[00:00:00] Speaker 04: The document is 19-1189, Pipes versus United States. [00:01:19] Speaker 04: We're ready whenever you are. [00:01:40] Speaker 05: Good morning. [00:01:42] Speaker 05: Good morning. [00:01:42] Speaker 05: May it please the court. [00:01:43] Speaker 05: My name is Sherry Cannon. [00:01:44] Speaker 05: I'm here representing the appellant Malcolm Pipes. [00:01:47] Speaker 05: Mr. Pipes is seated at council table because he is a member of the bar of this court. [00:01:52] Speaker 05: The facts of the matter are not in dispute. [00:01:55] Speaker 05: A complete and manifest injustice has been done to Mr. Pipes. [00:01:59] Speaker 05: through no fault of his own. [00:02:01] Speaker 04: Can I just ask you kind of a housekeeping question, which is the parameters of the relief you're seeking here? [00:02:09] Speaker 04: Because, I mean, in the Court of Federal Claims opinion, they talk about various things that your client has asked for at appendix five. [00:02:17] Speaker 04: Whereas, I mean, my initial impression, we were just talking about disability retirement. [00:02:22] Speaker 04: And there are other things that were requested, at least at some stage of the proceeding. [00:02:27] Speaker 04: So what are you seeking as your relief here? [00:02:29] Speaker 05: Well, he's seeking a disability retirement retroactive to the date that he was separated, which is September of 2006. [00:02:37] Speaker 05: But in order to do that, my understanding is he needs to be returned to active duty in order to separate him. [00:02:44] Speaker 05: So what we're asking this court is to order that he was in active duty training. [00:02:51] Speaker 05: He was injured in the line of duty. [00:02:53] Speaker 04: What about? [00:02:54] Speaker 04: And what she indicates you ask for is to be reimbursed for all medical bills from the effective date of the permanent retirement, which you're asking for retroactively, and be placed on active duty orders and afford him an opportunity to rent a medical. [00:03:11] Speaker 04: You know what I'm talking about. [00:03:12] Speaker 04: Yes, I know what you're talking about. [00:03:14] Speaker 04: Are those requests, are those, is that still in the case? [00:03:20] Speaker 05: That's a good question. [00:03:21] Speaker 05: I believe that if this court were to order that he should have been retired on disability in September 2006, that the return to active duty is something that has to be done in order to do the rest, in order to affect the order of this court. [00:03:37] Speaker 04: If we were to retroactively assign permanent disability, in order to reach that conclusion, we have to conclude that he was on some sort of [00:03:48] Speaker 04: inactive duty status. [00:03:50] Speaker 04: And under what we've been able to discern from some of the stuff that we've gotten in the record, that would have required that he either got paid for that period of time or got points for that period of time. [00:04:03] Speaker 04: Do you agree or disagree with that? [00:04:05] Speaker 05: I completely disagree with that. [00:04:08] Speaker 05: The pay and points is under Section A of Sec 10 USC 101 D7A. [00:04:17] Speaker 05: for inactive duty training. [00:04:19] Speaker 05: The government has ignored B. You do not have to be paid. [00:04:24] Speaker 05: B is the statute that we're proceeding under. [00:04:27] Speaker 00: Pardon me? [00:04:28] Speaker 00: A is for inactive duty training. [00:04:30] Speaker 05: Right. [00:04:31] Speaker 05: And B is also for inactive duty training. [00:04:33] Speaker 05: But you do not need to be paid if you look at the other statutes that are applicable and Air Force regulations that are applicable. [00:04:40] Speaker 05: 10 USC 315A2 also says the reservist may be ordered to other duty with or without pay. [00:04:48] Speaker 05: So it's a misnomer. [00:04:49] Speaker 05: It's a red herring in this case, as well as the AFMAN is only concerned with 10 USC 101D7A, which is inactive duty training prescribed for the reserve by the secretary concerned under Section 206 of Title 37. [00:05:05] Speaker 05: That is regular inactive duty training, UTAs, [00:05:10] Speaker 05: weekend warriors, the two weeks of duty they have to do. [00:05:14] Speaker 05: What we are concerned with is section B, which is not the same as section A. All of the authority shows that you can, in fact, be doing inactive duty training without pay. [00:05:28] Speaker 05: That that's not a requirement. [00:05:30] Speaker 00: The requirement to be paid... So he would not, if we were to hold that he had inactive duty training under B, he would not be entitled to pay? [00:05:40] Speaker 05: No, and he's not asking for pay for that period of time. [00:05:43] Speaker 00: Nor points. [00:05:44] Speaker 05: Nor points. [00:05:45] Speaker 05: He's not making that contention. [00:05:47] Speaker 05: He's saying that he was in an active duty status because he was ordered under a valid AFI to participate in a program by his commander, which they've acknowledged. [00:05:58] Speaker 05: The only issue in this. [00:05:59] Speaker 00: Well, the question is, when you say it's valid, that's a question in the case. [00:06:02] Speaker 00: Well, I don't think. [00:06:03] Speaker 00: The court found it was not a valid order, and the court of federal claims held it was not a valid order. [00:06:08] Speaker 05: Right. [00:06:09] Speaker 05: But we believe it is a valid order because the AFI under which he was ordered to run, okay, that's 10, excuse me, 10-248 is a valid Air Force instruction. [00:06:23] Speaker 05: That valid Air Force instruction required Mr. Pipes at a minimum to exercise three times a week. [00:06:31] Speaker 05: But because he had failed his fitness exam four times, they enrolled him in this program. [00:06:36] Speaker 05: He could not not be enrolled. [00:06:38] Speaker 05: If he decided he wasn't going to do it, he could have been involuntarily and administratively removed from the Air Force. [00:06:45] Speaker 04: Well, let me ask you. [00:06:46] Speaker 04: Let's take out this SFIP. [00:06:50] Speaker 04: And just assume that what you, cutting off what you said midway, which is if they had, he failed his exam, his fitness exam four times. [00:06:58] Speaker 04: At some point, I don't know what at some point, he gets, he's not allowed to continue in the reserves, right? [00:07:04] Speaker 04: I mean, what's the limit to how many times you can fail your fitness exam? [00:07:08] Speaker 05: I don't know about the reserves back in that period of time. [00:07:11] Speaker 05: A little historical context might be helpful. [00:07:14] Speaker 05: Nowadays, I don't believe people would be allowed to fail it four times. [00:07:17] Speaker 05: You mean they'd be out? [00:07:20] Speaker 04: Yes. [00:07:20] Speaker 04: Okay, well let me just go on. [00:07:21] Speaker 04: If they had ordered, if he failed it four times and his supervisor or somebody in the chain of command said, you know, you're going to be out unless you do enough exercise to get yourself fit. [00:07:34] Speaker 04: So you better do enough exercise to get yourself fit. [00:07:38] Speaker 04: Is that covered with this case? [00:07:41] Speaker 04: An order by someone to get yourself in shape in order to be able to pass the exam? [00:07:46] Speaker 05: I think that's too broadly written. [00:07:47] Speaker 05: The government also thinks we're saying anybody out there playing pickup. [00:07:52] Speaker 04: Okay, well how is that too broadly? [00:07:53] Speaker 04: So what's the broadest reading you would give to this case? [00:07:57] Speaker 05: The broadest reading is somebody that was ordered pursuant to this AFI to enroll in a fitness program and exercise five days a week, filling out forms that prove that you were doing it, [00:08:13] Speaker 05: failing to fill out the forms failing to do the exercise gets you administratively separated or Filling them out doing the exercise and still failing can get you separated It's not the same as saying I think you ought to pay pick up basketball on the weekends to maintain your fitness Which is not what this is every reservist and every member of the military must maintain fitness We are not arguing that just being out there maintaining your fitness means you're on an active duty status we are saying that under the [00:08:43] Speaker 05: program that was in effect at the time that came into existence post 9-11 and that's why it came into existence. [00:08:51] Speaker 05: The Air Force determined after 9-11 that its reservists were not fit and they needed a more strenuous program. [00:08:58] Speaker 04: When was he enrolled in the program? [00:09:00] Speaker 04: In 2004. [00:09:01] Speaker 04: So he was doing this daily, this weekly routine and he suffered [00:09:10] Speaker 04: his ailment in 2006. [00:09:11] Speaker 04: So for two years, he was undergoing this fitness program. [00:09:20] Speaker 04: Did he have a fitness exam during the interim period? [00:09:22] Speaker 04: I don't recall what dates. [00:09:24] Speaker 05: Do you mean the fitness test with the runs? [00:09:28] Speaker 04: Yes. [00:09:29] Speaker 05: He failed it four times. [00:09:30] Speaker 04: Even during the interim period where he had already been enrolled in this, or did that precede his enrollment in this program? [00:09:36] Speaker 04: Yes. [00:09:36] Speaker 05: So he had failed it. [00:09:39] Speaker 05: They he was doing the three times a week, which is what everybody was required to do But because of his failures they increased it to five days When you say three times a week what everybody was required to do everybody enrolled in the reserves in the reserves were required to be fit and to exercise [00:09:59] Speaker 05: He was required to do it five times a week. [00:10:02] Speaker 04: So why is it, what is the, is enrolling in this program a limiting principle? [00:10:08] Speaker 04: Because what, if you say it would, seems like you're suggesting it was clear that he had, in order to pass the fitness thing, he upped from running three times a week to five times a week. [00:10:21] Speaker 04: So if the supervisor said to him, [00:10:24] Speaker 04: You know, you failed four times. [00:10:26] Speaker 04: You better be running five times a week or you're not going to be able to get your exertion level up enough to pass this exam. [00:10:33] Speaker 04: Leaving aside this SFIP program and enrollment in that, is that sufficient to put him in a position where you would say he should be covered? [00:10:42] Speaker 05: Depending on the context, I think so. [00:10:44] Speaker 05: That isn't the context of this case, but I believe that that's possible. [00:10:48] Speaker 04: So it's not about the program itself. [00:10:50] Speaker 04: It's about an order or requirement by someone that he do any exercise or a certain amount of exercise, like the difference between running three times a week and five times a week. [00:11:05] Speaker 04: What are the limiting principles here? [00:11:07] Speaker 05: The limiting principles, to use your words, are that he was ordered to [00:11:11] Speaker 05: do the exercises five times a week or be under the penalty of separation from the Air Force for failure to comply with the valid order under the AFI of his commander. [00:11:23] Speaker 05: And there's no question in this case. [00:11:26] Speaker 04: Well, if he didn't comply with that, what you call an order, if he didn't pass his fitness exam, he would have been removed too, right? [00:11:35] Speaker 04: Correct. [00:11:36] Speaker 05: And so this was the Air Force's effort [00:11:39] Speaker 05: correct his fitness levels, but unbeknownst to him, the issue wasn't really his fitness. [00:11:44] Speaker 04: He had an underlying health condition. [00:11:45] Speaker 04: What about if he hadn't exactly been ordered to do it, but if his supervisor had said to him, you know, the fact is that if you don't run five, you've got two choices here. [00:11:55] Speaker 04: Either you run five times a week, or it's clear you're not going to pass your fitness exam, and you're going to be removed. [00:12:01] Speaker 04: Those are your two choices. [00:12:03] Speaker 04: Is that enough to be an order that would compel him to be on, in your view, active [00:12:09] Speaker 04: Inactive duty status put that way. [00:12:12] Speaker 05: I don't believe it would because What's the difference between that and this? [00:12:17] Speaker 04: Because you're suggesting in your scenario that he's giving him a suggestion that hey I think that it's possible you have choices a or well your choice is what it's kind of a constructive thing if you don't If you don't follow this order We all know you're going to be removed because you're not going to be able to pass your fitness test [00:12:38] Speaker 05: I still think there's a distinction there between being ordered under a valid AFI that says you must do this versus [00:12:47] Speaker 05: We know what's going to happen to you is what you're saying. [00:12:50] Speaker 05: We know what's going to happen to you should you fail to follow what I'm suggesting. [00:12:54] Speaker 03: Can I ask a clarifying question? [00:12:56] Speaker 03: I just don't want you to leave the record of this oral argument without making this clear for me. [00:13:02] Speaker 03: You distinguish between three times a week and five times a week. [00:13:06] Speaker 03: It's my understanding that Mr. Pipe was ordered [00:13:10] Speaker 03: to do these exercises five times a week. [00:13:12] Speaker 03: I don't see any evidence in this record that everyone else was ordered to do it three times a week. [00:13:17] Speaker 03: I understand that the document suggests that reservists do it three times a week, but your distinction that you've made, it seems to me, is between someone being ordered where they really have no choice but to comply and a recommendation. [00:13:30] Speaker 03: Is that correct? [00:13:32] Speaker 03: So you're not suggesting [00:13:34] Speaker 03: that everyone else, every other reservist, was ordered to do this exercise three times a week. [00:13:39] Speaker 03: That could, in fact, be a problem. [00:13:41] Speaker 03: If he was ordered to do it three times a week and had a stroke, you'd probably be here still, right? [00:13:46] Speaker 03: Correct. [00:13:47] Speaker 05: The issue is the order. [00:13:48] Speaker 05: The reservists, as a group, had an issue with their fitness post 9-11. [00:13:53] Speaker 03: And it was recommended that they do this three times a week. [00:13:56] Speaker 03: But that's different from being ordered. [00:13:58] Speaker 05: Correct. [00:13:58] Speaker 05: He was clearly ordered. [00:14:00] Speaker 05: The question, obviously, before the court is whether that order [00:14:04] Speaker 05: into this particular activity constituted in active duty status. [00:14:10] Speaker 00: There's also the question about whether or not the order was lawful. [00:14:16] Speaker 00: Because the Correctional Board found it was not lawful, the Court of Federal Claims affirmed that. [00:14:24] Speaker 00: At what point in time was Mr. Pipes ever in duty status? [00:14:29] Speaker 05: You mean in [00:14:31] Speaker 05: duty status. [00:14:31] Speaker 05: When you're called to duty as a reservist during your unit training activities on weekends or two weeks a year. [00:14:37] Speaker 00: But at what point in this instance the government's arguing that we can ignore the order because the order was not valid because you can't order people to do things if they're not in duty status. [00:14:52] Speaker 00: Is that your understanding of the government's argument as well? [00:14:54] Speaker 05: That is my understanding of their argument, but I believe that's circular. [00:14:57] Speaker 00: Well just let me ask you. [00:14:59] Speaker 00: Define the points in time on the chronology here when your client was in duty status so that he could be ordered You would agree that that your client cannot be ordered to do something when he's not in duty status I? [00:15:17] Speaker 05: Yes, and no I believe they're standing general orders that all reservists must comply with even when they're purely civilians such as refraining from drug use or Fraternization pertinent to this case [00:15:30] Speaker 05: Pertinent to this case, we argue that when he was running per the direction, which was verbal and in writing, to do so under the AFI, that he went into duty status the minute he stepped out of his home. [00:15:45] Speaker 00: You say that's because you believe he was in an IDT. [00:15:49] Speaker 00: Correct. [00:15:49] Speaker 00: It's circular. [00:15:50] Speaker 00: You know, the argument gets a little circular as to status. [00:15:53] Speaker 00: Because it seemed to me that the government had a pretty good argument that if you were not in duty status, you couldn't be ordered to do something, that you could ignore that order. [00:16:03] Speaker 05: I don't believe you can ignore an order of your supervisor. [00:16:06] Speaker 05: It's just like if you were a civilian, you comply... Under the Justice Code, if it's a lawful order... Well, you either comply and grieve later, correct? [00:16:16] Speaker 05: You comply and grieve later. [00:16:17] Speaker 05: You must comply with orders that appear lawful on their face. [00:16:21] Speaker 05: And he was not being ordered to do something that was clearly unlawful on his face, such as commit a war crime or shoot civilians. [00:16:28] Speaker 00: He was given an order that- Well, if he was not in duty status, he can't be ordered. [00:16:33] Speaker 00: I mean, if you're not in duty status, you're not wearing the uniform, you're not on the base, you're not performing any services right. [00:16:44] Speaker 00: Put us in a time frame so we understand what Mr. Pipes was not [00:16:51] Speaker 00: Call to active duty at any of this time when these things happened, right? [00:16:56] Speaker 00: Correct. [00:16:57] Speaker 00: So he was in non-duty status. [00:17:02] Speaker 05: So we argue, just like what occurred in Wake and in the other cases we cite, Wake and Brown, et cetera, because he was doing activities incident to his service commitment, i.e. [00:17:17] Speaker 05: He was running pursuant to being ordered to do so under a valid AFI. [00:17:25] Speaker 05: When you say under a valid AFI, what's the AFI? [00:17:28] Speaker 05: 10-248, which is the Air Force. [00:17:30] Speaker 00: That's just the general regulation. [00:17:32] Speaker 00: There's no order. [00:17:34] Speaker 05: But you must comply with them. [00:17:36] Speaker 05: The order itself came from his supervisors and the commander to follow the AFI, to fill out the forms, to prove [00:17:43] Speaker 05: that he ran. [00:17:45] Speaker 05: The other reservists that do not have fitness issues, and his was a valid health issue, but others who do not have fitness issues aren't filling out forms proving that they're running, or if this was purely voluntary, he wouldn't be filling out forms. [00:17:59] Speaker 00: If I'm correct, we spent some time worrying about this case. [00:18:04] Speaker 00: On the form issue, my understanding is that you asked the Air Force to supply you with copies of the forms that he submitted and they didn't do it. [00:18:12] Speaker 05: Correct. [00:18:13] Speaker 00: They don't. [00:18:13] Speaker 00: But they're not denying that he, while doing his running and money, he was regularly filling out the forms and sending information back to wherever you send it, saying, I'm doing what I was told to do. [00:18:27] Speaker 00: Yes, sir. [00:18:28] Speaker 00: The facts in this case. [00:18:29] Speaker 00: But there's a missing A-40. [00:18:31] Speaker 00: There's no A-40 in this. [00:18:32] Speaker 05: That's a different form. [00:18:34] Speaker 05: OK, so the forms. [00:18:34] Speaker 00: That's the form that starts the program. [00:18:36] Speaker 05: No. [00:18:37] Speaker 05: The 1975 form of the forms that Mr. Pipes was filling out proving that he was running or doing exercise pursuant to the order of his commander to exercise five times a week. [00:18:47] Speaker 05: The 40 and the AFMAN, those forms, they have absolutely nothing to do with section B of the statute. [00:18:55] Speaker 00: How do we know that, other than the fact that you just said it? [00:18:59] Speaker 00: How do I know that AF form 48 doesn't apply to any form of inactive duty training? [00:19:04] Speaker 05: Because the other statutes that are in the record and that apply clearly say you can be ordered to other duty without pay. [00:19:13] Speaker 05: So if you can be ordered to duty without pay, then you clearly aren't under A, which is where you're being paid. [00:19:22] Speaker 00: But the form calls for pay and non-pay. [00:19:25] Speaker 00: That's for points, sir. [00:19:26] Speaker 05: That's for points. [00:19:27] Speaker 05: Reservists get points for service and they accumulate a certain number of points and that gets credited to their service commitments such that when they retire in other circumstances than we have here. [00:19:42] Speaker 05: They have a sufficient number of points to retire. [00:19:45] Speaker 05: It's apples and oranges. [00:19:47] Speaker 00: You're telling me that the Corrections Board and the Court of Federal Claims are just dead wrong when they say the form AF-40A is required for anybody entering into any form of inactive duty training? [00:19:58] Speaker 05: Yes, sir. [00:19:59] Speaker 05: That is what we're saying. [00:20:00] Speaker 05: And if you look at the other... I know you're right. [00:20:03] Speaker 05: Look at the other statutes that say you don't have to be in pay. [00:20:06] Speaker 05: If you don't have to be in pay, you don't have to fill out the 40A. [00:20:10] Speaker 00: Because that says in order to get paid, you have to have... The statute says if you're not being paid, you don't have to fill out the form. [00:20:16] Speaker 04: Correct. [00:20:17] Speaker 04: We believe that's what the statute means. [00:20:18] Speaker 05: And if you look at the... Can you cite us? [00:20:20] Speaker 05: Is that cited in your... That statutory provision, is that cited in your brief? [00:20:24] Speaker 05: The other statutory provisions that talk about that you do not have to be in pay status are cited in the brief. [00:20:31] Speaker 05: There are several of those. [00:20:33] Speaker 05: And if you look at the... You just said the other. [00:20:36] Speaker 00: The very form calls for non-pay status. [00:20:39] Speaker 05: points doesn't say four points But that's what it doesn't say four points, but that's what in order to fill out that form you have to be four hours in status to get pay or points That's what the aft man is talking about that the the court of federal claims also cited which is simply Not on point if you look at the other [00:21:02] Speaker 05: Federal Circuit cases, the 8th Circuit, the 2nd Circuit. [00:21:05] Speaker 04: I'm sorry. [00:21:06] Speaker 04: Can you, because I missed taking it down. [00:21:09] Speaker 04: What are the statutory of the regulatory sites that you are giving us to say that AF form 40A does not apply to this circumstance? [00:21:18] Speaker 04: Can you just show me what they are? [00:21:20] Speaker 04: OK. [00:21:21] Speaker 04: So if you look. [00:21:22] Speaker 04: Are they cited in your brief? [00:21:25] Speaker 04: Yes. [00:21:25] Speaker 05: If you 10 USC 12315A2. [00:21:29] Speaker 05: says a reservist may be ordered to other duty without pay. [00:21:33] Speaker 05: So you wouldn't be filling out a form if you can be ordered to duty without pay. [00:21:39] Speaker 04: I'm sorry. [00:21:40] Speaker 04: You're going way too fast. [00:21:41] Speaker 04: Is this cited in your brief? [00:21:42] Speaker 04: It would be easier if you could just give me something in your brief where you cited it. [00:21:48] Speaker 04: It would be easier for me to find it. [00:21:54] Speaker 04: Sorry about that. [00:21:55] Speaker 05: I believe it's in our reply brief. [00:22:02] Speaker 05: It's 12315A2. [00:22:06] Speaker 05: That's 10 USC. [00:22:10] Speaker 05: And it is in our reply brief, because I'm looking at our brief. [00:22:14] Speaker 04: Great. [00:22:15] Speaker 04: So that's two. [00:22:19] Speaker 05: That's why the Anti-Deficiency Act doesn't apply either, because military members can work without pay during a time of a government shutdown and provide voluntary services. [00:22:31] Speaker 05: Section B speaks to voluntary services. [00:22:33] Speaker 05: Voluntary means without pay. [00:22:36] Speaker 05: The statute itself is very clear on its face that voluntary is voluntary. [00:22:41] Speaker 00: You made an argument before the corrections board that there was a distinction, a material distinction, between the AFI 04 and the AFI 06. [00:22:52] Speaker 00: The JAG had cited the 06 incorrectly. [00:22:56] Speaker 00: And you made an argument there that was reflected in the board opinion [00:22:59] Speaker 00: I have a question for you. [00:23:00] Speaker 00: You stated your views as to why there were material differences between the two. [00:23:05] Speaker 00: The board disagreed with you and said there were no material differences. [00:23:09] Speaker 05: I didn't see an argument in your blue brief resuscitating your material differences argument. [00:23:25] Speaker 05: was that the 06AFI wasn't applicable at the time of the injury. [00:23:29] Speaker 00: Oh, I understood that. [00:23:30] Speaker 00: But I mean, you had made an argument, because I read and reread the board's opinion several times. [00:23:38] Speaker 00: And you were making, let's say, there were material differences that mattered for your case. [00:23:43] Speaker 00: I didn't see you making those arguments, the same argument in your blue brief. [00:23:48] Speaker 05: No, because we believe the government corrected its error and cited the proper, has now cited the [00:23:55] Speaker 05: Appropriate and proper okay, and I we are way beyond I know I'm sorry we will restore rebuttal time. [00:24:01] Speaker 04: Why don't you? [00:24:15] Speaker 02: Please the court the trial court correctly held that Mr.. Pipes was not on an active duty training when he suffered a stroke 12 hours after [00:24:23] Speaker 02: his self-directed running. [00:24:25] Speaker 04: So we're obviously having some concerns here. [00:24:28] Speaker 04: And one of them, it seems to me, if you have other arguments, you can throw them out here. [00:24:32] Speaker 04: But the main argument by the government seems to be that he wasn't required to comply with an unlawful order. [00:24:40] Speaker 04: And this was an unlawful order. [00:24:42] Speaker 04: Because there's no dispute that he was ordered or told by his several supervisory layers to do this. [00:24:50] Speaker 04: What's the rules there? [00:24:52] Speaker 04: I mean, as your friend said on the other side, he's ordered to do something. [00:24:57] Speaker 04: He takes that as an order. [00:25:01] Speaker 04: Is he supposed to grieve that order or violate that order and then adjudicate whether or not it was lawful or unlawful? [00:25:08] Speaker 02: There are several different things that Mr. Pipes could have done. [00:25:12] Speaker 02: One, he could have grieved the order, as your honor stated. [00:25:17] Speaker 02: Also, because the order on its face was not lawful, requiring him to perform duties outside of his on-duty time, then he could have validly ignored that order. [00:25:28] Speaker 02: And it was not a valid order under which he would be. [00:25:31] Speaker 04: Well, firstly, I guess my first question is, how is he supposed to know and be able to evaluate? [00:25:36] Speaker 04: I assume the military wants people to accept the orders as if they're lawful in the first instance. [00:25:44] Speaker 04: And two, when you mentioned grieve, I mean, is he supposed to refuse to comply and then grieve or adjudicate the lawfulness of the order? [00:25:56] Speaker 02: Well, Your Honor, under the Articles 90 and 92 of the Uniform Code of Military Justice, you can disobey an order. [00:26:05] Speaker 02: But if you're wrong, then it is at your peril. [00:26:06] Speaker 02: So if you are wrong, then you can be subject to discipline. [00:26:11] Speaker 02: So if Mr. Pipes [00:26:13] Speaker 02: thought that on its face, this was an unlawful order, he chose to disagree, and it was later determined to be lawful. [00:26:18] Speaker 02: He could be punished. [00:26:19] Speaker 02: Here, the order itself saying, perform something off duty for which you will receive no pay or points, was by its nature an unlawful order. [00:26:30] Speaker 02: And he could have disobeyed that order and been subject to no penalties. [00:26:35] Speaker 02: Now, should he have come? [00:26:38] Speaker 00: Yes? [00:26:39] Speaker 00: Assume that someone is in an inactive duty training. [00:26:43] Speaker 00: And no question about the fact that it's a form of inactive duty training under A, one of the list of the five things, OK? [00:26:52] Speaker 00: If an order is issued to him during that, that's an enforceable order, right? [00:26:57] Speaker 00: Yes, Your Honor, because that is on active duty. [00:26:59] Speaker 00: Yes. [00:27:00] Speaker 00: Now, my understanding is that when he came in for a UTA unit, [00:27:06] Speaker 00: training assembly? [00:27:07] Speaker 00: Is that what a UTA is? [00:27:09] Speaker 02: Yes, Your Honor. [00:27:10] Speaker 00: OK. [00:27:11] Speaker 00: If he's in a UTA, the UTA is deemed to be a form of IDT, correct? [00:27:18] Speaker 00: Yes. [00:27:19] Speaker 00: OK. [00:27:20] Speaker 00: So am I wrong that he went into a UTA for his assessment? [00:27:28] Speaker 02: Yes, Your Honor. [00:27:28] Speaker 02: OK. [00:27:29] Speaker 00: And while he's in his UTA as assessment, they're measuring him up and whatnot. [00:27:33] Speaker 00: And then they say to him, guess what? [00:27:35] Speaker 00: You're in trouble. [00:27:38] Speaker 00: You need to get some exercise. [00:27:42] Speaker 00: And if order was issued to him while he's in the UTA, the orders that he was given, aren't those orders valid? [00:27:54] Speaker 00: Because he's getting the order while he's in a IDT. [00:28:00] Speaker 00: Not exactly, Your Honor, because if he was- Let me just finish up, because I'll just assume that the order was issued to him. [00:28:07] Speaker 00: He's in the unit, wherever the unit is. [00:28:08] Speaker 00: They've assessed him. [00:28:10] Speaker 00: The doctor says to the boss, the commanding officer, this guy needs to be in a SFIP. [00:28:16] Speaker 00: And so he comes in and gives him the order. [00:28:19] Speaker 00: Now, the order is issued while he's in an IDT. [00:28:24] Speaker 00: But it's with regard to activity outside the IDT, is your argument? [00:28:29] Speaker 02: Yes, Your Honor. [00:28:30] Speaker 02: And that's which is why the order itself at that point, if Mr. Pipes was ordered to do something during his IDT time and he disobeyed that order, then he would certainly be subject to punishment. [00:28:44] Speaker 00: That would be like during the UTA, the assessment, the doctor says step on the scales and he refuses to do that. [00:28:50] Speaker 02: Correct, Your Honor, or document what you have done outside of your UTA time to improve your fitness. [00:28:56] Speaker 02: If he was instructed to document that, [00:28:59] Speaker 02: When he was in UTA and he disobeyed that order, then he would be subject to punishment. [00:29:06] Speaker 00: How was the difference between that order and the order that's issued as a result of the assessment that happened in the UTA? [00:29:13] Speaker 02: What Mr. Pipes was asked to do was not just to do something during his UTA, but then, according to Mr. Pipes, he was ordered to exercise at least five times a week to run, to do push-ups, to do sit-ups. [00:29:27] Speaker 00: That order itself, even if given to Mr... Isn't the real question whether or not he was put into an IDT by that order while he was in a UTA. [00:29:40] Speaker 00: If that's the case, then he was put into IDT, right? [00:29:47] Speaker 02: Yes, Your Honor. [00:29:48] Speaker 02: If he was put into IDT, then he would be... By the order. [00:29:52] Speaker 02: By the order, but there are no indicia [00:29:56] Speaker 02: in the record that Mr. Pipes was put into IDT because there was no form 40A, as Your Honor correctly pointed out. [00:30:04] Speaker 02: And to address one of the points that came up earlier, at appendix page 246, it discusses pay or points only. [00:30:12] Speaker 02: Now, opposing counsel contends that reservists can be ordered to perform without pay. [00:30:22] Speaker 02: According to the IDT provisions, the AFMAN at page 189, there had to be pay or points, which is exactly what Form 40A contemplates. [00:30:33] Speaker 00: But can't he waive points? [00:30:36] Speaker 00: Can you waive points? [00:30:37] Speaker 00: Sure, he doesn't have to accept the points. [00:30:40] Speaker 04: But also, look at what about her citation, like it's in gray, page one, where she cites IDT. [00:30:48] Speaker 04: I guess she's citing a statutory 10 USC 1231-5, whatever. [00:30:55] Speaker 04: It says, any special additional duties authorized by reserve component personnel by the secretary concerned and perform them in connection with prescribed activities with or without pay. [00:31:07] Speaker 04: So why is that not relevant? [00:31:09] Speaker 02: First, Your Honor, that does not address points. [00:31:12] Speaker 02: It states that there can be no pay. [00:31:14] Speaker 02: It doesn't state that it can be without pay or points. [00:31:16] Speaker 02: If the secretary, in theory, could order everyone to work all the time without pay or points, then that does run afoul of the Anti-Deficiency Act. [00:31:25] Speaker 02: And there would be certainly many more claims under perhaps the 13th Amendment, because you are ordering people into involuntary servitude for an indefinite period of time. [00:31:35] Speaker 02: Here, the IDT that is required pursuant to the AFMAN 36-8001 requires that there be advanced authorization, that the advanced authorization be filled out by form 40A, which is then signed by Mr. Pipes by his superiors. [00:31:55] Speaker 00: You're just deliding your adversary's argument that 40A only applies to capital A in the statutory definition. [00:32:05] Speaker 02: Well, Your Honor, the special additional duties are delineated in 4.1 in the AFMAN, the crediting IDT. [00:32:17] Speaker 00: And the statute has A and B, right? [00:32:20] Speaker 00: The statute, yes. [00:32:21] Speaker 00: And he's not trying to qualify under A. He's trying to qualify under B. [00:32:25] Speaker 02: Everyone agrees that Mr. Pipes is trying to claim these are special additional duties. [00:32:31] Speaker 00: So why is it necessarily so that Form 40A applies to A and B? [00:32:37] Speaker 02: If your honor goes to the sites and the way that it's laid out, there's 10 USC 101 D7B as well as 38 CFR 3.6 D2. [00:32:51] Speaker 02: These set out the special additional duties have the same language. [00:32:55] Speaker 02: 38 USC 206 A3 large A double I. That explains that there must be pay performed for inactive duty training. [00:33:08] Speaker 02: The AFMAN then in turn defines the special additional duties, and that's at appendix 189 paragraph 4.1. [00:33:15] Speaker 02: These special additional duties, there are only five of them, as the trial court correctly held, and none of the [00:33:23] Speaker 02: The order supposedly given to Mr. Pipes does not fit into any of these duties. [00:33:29] Speaker 02: Then when you continue going through IDT authorization, there must be the form 40A, and there must be for pay and points or for points only. [00:33:38] Speaker 00: Well, your list of five argument doesn't leave any room for B to operate. [00:33:45] Speaker 02: Well, with respect to I'm not sure if I understand your next question. [00:33:49] Speaker 00: Your argument now, which is that it was [00:33:53] Speaker 00: made below was that military has defined IDT and said there are five kinds of IDT. [00:34:03] Speaker 00: Right? [00:34:03] Speaker 00: Yes. [00:34:03] Speaker 00: And your adversary's argument is, well, that's with regard to A, not B. The IDT, the special additional duties as a... Give me an example of a special, let's say, with a SFIP [00:34:22] Speaker 00: you say is not on the list of five, and therefore it can't be a special additional duty. [00:34:28] Speaker 00: So give me an example of a special additional duty that would suffice. [00:34:34] Speaker 02: If I can point the court to appendix page eight. [00:34:37] Speaker 02: Give me an example, can you? [00:34:39] Speaker 00: An example of one of the five types. [00:34:41] Speaker 00: I know I've got the list of five here, and we agree that SFIP is not there. [00:34:46] Speaker 00: Yes. [00:34:46] Speaker 00: So what is a special additional duty that's authorized? [00:34:52] Speaker 02: So that would be, for example, if there was a Form 40A filled out for a four-hour period of time of training that was required. [00:35:02] Speaker 02: That would be a special additional duty. [00:35:03] Speaker 02: And the training could be for anything. [00:35:07] Speaker 03: And to draw the... So can I just clarify? [00:35:11] Speaker 03: Are you saying that this would be a special additional duty that he had to run five times a week if there had simply been an AF40 filled out? [00:35:21] Speaker 03: If that form had been filled out, this would qualify. [00:35:23] Speaker 03: If the run took him four hours to complete, it would be a four-hour period. [00:35:28] Speaker 03: There's no question he was ordered to do it. [00:35:30] Speaker 03: That's accepted in the record. [00:35:31] Speaker 03: So if only the form had been filled out, that would have been the magic difference in this case? [00:35:37] Speaker 02: No, Your Honor. [00:35:38] Speaker 02: There would have also had to be pay and points or points assigned as well. [00:35:43] Speaker 02: And the form 40A, by its nature, necessarily involves pre-authorization. [00:35:49] Speaker 02: to occur. [00:35:49] Speaker 02: So there would have to be each of those items before then this could be considered special additional duties. [00:35:57] Speaker 02: And if I may direct the court, under 101 D7A, those duties prescribed for reserves by the secretary under section 206 of Title 37 [00:36:09] Speaker 02: The trial courts explained what those duties are. [00:36:12] Speaker 02: What we all are referring to is B, under the special additional duties, which are those five items set forth by the IDT, not the, and according to the trial... But the five items are special? [00:36:26] Speaker 02: The five types of IDT which are permitted. [00:36:29] Speaker 00: How do we know that? [00:36:32] Speaker 02: If the trial court refers to the statutes, Appendix 8 and 9, [00:36:39] Speaker 02: as well as the AFMAN 36-8001. [00:36:43] Speaker 04: Did the chain of command folks who in the record confirm that they ordered him, that he was ordered to do this, did they have authority to fill out the form 40A? [00:36:57] Speaker 02: If Mr. Pipes' supervisor filled out the form, yes, he would have authority. [00:37:04] Speaker 02: He would have to seek pre-authorization to do so and determine [00:37:08] Speaker 02: pay or points to do that. [00:37:10] Speaker 04: What does that mean, pre-authorization? [00:37:11] Speaker 04: How high a level? [00:37:13] Speaker 04: You just said he had his authority to do that, but you cabined it by saying, except only if he has authorization. [00:37:21] Speaker 02: With respect to Form 40A, [00:37:25] Speaker 02: The appendix page 246, it requires the reservist's signature, the authorizing official, and the official's signature. [00:37:33] Speaker 02: And I do not know, Your Honor, if the supervisor was both the authorizing official and the official. [00:37:40] Speaker 04: Well, do you know what common practice is? [00:37:42] Speaker 04: I mean, this kind of thing must happen numerous times every day. [00:37:46] Speaker 04: We've got a lot of reservists, and a lot of people need to be fit to be called up for duty. [00:37:54] Speaker 04: Are these people generally, as far as you know, not getting paid for the time in which they do their exercises and their fitness training? [00:38:05] Speaker 02: That is correct, Your Honor. [00:38:05] Speaker 02: They are not getting paid. [00:38:07] Speaker 02: And as I believe it was the staff master sergeant at page, appendix page 56, I'm sorry, appendix page 31 stated that, for example, the self-paced fitness improvement plan [00:38:22] Speaker 02: is voluntary. [00:38:23] Speaker 02: It has never been IDT that this is in court. [00:38:26] Speaker 04: What about the forms that he filled out? [00:38:30] Speaker 04: Was he required to fill out certain forms at the completion of the training period? [00:38:36] Speaker 02: He was filling out the forms. [00:38:39] Speaker 02: I don't know if they were required to be filled out when he was in his monthly [00:38:46] Speaker 02: time when he was on duty status? [00:38:48] Speaker 04: Well, isn't that probative? [00:38:49] Speaker 04: I mean, if he was required to fill out certain forms, so at least I assume the government would concede that the time he was filling out the required forms would have been sort of duty status. [00:39:01] Speaker 02: Again, Your Honor, that goes back to whether there was the form 40A and whether this was for pay or points. [00:39:09] Speaker 02: And there's no indication whatsoever that there was pay or points or that [00:39:14] Speaker 02: The form was filled out. [00:39:16] Speaker 04: Can I ask you, what happened, so what would happen, and this is what we talked about early in your argument. [00:39:21] Speaker 04: These folks order him to do this. [00:39:24] Speaker 04: He goes to that, he refuses to do it. [00:39:27] Speaker 04: He won't fill out the forms, he tells them no I'm not doing it or they inquire and he said he hasn't done it. [00:39:32] Speaker 04: What's step two? [00:39:34] Speaker 02: So if if he refuses to do that when he's if he refuses for example to fill out the form 1975 or to do the training or to do the training when he's on an off-duty status He he can be required to perform fitness assessment and physical fitness when he's on in-duty status and then if he disobeyed that order then there would be punitive measures if however [00:40:00] Speaker 02: He is asked about what he did on his office. [00:40:04] Speaker 00: What would be those occasions while he's not called up to active duty? [00:40:10] Speaker 00: They would be like if he was in a UTA? [00:40:13] Speaker 02: Correct, Your Honor. [00:40:14] Speaker 02: In his weekend training, for example, when he goes to duty. [00:40:19] Speaker 00: Is that what a UTA is, weekend training? [00:40:21] Speaker 00: That is one of them, Your Honor. [00:40:24] Speaker 04: But tell me what happens. [00:40:26] Speaker 04: I mean, he says, no, I'm not going to do it. [00:40:29] Speaker 04: Somebody brings charges against him. [00:40:31] Speaker 04: I mean, he's not following an order. [00:40:34] Speaker 04: We go to parse out at some point in adjudicating whether or not the order was lawful. [00:40:39] Speaker 04: But what happens at the initial instance? [00:40:41] Speaker 02: So Your Honor, let's say he shows up to a UTA and says, I don't have any forms. [00:40:46] Speaker 02: I didn't fill them out. [00:40:47] Speaker 02: I didn't do the exercise. [00:40:49] Speaker 02: then they can say, fill out the forms now. [00:40:51] Speaker 02: And if he refuses to do so, that is punishable. [00:40:55] Speaker 02: If he shows up without the forms, there is no punishment, because he was never lawfully ordered to fill those out when he was off duty. [00:41:04] Speaker 02: And so that is the distinction, where when he is in duty status, he is required to perform lawful orders. [00:41:13] Speaker 03: Is it your belief, or do you know how often [00:41:18] Speaker 03: Reservists like Mr. Pipe are actually ordered by their commanding officer to participate in SFIP because he was ordered. [00:41:26] Speaker 03: Your response is it wasn't a lawful order. [00:41:29] Speaker 03: Do you have any sense of whether such unlawful orders are regular in the military? [00:41:35] Speaker 02: I do not have a sense, Your Honor, because it is generally understood and required that everyone must be in apt physical shape. [00:41:44] Speaker 02: And so if somebody, for instance, [00:41:47] Speaker 03: Does that mean that this case probably doesn't repeat itself very often, that this is a one-off or an unusual scenario, either because he failed so many times and therefore it's unlikely you'd end up in the situation, or unusual because it's not normal for commanders to issue unlawful orders? [00:42:05] Speaker 03: There's no question he was ordered. [00:42:06] Speaker 03: You're saying it was unlawful. [00:42:08] Speaker 03: Apart from a few good men, it seems, and Jack Nicholson, which I would do a little demonstration for you, my clerks have already seen it, but I'll push that aside because I don't want [00:42:16] Speaker 03: this case not to seem as serious as it really is. [00:42:19] Speaker 03: But apart from that sort of thing, I guess what I'm troubled by is your argument that this is an unlawful order. [00:42:26] Speaker 03: And I want to know, is this the kind of thing that you think happens all the time? [00:42:30] Speaker 03: So it's really important for him not to get his compensation here, because otherwise there's going to be a long line out the door of lots of people who have been unlawfully ordered. [00:42:38] Speaker 03: Or are you saying this is an unusual situation, in which case maybe we can look at it through an unusual lens in assessing what to do? [00:42:48] Speaker 03: I want to know how often these unlawful orders are being issued. [00:42:51] Speaker 02: I don't have an exact answer to that, Your Honor. [00:42:54] Speaker 02: I can say, however, that I'm sure it is not uncommon for someone's commander to say you need to get in shape [00:43:00] Speaker 03: work out. [00:43:14] Speaker 03: recognizing he had hypertension, and then sent him out to run. [00:43:17] Speaker 03: So there's no doubt this kid, at least on the record we have in front of us, was ordered to do this. [00:43:22] Speaker 03: This wasn't, you might want to do a little more exercise in order to pass your physical. [00:43:28] Speaker 03: He was ordered to do specific exercise. [00:43:31] Speaker 03: At least that's the record we have in front of us as of now. [00:43:34] Speaker 03: You may be able to dispute whether that's correct at a later point. [00:43:37] Speaker 03: But what we have in front of us now is he was ordered to do this expressly and specifically. [00:43:44] Speaker 02: As to whether there are numerous instances of being ordered specifically to participate in SFIP, which I will point the court to appendix page 103, which is presumably the type of written order that Mr. Pipes is referring to, which contains no indication of the amount of time as to the [00:44:08] Speaker 02: exercise or the quantum. [00:44:11] Speaker 03: I do not understand the government to have disputed that he was ordered to perform to run five times a week. [00:44:16] Speaker 03: Did the government dispute that? [00:44:18] Speaker 03: No, Your Honor. [00:44:18] Speaker 03: What I'm saying is... So as of now, on the record in front of us, this is not the document that ordered him. [00:44:23] Speaker 03: The record in front of us, which is undisputed by the government, is he was ordered to run five times a week and to do push-ups. [00:44:29] Speaker 03: An unlawful order, yes, Your Honor. [00:44:32] Speaker 03: And so what I'm trying to get at, because I'm very confused about [00:44:37] Speaker 03: Either are lots of orders like this being given to reservists, or was it only Mr. Pipe? [00:44:44] Speaker 02: And I don't have an answer to that question, Your Honor. [00:44:47] Speaker 02: All indications in the record show that SFIP is a voluntary recommended activity. [00:44:54] Speaker 02: I do not know to what extent there are other commanders who have given verbal orders in the way that Mr. Pipe's commander states he gave Mr. Pipe's an order. [00:45:06] Speaker 02: to perform these activities. [00:45:08] Speaker 02: I will also note that Mr. Pipes at no point in the two years of time attempted to get a Form 40A filled out or attempted to obtain points or pay for presumably the exercise he was ordered to perform. [00:45:24] Speaker 02: He can waive that, correct? [00:45:26] Speaker 03: He can waive points, right? [00:45:27] Speaker 03: He doesn't have to take them. [00:45:29] Speaker 02: I do not believe he can waive points, because then that gets into the Anti-Deficiency Act concern that he's being completely uncompensated for orders. [00:45:38] Speaker 00: Is there magic in the word directs? [00:45:41] Speaker 00: I noticed that AFI 248 says the union's quadrant commander directs members in court to enter as opposed to saying order. [00:45:51] Speaker 00: And when I did a word search in AFI 248, 2004, the word order never came up. [00:46:00] Speaker 00: I wonder if what a commander thinks he's doing when he tells somebody to go into a SPIP is directing, encouraging him, directing him as opposed to, quote, ordering. [00:46:15] Speaker 00: I realize in this case, we have two persons who said, we ordered him to do it. [00:46:21] Speaker 00: We've got a third person that said, well, they never order people to do that. [00:46:25] Speaker 02: I would say, Your Honor, that with respect to the direction, if the court looks to appendix page 221, which is also from the AFI 10-248 supplement that defines the SFIP, it explains that it's a program that's recommended, that reservists are in non-duty status, so their participation is not mandated. [00:46:50] Speaker 02: They are encouraged to take part on a voluntary basis. [00:46:53] Speaker 00: Well, that means they're directed as opposed to ordered. [00:46:57] Speaker 00: That's why I asked if there was any magic, because it's on page 12 of the SIP where I refer to, they say, direct members to the end of these programs. [00:47:09] Speaker 02: And that could be the magic word versus order, or it could be that the commander considered himself to be giving an order rather than a recommendation or a direction, but in fact, he was giving a recommendation or direction. [00:47:25] Speaker 00: The problem that members of the panel have is that Mr. Pipes has, there's testimony in the record that he was ordered, the kind of order that might subject you to UMJA liability and he was ordered to do this as opposed to, said well it's a good idea for you to do this because if you don't do it you're going to fail another test and then you're going to get kicked out of the reserves. [00:47:51] Speaker 02: I would note that [00:47:57] Speaker 02: The order simply could not be lawful in this instance because the commander would be ordering Mr. Pipes to do something on inactive duty status without [00:48:09] Speaker 02: taking any of the necessary steps to comply with that status. [00:48:14] Speaker 00: Would you agree that probably the only, from your perspective, the only valid order that could be given to an off non-duty status veteran was, you know, at home or wherever would be the order saying, I'm calling you up to active duty? [00:48:29] Speaker 02: Yes, Your Honor. [00:48:31] Speaker 02: And otherwise, that individual would be. [00:48:33] Speaker 00: Or no, you could get an order that told you to come to a UJA or whatever, come in for next year. [00:48:42] Speaker 00: You have to come in next weekend or whatever? [00:48:45] Speaker 02: Yes, you can be ordered to come in to perform duty. [00:48:49] Speaker 00: Orders that are bringing you back into reserve status, active duty as a reservist. [00:48:58] Speaker 00: other than that, you would say there's no class of orders that could be lawfully issued to a reservist in non-duty status. [00:49:06] Speaker 02: Unless you are turning into the inactive duty status for those special provisions, yes, Your Honor. [00:49:12] Speaker 00: And if you had gone, if you had been put into something that you agreed was inactive duty training and a specific program, then any order issued in connection with that would be a valid order. [00:49:25] Speaker 00: Inactive duty is duty. [00:49:29] Speaker 02: I'm not certain if I understand the court's question. [00:49:33] Speaker 00: No, I'm having a situation. [00:49:34] Speaker 00: I'm just trying to get in my mind the class of orders that you would feel would be lawful. [00:49:40] Speaker 00: exercise towards a person like Mr. Pipes with regard to this fitness issue. [00:49:46] Speaker 00: So if they had put him into a SPF and everybody agreed it was a legit put-in and it constituted statutory inactive duty training, then any order given to him in connection with that inactive duty training would be a valid order. [00:50:04] Speaker 02: If he was validly put into the SPF and [00:50:08] Speaker 00: It was for payer points and the form 40 a was your bottom line argument is that there's no step is never has been inactive duty training under any iteration of the AFIs. [00:50:21] Speaker 02: Yes, your honor. [00:50:22] Speaker 02: There there is no circumstance under which to my understanding has been considered inactive duty training. [00:50:30] Speaker 04: Can I just ask you one other question, which is sort of a little outside of the box? [00:50:34] Speaker 04: But it seems to me that, at least on the facts of this case, what went down, there was a medical opinion involved. [00:50:42] Speaker 04: I mean, the problem here seems to have arisen because he probably shouldn't have been doing this running under medical care. [00:50:48] Speaker 04: There were some doctor observations that confirmed he shouldn't have been. [00:50:52] Speaker 04: But yet, he did. [00:50:54] Speaker 04: Does the government have any comment on what went down in that scenario? [00:50:59] Speaker 02: with respect to the medical advisor's opinion, it appears that there were indications that Mr. Pipes had high blood pressure, whether that was a result of other medication he was taking or not, that Mr. Pipes' personal physician recommended that he go on to blood pressure medication. [00:51:18] Speaker 02: He was not put onto it. [00:51:19] Speaker 02: Certainly it is unfortunate that he was. [00:51:22] Speaker 04: But there was some government medical guy who was checking people out before they undertook this very strenuous exercise program, right? [00:51:33] Speaker 02: I believe, yes. [00:51:35] Speaker 02: There was certainly a medical evaluation completed to determine if. [00:51:39] Speaker 03: And that evaluation registered him as having extraordinarily high blood pressure, according to the doctor's notes, correct? [00:51:47] Speaker 02: There were indications that, yes, he had high blood pressure. [00:51:50] Speaker 00: I thought the doctor tested him and he said, the doctor realized he had high blood pressure but didn't tell him. [00:51:56] Speaker 00: And then the doctor said, you're fit to go out and run. [00:52:00] Speaker 02: Yes, Your Honor. [00:52:00] Speaker 02: And that is why Mr. Pipes has a 90% disability rating service connection, excuse me, and is receiving his service connection for the high blood pressure. [00:52:11] Speaker 04: OK. [00:52:11] Speaker 04: Thank you. [00:52:16] Speaker 05: I think the last point that the panel was hitting on is key. [00:52:36] Speaker 05: If Mr. Pipes had brought a case for medical malpractice, which clearly occurred here, [00:52:43] Speaker 05: or for being ordered to do something in civilian status under the Federal Tort Claims Act, the government down the street in the district court would be arguing that Fares bars his claim because he was incident to service when he was injured, i.e. [00:53:00] Speaker 05: had the stroke. [00:53:02] Speaker 05: He can't have it both ways. [00:53:05] Speaker 05: Either he was doing something that he was ordered to do or he wasn't. [00:53:11] Speaker 05: So if we [00:53:13] Speaker 05: look at it from the Ferris perspective, there's clear malpractice. [00:53:17] Speaker 05: The government admits it. [00:53:19] Speaker 05: Dr. Carson, the Air Force board doctor, says that the Air Force did do less than desirable medical treatment of this individual. [00:53:30] Speaker 03: But what about the points or pay argument the government made? [00:53:33] Speaker 03: The government insists that since there were no points or pay associated with this, this cannot ever qualify as inactive duty training. [00:53:41] Speaker 05: They're just flatly wrong. [00:53:42] Speaker 05: Look at the other cases where Federal Circuit Courts of Appeals have found people to be in active duty status or in active duty training where they weren't being paid, where they were in car accidents when they were purely civilians. [00:53:57] Speaker 05: when they're ROTC cadets doing physical fitness training, where they're having heart attacks when they're in between duty statuses. [00:54:07] Speaker 05: All of those cases in the Second and Eighth Circuit and the Court of Claims don't require these individuals to be getting paid for a short trip from the University of wherever to the- So what is the limiting principle in those cases? [00:54:23] Speaker 05: What the courts say, and in Wake the court was looking at, [00:54:27] Speaker 05: 101 D7B, and they said, but for the order, but for the military status, the injury wouldn't have occurred. [00:54:38] Speaker 05: If you weren't in the car going to take a test to be a naval aviator, you wouldn't have been in a car accident. [00:54:45] Speaker 05: But for the order to serve as acting for the colonel, you wouldn't have had a heart attack and you wouldn't have been there. [00:54:54] Speaker 05: but for being ordered to passive fitness. [00:54:57] Speaker 05: These were all lawful orders, but they weren't being paid. [00:55:00] Speaker 00: There was no challenge to the lawfulness of the law. [00:55:02] Speaker 05: Right. [00:55:03] Speaker 05: In this case, the government, we believe, is making an argument that's just off point. [00:55:10] Speaker 05: It's just not on point. [00:55:12] Speaker 04: Can I just ask you a few sort of [00:55:14] Speaker 04: out of, you know, sort of not related questions, but from my own edification about what's going on here, and you may or may not have the answer to this. [00:55:22] Speaker 04: He's getting, we've all heard, and it's in the record, that he's getting this disability, the claims from the VA, and he's getting payment for a claim there. [00:55:30] Speaker 04: Is there some sort of offset if he were to obtain disability retirement? [00:55:37] Speaker 04: Is all of that stuff cumulative in what a complainant gets or is there offsets for those sorts of things? [00:55:43] Speaker 05: I believe there's some sort of offset for the disability. [00:55:47] Speaker 05: The VA compensation is one thing. [00:55:52] Speaker 05: The military disability retirement [00:55:56] Speaker 05: is substantially more money and entitles him to benefits that he's not currently getting. [00:56:01] Speaker 04: So what if he was 47? [00:56:02] Speaker 04: So to get disability, when would he otherwise be eligible for his retirement? [00:56:06] Speaker 04: 60. [00:56:07] Speaker 04: So we're talking about 13 years of being in some sort of retirement. [00:56:11] Speaker 04: When you get on disability retirement, is there an annual assessment or some sort of assessment as to your ability to work or to obtain employment? [00:56:22] Speaker 05: I do not believe it's the same as the civilian [00:56:25] Speaker 05: FERS or CSRS Disability Retirement System where those individuals have to annually or as requested by OPM certified, they are physically unable to perform the essential functions of the job. [00:56:36] Speaker 05: Once the military retires you and says you are not capable of performing military service, you're eligible [00:56:44] Speaker 05: They're not going to call him back in and say, show me you're not disabled, so we're going to bring you back to active duty. [00:56:53] Speaker 05: It's not the same as in the civilian service.