar and is in good standing of the highest court of New York. [00:04:15] Speaker 03: I have knowledge of her credentials, and I'm satisfied that she possesses the necessary qualifications. [00:04:21] Speaker 03: Again, [00:04:21] Speaker 03: Chrissy has been with me more than once. [00:04:25] Speaker 03: She, too, was a judicial intern. [00:04:27] Speaker 03: In fact, she and Priya were there at the same time. [00:04:30] Speaker 03: And I couldn't decide who I liked the best, so I asked them both to come back. [00:04:34] Speaker 03: It was quite a summer for us. [00:04:38] Speaker 03: Chrissy is also a graduate of the George Washington University. [00:04:41] Speaker 03: Again, I have to thank Judge Dean Whelan for referring her to me. [00:04:49] Speaker 03: She did a number of things while in law school, but we can't go into all of them now. [00:04:54] Speaker 03: But after law school and after interning for me, we made sure we covered everything. [00:05:00] Speaker 03: So she clerked for Judge Stark in the District of Delaware. [00:05:03] Speaker 03: So she had a wonderful experience with him. [00:05:06] Speaker 03: And I certainly am benefiting from all that he has taught her. [00:05:10] Speaker 03: When she leaves here, she's going back to Boston, and she's going to work with Oreck in their Boston office. [00:05:18] Speaker 03: And one of the reasons she's going back to Boston is that she and her husband Tim, her new husband Tim, relatively new, who is here with us today, [00:05:27] Speaker 03: have decided that they want to make their home in Boston, where they have other family members as well. [00:05:33] Speaker 03: So Chrissy, too, has been an amazing. [00:05:36] Speaker 03: Look at this three-some here. [00:05:39] Speaker 03: And along with my permanent law clerk, Lana, it's been an amazing year. [00:05:42] Speaker 03: So I, too, recommend that Chrissy be admitted to the bar. [00:05:48] Speaker 03: And I would like to personally thank all of them for being so wonderful during a very trying year for me. [00:05:55] Speaker 03: So I appreciate it. [00:05:56] Speaker 05: Thank you. [00:05:57] Speaker 05: We will again vote on the motion. [00:05:59] Speaker 05: What say you, Judge Moley? [00:06:01] Speaker 05: Aye. [00:06:01] Speaker 05: Say aye for me as well. [00:06:03] Speaker 05: So now will the three of you approach the bailiff who will administer the oath. [00:06:10] Speaker 02: Ms. [00:06:10] Speaker 02: Rachel Ryan, do you solemnly swear or affirm that you will comport yourself as an attorney and counsel of this court, outriding and according to law, and that you will support the Constitution of the United States of America? [00:06:23] Speaker 02: I do. [00:06:23] Speaker 02: I'm going to the bar of the United States Court [00:06:28] Speaker 05: Thank you. [00:06:29] Speaker 05: Welcome to the bar of this court, the three of you. [00:06:32] Speaker 05: We look forward to seeing you at argument time in the not-distant future. [00:06:38] Speaker 05: Thank you, Linda. [00:06:39] Speaker 05: Thank all three of you. [00:06:41] Speaker 05: Thank you, Judge O'Malley. [00:06:43] Speaker 05: We will proceed with the case scheduled for argument this afternoon. [00:06:49] Speaker 05: Number 18, 2038, ballot against the United States, Ms. [00:06:55] Speaker 05: Dawson. [00:07:11] Speaker 00: Good afternoon Judge Newman and may it please the court. [00:07:15] Speaker 00: My name is Alana Nightingale Dawson and I'm here today on behalf of Lieutenant Colonel Jason Engel. [00:07:21] Speaker 00: In 1996, Lieutenant Colonel Engel volunteered to serve this country in the United States Air Force. [00:07:28] Speaker 00: He did so for over 15 years before he was involuntarily discharged in November of 2011. [00:07:35] Speaker 00: During that time, he served his country honorably by following the rules set forth by the Secretary of Defense and the Secretary of the Air Force. [00:07:42] Speaker 00: When the time came for his service to be reviewed and a determination to be made about whether he should be selectively continued in the service to retirement, he expected that the Secretary of the Air Force would likewise follow the regulations set forth by the Secretary of Defense. [00:07:56] Speaker 00: But the Secretary of the Air Force did not. [00:07:59] Speaker 00: that decision and the decision of the Court of Federal Claims affirming the decision to discharge Mr. Engel should be reversed. [00:08:06] Speaker 03: Why isn't this one of those types of issues that just relates to military staffing and therefore would generally be non-justiciable? [00:08:19] Speaker 00: In this circumstance, and as this court has said numerous times, while there is certainly a realm in which this court does not get involved like military staffing, as Your Honor noted, when the Secretary of Defense or the Secretary of the Air Force puts forth regulations that bind or limit their discretion, [00:08:34] Speaker 00: then this court does review whether or not actions occur outside of that discretion or in violation of that regulation. [00:08:42] Speaker 00: Just as this court reviews whether or not actions are taken contrary to law, Congress specifically contemplated that decisions of selection boards such as the selection board here that make a decision about continuation [00:08:54] Speaker 00: would be reviewed under the same procedures and the same standard as set forth in the APA, and that's in section 1558. [00:09:01] Speaker 00: It's reviewed to determine whether it's arbitrary or capricious, whether it's supported by substantial evidence, or whether it's contrary to law. [00:09:09] Speaker 00: This court did so in its decision in Berkeley. [00:09:12] Speaker 00: So Berkeley was a case where this court reviewed whether or not a memorandum of instruction, similar to the memorandum of instruction here, that specified how officers should be dealt with by a selection board was contrary to law. [00:09:25] Speaker 00: In that case, the question was whether or not the instructions given to the board were contrary to the equal protection clause of the Constitution. [00:09:31] Speaker 00: In this case, the question is whether or not [00:09:34] Speaker 00: The actions, the memorandum of instruction given by the Secretary of the Air Force was contrary to the regulation that was issued by the Secretary of Defense. [00:09:42] Speaker 01: Let me interrupt you for a minute. [00:09:45] Speaker 01: You identified Lieutenant Colonel Engel? [00:09:49] Speaker 00: Yes, Your Honor. [00:09:51] Speaker 01: My understanding of this was that this case dealt with O4 majors. [00:10:00] Speaker 01: who were passed over for promotion two times to Lieutenant Colonel. [00:10:04] Speaker 00: That is correct, Your Honor. [00:10:05] Speaker 01: Was he promoted? [00:10:06] Speaker 00: He was promoted after he was involuntarily discharged. [00:10:09] Speaker 00: So he was involuntarily discharged from the service in November 2011, and then he was in the reserves and he was called back up. [00:10:17] Speaker 00: And he was actually called back up involuntarily and deployed to Kyrgyzstan less than six months after his involuntary discharge in this case, and while serving on active duty in the reserves, was promoted to Lieutenant Colonel. [00:10:31] Speaker 00: And, Your Honor, that demonstrates that this is not a situation where the Air Force had any concerns about whether or not Lieutenant Colonel Engel should continue to serve his country, whether he should remain in the service. [00:10:43] Speaker 00: It appears a decision of expediency, and while we certainly respect the military's ability to make decisions, as Your Honor recognized, about personnel matters, the right to do that is circumscribed by the regulations set forth by the Secretary of Defense. [00:10:59] Speaker 00: It's important to note that Congress makes choices about certain choices about how the military can operate. [00:11:06] Speaker 00: And in so doing, it also delegates decision-making authority with respect to regulations to certain branches. [00:11:12] Speaker 00: And that's critical here. [00:11:14] Speaker 00: In some circumstances, the Congress chooses to give regulatory authority to the specific secretaries of the various military branches. [00:11:23] Speaker 00: So in Section 1558E, for example, [00:11:26] Speaker 00: Congress said that the secretaries of the military branches could issue regulations. [00:11:32] Speaker 00: In section 637, which is the section at issue in this case, Congress did not give regulatory authority to the secretaries of the military branches. [00:11:41] Speaker 00: Instead, they gave regulatory authority to the Secretary of Defense. [00:11:46] Speaker 03: So the regulation at issue does say that [00:11:53] Speaker 03: the individuals should normally be selected for continuation, and then it goes to refer to the six-year period. [00:12:00] Speaker 03: So would it be a reasonable interpretation of the regulation to say that the normally could modify the six years? [00:12:09] Speaker 03: In other words, that the secretary would have the right to make it five years or four years or three years if they chose to do so? [00:12:18] Speaker 00: Your Honor, there's an important clause that comes after the statement, about six years. [00:12:22] Speaker 00: And it says, this shall normally in six years. [00:12:24] Speaker 00: And then it specifically notes, as to an intellectual officer, unless there are unusual circumstances, such as derogatory information in that officer's file. [00:12:34] Speaker 00: And in our view, this court's question touched on exactly the concern that exists and the problem with the decision here. [00:12:39] Speaker 00: The question being – and I'm going to read from this court's order – whether the Secretary of the Air Force properly concluded that unusual circumstances justified narrowing the continuation eligibility from six years before retirement to five years pursuant to the applicable regulation. [00:12:54] Speaker 00: And so in our view, any – as a threshold matter, we don't believe that the Secretary of the Air Force had any authority to change the regulation, and perhaps this is the threshold answer to your question, Your Honor. [00:13:04] Speaker 00: We don't believe the Secretary of the Air Force had the authority at all to change the window because the regulatory authority was granted by Congress to the Secretary of Defense. [00:13:14] Speaker 00: And as you can actually see in the 2012 version, which we're happy to submit to the court if the court would like to review, in the 2012 version and then continue on to the 2017 version of the same regulation, the Secretary of Defense actually had a different view on the proper window, and the Secretary of Defense changed it to four years. [00:13:33] Speaker 00: That's a decision that Congress reserved to the Secretary of Defense and did not grant to the Secretary of the Air Force. [00:13:39] Speaker 00: In addition, the narrow, unusual circumstances, it's important to note, is circumscribed, and it's circumscribed by the such-as derogatory information clause. [00:13:50] Speaker 00: This court has said, both in Airflow Tech versus United States, which is at 524, F3rd, 1287, and in Nielsen versus Shinseki at 607, F3rd, 802, [00:14:03] Speaker 00: that the principle of a just and generous, which is the notion that a term is defined by the specific term or terms that follow, does apply even when a single term follows the term being defined. [00:14:14] Speaker 00: The quote from Airflow was, we see no reason why the principle of a just and generous cannot apply in this context, where a general term follows one expressly set forth specific term. [00:14:25] Speaker 00: And in both of those cases, this court was interpreting provisions where a general term was defined by one specific term [00:14:32] Speaker 00: and found that the specific term narrowed the meaning of the general term. [00:14:35] Speaker 03: Did those cases have the such as language? [00:14:38] Speaker 00: I don't believe they had the such as language. [00:14:40] Speaker 00: Well, I can come back on rebuttal and confirm. [00:14:42] Speaker 00: But they were situations where there was a general term, and they had a specific term that followed. [00:14:47] Speaker 00: I don't remember if it was the such as clause or some other modifier. [00:14:50] Speaker 00: But it was language that this court found [00:14:53] Speaker 03: was it an example of what qualified as the government argues that by use of the such as language, it means it's completely open ended as to what can constitute unusual circumstances. [00:15:03] Speaker 03: Do you disagree with that? [00:15:04] Speaker 00: Absolutely, Your Honor, especially because the provision at issue in the 1996 version of the same regulation [00:15:10] Speaker 00: had the unusual circumstances clause and did not have the such as clause. [00:15:14] Speaker 00: And so if it really is the case that the such as clause is meaningless, A, that would suggest that the Secretary of Defense is putting superfluous language into a regulation, a regulation that the officers of all of the military branches are looking to and relying on their supervisors to follow for no reason, because it has no meaning. [00:15:33] Speaker 00: And we simply don't accept that. [00:15:34] Speaker 03: So it's your position that by adding the such as language that the Secretary of Defense was [00:15:40] Speaker 03: intentionally narrowing the categories of unusual circumstances for this particular regulation. [00:15:45] Speaker 00: Or at a minimum, clarifying what was meant all along. [00:15:49] Speaker 00: We don't necessarily believe that unusual circumstances wasn't intended to focus on this narrow, but at a minimum, it was clarified. [00:15:56] Speaker 00: And perhaps it's the case that it was narrowed. [00:15:59] Speaker 00: But whatever was the reason behind adding that language, we certainly don't believe that there was no reason, or there would have been no reason to change it from the 1996 version to the version that went into effect in 2007. [00:16:10] Speaker 01: I want you to discuss something entirely different, because I feel a little blindsided on this. [00:16:17] Speaker 01: It disturbs me that your client was promoted. [00:16:23] Speaker 01: I mean, it's nice, but. [00:16:27] Speaker 01: Because the whole thrust of the reg overall is that the person is no longer promotable. [00:16:36] Speaker 01: And we're going to [00:16:41] Speaker 01: keep them in because they've served for this long, and we want to give them our opportunity to retire at major's pay. [00:16:50] Speaker 01: But it seems to me that the standards for promotion are exactly the same for the reserve as they are for their active duty. [00:16:57] Speaker 01: And I don't see how somebody is promotable after they're passed over. [00:17:10] Speaker 01: I'm not familiar. [00:17:13] Speaker 01: I don't know. [00:17:14] Speaker 01: I mean, it just blindsides me. [00:17:16] Speaker 01: I didn't go back and research it. [00:17:19] Speaker 01: It's been a long time since I was an active duty officer, and I just don't know. [00:17:24] Speaker 00: Yes, Your Honor. [00:17:25] Speaker 00: And I would say as a threshold matter, it would certainly yield to the government to explain why, in the first instance, Lieutenant Colonel Ingle was passed over by the initial promotion board and was then promoted. [00:17:35] Speaker 00: What we will note is, and the reason this was not briefed in the briefing was both because, at least in the briefing that we put forth, was both because this court's order was very specific to briefing the unusual circumstances. [00:17:46] Speaker 00: We are certainly happy to submit supplemental briefing on that and any other issue the court would like us to address. [00:17:52] Speaker 00: Well, you would also note that in terms of the challenge that was brought before the Air Force Board for Crushing of Military Records and that was brought up through the Court of Federal Claims, it wasn't a challenge to the promotion decision. [00:18:06] Speaker 00: It was a challenge to the non-continuation. [00:18:09] Speaker 01: So that's the reason it has been brought up. [00:18:11] Speaker 00: We don't – I don't know the specifics of the other – I mean, I think the government would have to speak to that. [00:18:16] Speaker 00: We tried – I know Lieutenant Colonel Engel – we know about the – limited amounts about the other plaintiffs. [00:18:21] Speaker 00: We – speaking for myself and the attorneys – don't represent them. [00:18:25] Speaker 00: And I know we tried to get information about the other 156 officers who were involuntarily discharged. [00:18:31] Speaker 00: I know Lieutenant Colonel Engel tried via FOIA requests and was not able to get information because of personnel limitations. [00:18:37] Speaker 05: Are you technically representing only one person? [00:18:41] Speaker 00: Yes, Your Honor. [00:18:42] Speaker 05: Okay. [00:18:43] Speaker 00: Yes, Your Honor. [00:18:44] Speaker 00: We don't take a position on whether or not the other officers would be entitled to relief. [00:18:49] Speaker 00: My understanding is there may be a mechanism in the court of federal claims for them to come back to the court, but we do not represent them, and so do not take a position on that. [00:18:59] Speaker 05: Okay. [00:18:59] Speaker 05: Well, let's hear from the government. [00:19:01] Speaker 05: Okay. [00:19:01] Speaker 00: Thank you, Your Honor. [00:19:10] Speaker 05: Mr. Grimaldi, clarify for me, Mr. Grimaldi. [00:19:14] Speaker 06: What's the status? [00:19:15] Speaker 06: How's that work? [00:19:17] Speaker 06: For Lieutenant Colonel Angle, actually I am surprised at that today myself. [00:19:22] Speaker 06: I was aware by looking at the various complaints this morning that Mr. I hope I don't mispronounce his name, Kirk Kenleyan, which was one of the other plaintiffs below, was a lieutenant colonel in the reserves, was unaware of Mr. Angle's promotion in the reserves. [00:19:39] Speaker 06: uh... this is a matter that i would have to actually ask agency council as to what happened exactly with mister angles because uh... as your honors are aware the record that we use below was a representative record and it was mister bowd's record not mister angle so i don't have his military files per se i can only speculate at this point that when he was put up for promotion as uh... a reserve officer that he was the best qualified [00:20:08] Speaker 06: reserve officer to make Lieutenant Colonel at that time. [00:20:11] Speaker 01: It's a different pool, a different time period, but that's all speculation. [00:20:24] Speaker 03: that in this regulation, it's clear that the unusual circumstances had to relate to something disqualifying in someone's background, then wouldn't his later promotion be completely inconsistent with a finding of unusual circumstances here? [00:20:42] Speaker 06: We are unaware of any derogatory information or any decision regarding Mr. Engels that was personal in nature. [00:20:50] Speaker 06: That's not what the record shows here. [00:20:52] Speaker 03: Right, so you would concede that you have to win on the conclusion that unusual circumstances is broader than that? [00:21:00] Speaker 06: No, we have another argument, two other arguments if you will, Your Honor, before we even get to that. [00:21:04] Speaker 06: And that would be just disability and the second, that a plain [00:21:07] Speaker 03: Isn't your justiciability argument much, much more difficult today than it was before the Supreme Court decided its Department of Commerce versus New York case? [00:21:18] Speaker 03: I mean, there Chief Justice Roberts made it very, very clear that virtually everything is judiciable. [00:21:25] Speaker 06: Well, Your Honor, we're talking about the secretary's management of the military forces here. [00:21:32] Speaker 06: And that is already, you look at Orlaff v. Willsbury and those cases that go back to the Supreme Court that talk about the discretion that the service branch secretaries have in managing their own. [00:21:44] Speaker 03: But the regulatory authority that was granted here was granted to DOD. [00:21:48] Speaker 03: That is correct. [00:21:49] Speaker 03: Not to the secretary, correct? [00:21:50] Speaker 03: Correct. [00:21:51] Speaker 03: And so your position is the secretary under the auspices of managing [00:21:55] Speaker 03: that its forces has the right to rewrite Department of Defense regulations. [00:22:02] Speaker 06: Well, there was no rewriting here, Your Honor. [00:22:03] Speaker 06: We would disagree with that. [00:22:04] Speaker 03: Changing six years to five years was not rewriting? [00:22:06] Speaker 03: That is correct. [00:22:06] Speaker 06: It says normally six years, Your Honor. [00:22:08] Speaker 06: That's what Mr. Angle is ignoring here. [00:22:10] Speaker 06: I mean, we do have multiple levels of argument. [00:22:12] Speaker 06: First here, that those two sentences, the one addressing unusual circumstances, applies to when the Air Force or another branch is non-continuing a single officer. [00:22:22] Speaker 06: And then the following sentence, which I may read to you, Your Honors, [00:22:25] Speaker 06: when the secretary of the military department concerned intends to not to continue larger pools of officers in the grade of 04, which is majors, your honor. [00:22:36] Speaker 05: Yes, it's a larger pool. [00:22:38] Speaker 05: Is that what you're primarily relying upon, the general downsizing? [00:22:44] Speaker 06: Yes, Your Honor, that there was 245 majors who were put up in that year, that particular year of majors. [00:22:51] Speaker 06: I would call them a cohort of majors, same class. [00:22:54] Speaker 03: Why doesn't that simply mean if all of a sudden the Secretary, the particular Secretary, is finding a lot of people to have bad things in their background that don't qualify them, that the Department of Defense needs to know that? [00:23:10] Speaker 06: Well, Your Honor, if you look at the first sentence of paragraph 6.3, and you look at not only that, but also the House report that we mentioned regarding DOPA, this is the law we're talking about here, the Defense Officer Personnel Management Act, the purpose of these selective continuation boards is twofold, and that is first, for actually management [00:23:33] Speaker 06: of the Air Force, the service branch itself. [00:23:37] Speaker 06: And second is to retain individuals when necessary, such as in this case, how there were instructions to retain Catholic chaplains and bomber pilots, for instance. [00:23:48] Speaker 06: What we have here is a force management tool. [00:23:51] Speaker 06: And if you look at paragraph 6.3, and this is Supplemental Appendix, page 120, the first sentence is talking about the needs of the respective military branches. [00:24:03] Speaker 06: That is why we have these Selected Continuation Boards. [00:24:05] Speaker 03: But aren't there completely different regulations that relate to how to separately reduce force? [00:24:16] Speaker 06: Yes, under 10 USC 638, the secretaries of the various branches can early retire or remove individuals regardless of whether they've been twice Passovered. [00:24:30] Speaker 03: So, yes. [00:24:30] Speaker 03: So why didn't the secretary use that vehicle instead of attempt to use this vehicle? [00:24:35] Speaker 06: There was no need for the secretary to pick 638 over 637 in this instance because these 245 majors had terminal careers. [00:24:48] Speaker 06: Under 632A of 10 USC, when they were non-selected a second time, their career was terminal. [00:24:56] Speaker 06: And it was the discretion of the secretary to retain them by using a selective continuation board. [00:25:02] Speaker 03: And you think it's the discretion of the secretary to change the six year time frame to arbitrarily change it from six to five. [00:25:09] Speaker 03: For this person, change it from six to five. [00:25:11] Speaker 03: He just said, across the board, we're just going to rewrite this right here. [00:25:13] Speaker 06: Well, I would disagree that's arbitrary. [00:25:14] Speaker 06: It applies to everybody, Your Honor. [00:25:16] Speaker 06: It was a rule that was applied to everybody in that cohort for that year that were put forth. [00:25:23] Speaker 06: Instead of being six years from retirement, they were five years from retirement. [00:25:27] Speaker 06: It was a way for the secretary to draw a bright line and put those 245 majors [00:25:34] Speaker 06: before a selective continuation board to see if they should be continued. [00:25:38] Speaker 06: Why was that done? [00:25:39] Speaker 06: If we look at supplemental appendix page 109, the Air Force explained to the Corrections Board, the reason for that was because of the need for force management as well as maintaining a proper balance of the various ranks in the Air Force. [00:25:54] Speaker 03: So you're saying the unusual circumstances language is irrelevant to your argument? [00:26:01] Speaker 03: that that last sentence just means you can do whatever you want under this rule as long as you tell us. [00:26:06] Speaker 06: That is our primary argument. [00:26:07] Speaker 06: We do our response if this court disagrees and reads those two sentences as one action undertaken by the secretary as opposed to, we think, the plain meaning rule, which if the secretary is going to isolate a particular airman for non-continuation, there should be something individualized about the person's record that's unusual circumstances. [00:26:30] Speaker 01: Officer. [00:26:31] Speaker 06: Yes, thank you, Your Honor, because we're only talking about majors here. [00:26:35] Speaker 06: And if we're talking about a larger pool of majors, then at that point, the only thing that needs to be done is that notification clause to the Department of Defense, which there's no dispute occurred here. [00:26:49] Speaker 01: It's fair to say that there is a distinction between generalized force management and [00:26:58] Speaker 01: individual misconduct correct and they're not related I mean they're really not related at all right sense that there are lots of people serving honorably who didn't make that grade [00:27:11] Speaker 06: That is correct. [00:27:12] Speaker 06: And it is just the nature of what happened with DATMA, the Defense Officer Personnel Management Act. [00:27:19] Speaker 06: And if we look at the House report that, Your Honor, as we cited to in our briefing, and I apologize once... Let me ask you this. [00:27:26] Speaker 01: Yes, please. [00:27:27] Speaker 01: Is it still the policy of the armed forces in general that an officer is evaluated by the commander on a periodic basis? [00:27:37] Speaker 06: From my experience doing military pay cases, I've seen those evaluations, Your Honor. [00:27:41] Speaker 06: So I would speculate, yes. [00:27:43] Speaker 01: And those OER, the Officer Evaluation Reports, rank that individual against everybody else in their grouping. [00:27:53] Speaker 01: That's correct still. [00:27:54] Speaker 06: Yes, it's competitive. [00:27:55] Speaker 06: Promotions are competitive, Your Honor. [00:27:57] Speaker 06: Yes. [00:27:57] Speaker 06: Right. [00:27:58] Speaker 03: So you're saying that the six-year statement in the regulation just becomes irrelevant if he wants to get rid of a lot of people at the same time. [00:28:07] Speaker 06: Well, there was a notification provision. [00:28:09] Speaker 03: You could have said one year, right, under your theory. [00:28:12] Speaker 06: No, because the statutorily required under 632, Your Honor, to retain individuals who are two years. [00:28:20] Speaker 06: And the Congress has made that determination. [00:28:21] Speaker 03: Right, so it could have said two years despite this regulation. [00:28:23] Speaker 06: Yes, three years, four years, whatever the number. [00:28:26] Speaker 06: Yes, the Secretary has that discretion to manage his forces. [00:28:29] Speaker 03: Not the Secretary of Defense. [00:28:31] Speaker 03: The Air Force. [00:28:31] Speaker 03: You're saying the Secretary of the Air Force can completely rewrite DOD's regulations. [00:28:36] Speaker 06: It's not a rewriting, Your Honor. [00:28:37] Speaker 06: If you look at what on page 620 of the supplemental appendix, [00:28:43] Speaker 06: It says, first off, when we're talking about six years, and this is the, let me give you the right number here, Your Honors. [00:28:54] Speaker 06: This is the second sentence of paragraph 6.3 on Supplemental Appendix, page 120. [00:29:02] Speaker 06: So the first sentence is, it's a big one, Your Honors, and that's talking about the ability of the Secretary to convene a continuation board for the needs of the particular service. [00:29:14] Speaker 06: The second sentence is the six years language that you're talking about, Your Honor. [00:29:19] Speaker 06: And it says a commissioned officer on active duty list in the grade of 04, who was subject to discharge according to section 32, I'll skip the reference there, shall normally be selected for continuation if the officer will qualify for retirement according to those references within six years. [00:29:40] Speaker 06: So we're talking about normally retained here. [00:29:43] Speaker 06: The Secretary of Defense does not mandate [00:29:48] Speaker 06: the retention of officers within six years. [00:29:52] Speaker 03: In where there are unusual circumstances. [00:29:55] Speaker 06: Where there are two things, two possibilities, Your Honor. [00:29:57] Speaker 06: The first being the unusual circumstances you mentioned, and that's the next sentence, which mentions that the secretary concerned may, in unusual circumstances, such as when an officer's official personal record contains derogatory information, discharge an officer in voluntary accordance with section 632. [00:30:17] Speaker 06: Then in the following sentence, the sentence, the only sentence that mattered in this matter, your honor, because there was a larger pool, it discusses what happens when you have a group of majors, 245, for instance. [00:30:30] Speaker 03: But the larger pool still refers to six years. [00:30:33] Speaker 03: And the instructions that were given to the board said, don't do it unless they're within five years. [00:30:40] Speaker 03: So I don't understand how you can somehow take that sentence and remove the six years from it. [00:30:46] Speaker 06: Well, I'm not removing it from there because it says shell normally. [00:30:50] Speaker 06: What the secretary did here was take a sweeping action to pull a larger pool. [00:30:55] Speaker 06: What Mr. Engel is concerned with and what Your Honor's questions are going towards is the manner in which the secretary selected that larger pool. [00:31:04] Speaker 06: He selected that larger pool by narrowing the six-year window five years. [00:31:12] Speaker 03: Even though the sentence that talks about selecting a larger pool still refers to six years. [00:31:18] Speaker 06: Yes. [00:31:19] Speaker 06: Yes, you will qualify for retirement. [00:31:20] Speaker 03: Are you relying on our deference here? [00:31:24] Speaker 06: No, Your Honor. [00:31:24] Speaker 06: This is an action of the Secretary. [00:31:26] Speaker 06: We're relying upon the Secretary's inherent authority to manage his own force. [00:31:30] Speaker 03: But you're expecting us, though, to accept your interpretation of this regulation. [00:31:35] Speaker 06: Correct. [00:31:35] Speaker 03: And so how do you get there without deference? [00:31:39] Speaker 06: We're only the plain meeting, Your Honor. [00:31:41] Speaker 03: There has been no official... You think there's no ambiguity in this regulation? [00:31:45] Speaker 06: We think the plain meaning of it is clear that there's two different ways that this can be, that the Secretary can non-continue officers in this scenario, Your Honor. [00:31:55] Speaker 06: Regardless of whether Your Honor's agree with us or not, I can be happy to talk about, in the time I have remaining, the actual assertion of the unusual circumstances in this case. [00:32:08] Speaker 06: So even if Your Honor disagrees with me and believes that unusual circumstances are required here. [00:32:13] Speaker 05: But were unusual circumstances asserted, or you're talking only about this particular impoundment or about the [00:32:21] Speaker 05: The group before federal claims? [00:32:24] Speaker 06: The group, Your Honor, and that was on page supplemental appendix page 109 is the Air Force's explanation to the correction board. [00:32:31] Speaker 03: I thought you just conceded earlier that there were no unusual circumstances here. [00:32:36] Speaker 06: None pertaining specifically, to be very clear, your honor, none, nothing about Mr. Engel in particular. [00:32:42] Speaker 06: What the record shows is that the Air Force to the correction board explained that the unusual circumstances in fiscal year 2011 was an excess of airmen, which the record does establish, as well as the need to balance the force with having the appropriate amount of ranks, you know, officers in different ranks. [00:33:06] Speaker 05: is in the statute, is it not? [00:33:08] Speaker 06: I'm sorry, Your Honor, the downsizing. [00:33:10] Speaker 05: When you were saying unusual circumstances included the need to reduce the size of the force? [00:33:18] Speaker 06: Yes, because there was an excess over the end strength, the congressionally mandated end strength, and 10 USC 691 for fiscal year 11 had some 332,000 or so airmen that were permitted to serve. [00:33:33] Speaker 06: And at that time, there was some number of 333,070, I think, in excess of either. [00:33:40] Speaker 06: It's in the record, Your Honor. [00:33:42] Speaker 03: I believe it's 1,170. [00:33:43] Speaker 03: So to prevail on this argument, you would have to convince us [00:33:45] Speaker 03: unusual circumstances were not specific to the individual officer. [00:33:50] Speaker 06: Yes, we don't believe that. [00:33:51] Speaker 06: If you do read these two sentences, it's only one action that the secretary can take, the need to find unusual circumstances before removing any Air Force major, whether that be a single Air Force or a group, then the unusual circumstances is not limited to something personal. [00:34:11] Speaker 06: The fact that an example is provided is just simply an example, Your Honor. [00:34:15] Speaker 06: And the reason why we believe that is we [00:34:18] Speaker 03: make it the fact that it actually was a change to the regulation to add that example? [00:34:23] Speaker 06: Well, if you if you look at what the purpose of the of DOTMA is, Your Honor, and this is the House report that I was going to mention before, page 27 of it, and it's the House report that we do cite in our briefing. [00:34:38] Speaker 06: It's right before the actual enactment. [00:34:41] Speaker 06: It says that quote, the committee believes it is important to understand [00:34:47] Speaker 06: that these various selective continuation authorities are intended to be used sparingly and are primarily a means of reducing the numbers in senior grades when necessary, such as during a reduction in force. [00:35:00] Speaker 06: So Congress envisioned the use of 632 and 637 as another method of reducing the force when there is the need for what we would call a RAF reduction in force. [00:35:12] Speaker 06: So this [00:35:13] Speaker 06: is a force management tool, Your Honor. [00:35:16] Speaker 01: In a way, it goes hand in glove with the Posse Comitatus Act in the sense that both of them relate to Congress's ability to use the purse to control the armed forces. [00:35:27] Speaker 06: And that's correct. [00:35:28] Speaker 06: And that is even seen within, and this is supplemental page appendix 119, and under the policy of this Department of Defense instruction we've been talking about a lot today, Your Honor. [00:35:40] Speaker 06: Paragraph four, it mentions that the policy here is to retain competent and effective commissioned officers through the selective continuation process as a cost-effective means of satisfying skills. [00:35:54] Speaker 06: You're right, Your Honor. [00:35:55] Speaker 06: We do agree with that, that there is this cost element to this that runs through from Congress. [00:36:04] Speaker 06: If the Court has no further questions. [00:36:06] Speaker 05: Anything else for Mr. President? [00:36:09] Speaker 05: Any other questions? [00:36:10] Speaker 05: Thank you, Mr. President. [00:36:11] Speaker 06: Thank you, Your Honor. [00:36:14] Speaker 05: Mr. Johnson. [00:36:22] Speaker 00: Thank you, Your Honor. [00:36:23] Speaker 00: Just a few points in rebuttal. [00:36:26] Speaker 00: First, it's important to note that there were, in fact, two changes made by the Secretary of the Air Force to Section – to Department of Defense Instruction 1320.08. [00:36:36] Speaker 00: One was the arbitrary change from six years to five years. [00:36:41] Speaker 00: The second was, in fact, that change was really, as we note in our brief, more four years and seven months because in this particular circumstance, the Air Force, Secretary of the Air Force changed the date of calculation from the date of continuation to the date of convening of the board. [00:36:58] Speaker 00: And in fact, either of those errors here [00:37:00] Speaker 00: resulted in Lieutenant Colonel Engel being involuntarily discharged. [00:37:04] Speaker 00: Because at the time the board was convened, he was at 14 years, six months, and a number of days. [00:37:09] Speaker 00: And at the time he was discharged, he was at 15 years and a handful of months. [00:37:14] Speaker 00: And so even by the time he was discharged, had the Secretary of the Air Force not also changed the calculation date for those numbers of years, he would have been within the five years that the Secretary of the Air Force put forward. [00:37:25] Speaker 00: Second, the government continually relies on the legislative history and dogma, but ignores what was cited at page 12 of Lieutenant Colonel Engel's informal brief. [00:37:35] Speaker 00: Reading from the House report, the committee specifically said that it was the committee's strong desire that these officers, officers like Lieutenant Engel, be continued to 20 years of service as a matter of course, and that only in unusual circumstances would this authority not be fully utilized. [00:37:54] Speaker 00: In this case, Your Honor, there are two things to look at. [00:37:57] Speaker 00: Normally, the officers shall be continued in six – if they are within six years, Lieutenant Colonel Engel is in six years. [00:38:03] Speaker 00: The opposite of normal is unusual. [00:38:06] Speaker 00: And the unusual circumstances here were defined by the Secretary of Defense, Congress granted the Secretary of Defense the authority to issue that regulation and change it, and it was thus up to the Secretary of Defense to make any changes that were necessary, not the secretaries of individual military ranges. [00:38:20] Speaker 03: What did you make of the last sentence? [00:38:22] Speaker 00: Your Honor, exactly as your question to the government suggested, our view is that it is a notification provision. [00:38:28] Speaker 00: It is entirely reasonable to expect that the Undersecretary of Defense for Personnel and Readiness would want to know if suddenly a material or number or critical mass of officers in a particular military branch were not going to be continued. [00:38:42] Speaker 00: And we might want to review that to see if there's an agreement with the circumstances being identified, might want to review that to determine whether it affects budgets or how the overall military is going to be operated, because it is the undersecretary of defense's responsibility to ensure that these policies and procedures are. [00:38:58] Speaker 01: Let me ask you a question, which I'm sure is outside the record. [00:39:02] Speaker 01: But did Lieutenant Colonel Engel then [00:39:05] Speaker 01: transfer to the reserve immediately, or was he involuntarily recalled and placed in the reserve? [00:39:11] Speaker 00: My understanding is it's the latter, and I'd be happy to confirm with supplemental briefing, but my understanding was that involuntarily, well, he was involuntarily called to active duty. [00:39:18] Speaker 01: I'm not sure he was... Yeah, but that's different. [00:39:20] Speaker 00: To the reserves. [00:39:21] Speaker 00: I'm not sure, Your Honor, but I can certainly address that in a supplemental briefing. [00:39:24] Speaker 00: But the fact remains that he continues to serve this country. [00:39:27] Speaker 00: And so the notion – I mean, the government focuses on the cost-effective nature, but the reality here is that the government is getting the same service from Lieutenant Colonel Engel, except Lieutenant Colonel Engel has less protections because he was involuntarily discharged. [00:39:39] Speaker 00: So we agree that the government – it certainly looks like the government did this for a cost-saving mechanism. [00:39:44] Speaker 00: Our position is that the secretary of the Air Force did not have that authority. [00:39:48] Speaker 00: It was not granted by Congress, and it was contrary to the regulation issued by the secretary of defense. [00:39:52] Speaker 00: And we submit that the decision below should therefore be reversed for the reasons in our informal briefing – in our supplemental briefing, as well as the reasons Lieutenant Colonel Ingalls put forth. [00:40:01] Speaker 00: If there are no further questions. [00:40:03] Speaker 05: Thank you.