[00:00:00] Speaker 02:
argument in 1921-85, Dyer versus Air Force.

[00:00:05] Speaker 02:
Mr. Bonney, whenever you're ready.

[00:00:08] Speaker 00:
Thank you.

[00:00:09] Speaker 00:
Good morning, and may it please the court.

[00:00:11] Speaker 00:
The case before you today is a case of first impression interpreting 32 USC 709 F-4.

[00:00:17] Speaker 00:
Senator Dyer is a non-probationary dual status civilian technician who serves as an electronics integrated systems mechanic leader WL-13.

[00:00:29] Speaker 00:
As a dual-status civilian technician, he works daily as a mechanic work leader and also serves one weekend a month and two weeks and one day a year in the National Guard.

[00:00:41] Speaker 00:
Consequently, he's a full-time civilian who also spends some weekends and two weeks in the summer, usually drilling.

[00:00:48] Speaker 02:
I think I have the record.

[00:00:50] Speaker 02:
Let me start off by asking you.

[00:00:53] Speaker 02:
It's my understanding that you're not appealing the National Guard's decision to separate Mr. Dyer.

[00:01:00] Speaker 02:
but rather you're appealing the Air Force's decision to terminate him because he no longer satisfied the condition of dual status.

[00:01:08] Speaker 00:
That is absolutely correct.

[00:01:09] Speaker 00:
We have no authority to address whatever the military's action is.

[00:01:14] Speaker 00:
I would point out that the military decision, while we have no authority to address it,

[00:01:20] Speaker 00:
It does not comport with due process principles which feeds into the next argument.

[00:01:26] Speaker 00:
I would also point out is that is exactly the case that we had in Navy versus Eagan which both this court and the US Supreme Court had in front of them at one time.

[00:01:40] Speaker 00:
Although the Air Force contends the MSPB in this particular case does not have jurisdiction over removals based on the loss of condition of employment, this court and the Supreme Court face the same issue in Navy versus Eagan.

[00:01:54] Speaker 00:
As the Supreme Court found, the board has jurisdiction over the action of the employee being removed in the surveying capacity based on his failure to meet a condition of employment.

[00:02:07] Speaker 00:
even where the board does not have authority to examine the underlying condition of that employment that resulted in... Yes, but here we have a statutory provision that you're relying on.

[00:02:22] Speaker 02:
And the statutory provision is not completely crystal clear because the exemption, it used to be clearly no right of appeal, correct, before the statutory change?

[00:02:32] Speaker 00:
That's correct.

[00:02:33] Speaker 02:
And then they add the language, when the appeal concerns activity occurring while the member is in a military pay status or concerns fitness for duty in the reserve component.

[00:02:44] Speaker 02:
And I think it's the government's view, and we'll hear in a few minutes, that you... What we're talking about here and the challenge here involves

[00:02:56] Speaker 02:
that exception and therefore there's no right to appeal, no jurisdiction for the MSPB in the circumstance.

[00:03:04] Speaker 02:
So what's your response to that?

[00:03:05] Speaker 02:
You didn't file a gray brief, so I'd just like to hear your response to the government position in red.

[00:03:11] Speaker 00:
As you know, the agency spent 90% of its brief writing on appealing the jurisdictional findings

[00:03:21] Speaker 00:
which they never raised as an appeal.

[00:03:24] Speaker 00:
That's because that is an important issue.

[00:03:27] Speaker 00:
But the agency tries to squeeze its removal of Mr. Dyer into a claim that he failed to maintain a condition of employment under concerns for his fitness for duty in the reserve component.

[00:03:40] Speaker 00:
The agency's argument is contradicted and fully rebutted by their own letter of non-retention, which its supplemental appendix page 50 states

[00:03:50] Speaker 00:
You should not consider this non-retention as an unfavorable reflection on your military career, nor is it a separation for discharge.

[00:03:59] Speaker 00:
The separation notice then goes on to extend the Air Force's sincere appreciation for its personal sacrifices and devoted service to the nation.

[00:04:09] Speaker 00:
The point being is there was no basis for

[00:04:13] Speaker 00:
the removal in this particular case, it then goes on.

[00:04:19] Speaker 02:
Which removal were you talking about?

[00:04:21] Speaker 02:
Are you talking about removing him from National Guard status or the removal of his other position?

[00:04:27] Speaker 00:
is the National Guard status because that's what the judge ended up relying on.

[00:04:31] Speaker 00:
The judge found that clearly the removal from the civilian position did not meet the due process principles.

[00:04:40] Speaker 00:
That's pretty straightforward.

[00:04:41] Speaker 00:
He didn't get a notice of opportunity to respond.

[00:04:44] Speaker 00:
He didn't get a proposed removal.

[00:04:47] Speaker 00:
So he clearly didn't meet the five USC 7513 rights of due process.

[00:04:53] Speaker 00:
So what the judge did was he looked at the removal from the military and said, hey, there's due process there.

[00:04:59] Speaker 00:
But the point, and I think you've already made it, is that no due process was required during that proceeding and no due process was provided during that proceeding.

[00:05:09] Speaker 00:
No notice of an opportunity to respond.

[00:05:11] Speaker 00:
No charges were ever filed.

[00:05:13] Speaker 00:
Wait, I'm sorry.

[00:05:15] Speaker 02:
I'm getting a little confused.

[00:05:17] Speaker 02:
I apologize.

[00:05:17] Speaker 02:
Maybe it's me.

[00:05:19] Speaker 02:
Your complaint about due process is with regard to the second, the other, not the National Guard decision, but the decision to terminate him because he didn't satisfy the condition of dual status.

[00:05:32] Speaker 00:
Well, Judge, this is where it will be confusing.

[00:05:35] Speaker 00:
I accept the judge would have found that that was not due process.

[00:05:40] Speaker 00:
What he did was he looked and found due process in the military proceedings, which did not require due process and which did not provide due process.

[00:05:49] Speaker 00:
And that was the gist of our appeal was we know that that process did not provide due process.

[00:05:56] Speaker 00:
And you can't use what the judge found there

[00:06:00] Speaker 00:
as evidence to support the due process he was denied in the civilian side of the house.

[00:06:06] Speaker 00:
That's why it's a little bit confusing, and I will give you that, that it's a little bit confusing because the judge reached out and found due process in the military proceeding, which frankly is clearly not a due process proceeding, nor does it have to be.

[00:06:21] Speaker 00:
You know, there's no notice of charges.

[00:06:24] Speaker 00:
There's no proposal of action.

[00:06:25] Speaker 00:
There's no opportunity to respond to charges.

[00:06:29] Speaker 00:
There's just no notice.

[00:06:30] Speaker 01:
This is Judge Toronto.

[00:06:32] Speaker 01:
Can I just follow up on this because I think I've been a little bit confused about this too.

[00:06:37] Speaker 01:
Assume for a minute, for purposes of this question, that the board cannot question the removal from the National Guard of your client on any ground, whether it is substantive or procedural or constitutional or otherwise.

[00:07:01] Speaker 01:
then what exactly does the board have before it in the proceeding that you initiated before the board?

[00:07:15] Speaker 00:
Thank you for that question.

[00:07:17] Speaker 00:
That question is answered by Egan.

[00:07:20] Speaker 00:
And in Egan, what they said was, you know, if a person's security clearance is taken and, you know, when a security clearance is taken,

[00:07:29] Speaker 00:
That's a much more serious problem than what you have in this particular case.

[00:07:34] Speaker 00:
And when my security clearance is taken, I cannot go aboard and work, perform any duties.

[00:07:40] Speaker 00:
I can't go into a controlled area.

[00:07:42] Speaker 00:
I can't do anything because my job requires that I perform things that are covered under a secret clearance.

[00:07:49] Speaker 00:
Here, my clients can continue to work, do their job.

[00:07:53] Speaker 00:
The only thing they can't do is go on their GI Joe missions

[00:07:59] Speaker 01:
But except that under the statute they can't because the dual status is a job requirement for the civilian position under the statute.

[00:08:14] Speaker 01:
And in Eagan there was not a, and this gets back to something that Chief Judge Prost I think mentioned, in Eagan there wasn't a statutory provision I don't think

[00:08:25] Speaker 01:
like 709F4 that says a particular, the equivalent there would have been a statutory provision that says no other authority, including the board, may question on any grounds the removal of a national security clearance, including on constitutional due process grounds.

[00:08:49] Speaker 00:
But we cannot attack the military decisions much like we cannot attack the security clearance revocation proceedings.

[00:08:55] Speaker 00:
But what we can attack is the due process that the employee is provided, which was the whole purpose of the statute.

[00:09:02] Speaker 00:
If I could flip a question back to the court, what value would be the statute at that point that provided these individuals with rights?

[00:09:10] Speaker 00:
I would also point out.

[00:09:12] Speaker 01:
Well, let me just, like I said, lead to me to another question.

[00:09:16] Speaker 01:
And I don't remember how much, if at all, any of this appears in the briefs.

[00:09:22] Speaker 01:
But this provision,

[00:09:24] Speaker 01:
applies in effect to civil rights claims under section 717 of the Civil Rights Act of 1964.

[00:09:33] Speaker 01:
I think the next section, F5, makes that clear.

[00:09:38] Speaker 01:
And there's a body of case law out there in the regional circuits that draws a distinction between what is reviewable and what is not reviewable under which

[00:09:51] Speaker 01:
essentially a military decision about activity in the military would not be reviewable.

[00:09:57] Speaker 01:
And why wouldn't that, and that maybe says two things.

[00:10:03] Speaker 01:
One, that a decision that says you lose your dual status position, not because you've lost your military, your national guard status, but because you did something bad on the job in your civilian capacity, that would be what this provision would still allow.

[00:10:19] Speaker 01:
But that's not this.

[00:10:21] Speaker 02:
Right.

[00:10:26] Speaker 02:
Why don't you, you're free to respond, Mr. Bonney.

[00:10:28] Speaker 02:
Go ahead.

[00:10:29] Speaker 00:
Thank you very much.

[00:10:30] Speaker 00:
A couple of things.

[00:10:31] Speaker 00:
One would be that with that particular question is the employee, as you probably know, even after he lost his status, he can continue to work for the National Guard up to a year after his revocation.

[00:10:46] Speaker 00:
In addition to that, the process here

[00:10:52] Speaker 00:
has also, if you look at the removal letter, it also gives him the right to go to the reserve status.

[00:10:58] Speaker 00:
That is the, the particular status is referred to as the inactive reserve or retired reserve.

[00:11:06] Speaker 00:
And as you may know, President Trump has recently called those people up.

[00:11:10] Speaker 00:
So he has not been disqualified.

[00:11:12] Speaker 00:
So the question that you present under the particular section that says, you know, we're concerned that he was disqualified,

[00:11:20] Speaker 00:
from this particular position by the military is, like I said, beat back by the fact that the letter says, we thank you for your service.

[00:11:29] Speaker 00:
This isn't unfavorable.

[00:11:30] Speaker 00:
You've done nothing wrong.

[00:11:32] Speaker 00:
And we'll put you in the reserve status so that you can come back and serve the country in times of need like we have now.

[00:11:39] Speaker 00:
So the circumstances do not... My client has done nothing that would indicate that he should be fired.

[00:11:47] Speaker 00:
And I'll reserve my...

[00:11:49] Speaker 00:
That's my time.

[00:11:50] Speaker 02:
Okay.

[00:11:50] Speaker 02:
All right.

[00:11:51] Speaker 02:
Let's hear from Mr. Ho.

[00:11:54] Speaker 02:
Ms.

[00:11:55] Speaker 02:
Ho, Mr. Ho.

[00:11:56] Speaker 03:
Mr. Ho.

[00:11:57] Speaker 03:
Thank you, Your Honor.

[00:11:59] Speaker 03:
I'd like to start... You're welcome.

[00:12:02] Speaker 03:
I'd like to start kind of where the last question that the panel asked, I think Judge Toronto, you had asked, why can't we create the dividing line as, you know, other circuits have done in the civil rights cases?

[00:12:16] Speaker 03:
I do think that's probably

[00:12:19] Speaker 03:
a similar line we would draw here.

[00:12:21] Speaker 03:
Clearly when Congress revised 32-709, it did create an avenue for board review in certain instances.

[00:12:30] Speaker 03:
And what it looks like that Congress did was it created an avenue where if activity occurred kind of solely within the service member's civilian capacity, while he was in a civilian pay status that didn't really implicate his military duty,

[00:12:47] Speaker 03:
That could be reviewable, we think, by the board.

[00:12:50] Speaker 03:
And that would give effect to what Congress kind of effected through the statute, through the modifications in the statute, but would still respect, you know, what courts have long respected regarding military fitness issues and not kind of intruding upon those types of determinations.

[00:13:06] Speaker 03:
We think this accords with how this court has previously interpreted 709, where, again, there was a previous bar where the court could not review in any circumstance

[00:13:16] Speaker 03:
Decisions made by the Adjutant General of the National Guard.

[00:13:21] Speaker 03:
But when Congress modified the statute, it seems to have opened a tiny door.

[00:13:26] Speaker 03:
But again, still not touching on military fitness issues.

[00:13:29] Speaker 03:
We think that's why Congress added the language, you know, concerns, and this is an F4, that the right of appeal should not extend beyond the Adjutant General when it concerns fitness for duty and the reserve components.

[00:13:42] Speaker 03:
Here, Master Sergeant Dyer enjoyed the position of a dual status position precisely because he was a service member.

[00:13:49] Speaker 03:
As we laid out in our brief, the role of a dual status technician is very closely tied to their military activity.

[00:13:58] Speaker 03:
They get deployed with their unit.

[00:14:00] Speaker 03:
They train with their unit.

[00:14:02] Speaker 03:
They wear their unit.

[00:14:02] Speaker 02:
Oh, go ahead.

[00:14:04] Speaker 02:
Well, I was just going to ask quickly, just your friend on the other side,

[00:14:10] Speaker 02:
responded to that by citing the accolades his client got upon separation and also the continuing service he's providing.

[00:14:19] Speaker 02:
Do you have a quick response to that?

[00:14:22] Speaker 03:
Right.

[00:14:23] Speaker 03:
And again, I think this actually kind of demonstrates how closely even the question itself starts to touch on issues of military fitness, because in order to kind of question the civilian question on why he was separated, he has to immediately go to the question of military fitness.

[00:14:39] Speaker 03:
Now, we know why the military made its decision because it made that decision clear in page 20 of the appendix where it laid out the recommendation for non-retention.

[00:14:49] Speaker 03:
What his military commanders found was that Master Sergeant Dyer had progressed to the limits of his ability.

[00:14:55] Speaker 03:
He had applied for numerous promotion opportunities and not been granted promotion.

[00:15:01] Speaker 03:
He had been in his rank for 12 years.

[00:15:03] Speaker 03:
And in the military, it's an up or out type of regime.

[00:15:07] Speaker 03:
He had been passed over for a promotion each time.

[00:15:10] Speaker 03:
It was clear he wouldn't receive a promotion.

[00:15:12] Speaker 03:
And within his unit, there weren't very many of these positions to give to more junior airmen.

[00:15:17] Speaker 03:
So in order to open up these opportunities for more ambitious junior people, it was perfectly squarely within the discretion of his military commanders to say, we need to be able to create promotion opportunities.

[00:15:31] Speaker 03:
And statutory, we just don't get very many of these positions to begin with.

[00:15:35] Speaker 03:
So even though Master Sergeant Dyer has done a capable job and, you know, has served his country faithfully.

[00:15:41] Speaker 02:
You responded to my question.

[00:15:43] Speaker 02:
Why don't you, I'll turn to Judge Chiranca.

[00:15:45] Speaker 01:
Yes, I thought that I heard Mr. Bonney say right near the end of his opening argument that there were grounds that he could have asserted or did assert to the board that

[00:16:04] Speaker 01:
uh, Mr. Dyer could lawfully keep this position even once he was, um, out of the National Guard, um, in which case maybe there is some issue, um, outside the bar of 79, 709 F four.

[00:16:25] Speaker 01:
Can you address that both as to whether it was raised and, and the merits of it?

[00:16:30] Speaker 03:
So to answer the first part of the question, I don't think it was raised.

[00:16:34] Speaker 03:
I could be wrong, but I don't recall seeing that argument raised anywhere.

[00:16:38] Speaker 03:
But to the second part, I don't think that point is correct.

[00:16:40] Speaker 03:
The statute clearly states that if you fail to be a military member, you shall be promptly separated.

[00:16:46] Speaker 03:
Now, there could be some gray area in that question of shall be promptly, like what does it mean to shall be promptly separated?

[00:16:54] Speaker 03:
I think what my friend on the other side is referring to is

[00:16:58] Speaker 03:
I think it's in Title X, Section 10217 or 10216.

[00:17:04] Speaker 03:
The Secretary of the Armed Services, I think in this case it would be the Air Force, can write or recommend keeping the individual on duty for up to a year, but it's not something that happens automatically.

[00:17:17] Speaker 03:
The Secretary of the Air Force would have to write and justify the retention kind of as an exception to

[00:17:25] Speaker 03:
Section 709, which says you shall be promptly separated.

[00:17:28] Speaker 03:
But even then at max, and this is again with an intervention from the Secretary of the Air Force, would only be able to justify prolonging the ultimate termination by up to a year.

[00:17:40] Speaker 03:
And a healthy backdrop, I think, to understand is kind of what I was explaining to Chief Judge Prost was that there aren't very many of these positions.

[00:17:49] Speaker 03:
So it makes sense in the statutory regime that

[00:17:53] Speaker 03:
when you fail to be a military service member, and because your duties are closely tied to your civilian status, that when you fail to maintain your membership in the military, you should be properly separated.

[00:18:05] Speaker 03:
That opens up new opportunities for more junior service members, but it also recognizes the number of limited opportunities that dual status technicians get.

[00:18:19] Speaker 02:
Can I just cut you off?

[00:18:20] Speaker 02:
Before your time expires, I wanted you to have a chance to respond to the Egan and Kaplan cases and the argument your friend makes.

[00:18:30] Speaker 03:
Sure.

[00:18:31] Speaker 03:
So my friend on the other side refers to the Egan cases to, I guess, create some type of dividing line as to what this court should be able to review, referring to

[00:18:48] Speaker 03:
Title V, Section 7513, those two process questions.

[00:18:52] Speaker 03:
We think those authorities are distinguishable precisely because, number one, there's a statute on point.

[00:18:58] Speaker 03:
We think the court has already mentioned this, that says you're required to be a service member, and then says on the flip side of that, if you fail to be a service member, you shall be promptly separated once you fail to meet that condition.

[00:19:10] Speaker 03:
And then you get to Section S4, which says,

[00:19:16] Speaker 03:
review by the board is limited or the review rights do not extend beyond the Adjutant General when it concerns fitness for duty in the military.

[00:19:27] Speaker 03:
That's a different question because I think in the EGEN context what you get is there wasn't much dispute that those individuals qualified as Title V employees.

[00:19:37] Speaker 03:
The only question then was when you get into this very sensitive area of national security type determination,

[00:19:44] Speaker 03:
What type of process do you get?

[00:19:47] Speaker 03:
Do you get the full panoply of traditionally accepted Section 7513 due process rights or is it something more limited because of the nature of their employee status?

[00:19:59] Speaker 03:
That was the question that Egan was answering.

[00:20:00] Speaker 03:
Here you have a statute directly on point that says you are required to be a service member.

[00:20:05] Speaker 03:
If you fail to be a service member, you shall be promptly separated.

[00:20:09] Speaker 03:
And if you are separated on an issue that concerns your fitness or duty in the military,

[00:20:13] Speaker 03:
your rights, review rights, do not extend beyond the adjutant general of the jurisdiction.

[00:20:19] Speaker 03:
So that's why we think that line of cases, the security clearance line of cases, is distinguishable from a case like this.

[00:20:26] Speaker 03:
In total, we think that that jurisdictional part should answer the question.

[00:20:31] Speaker 03:
We think the board improperly, narrowly focused on Title V without recognizing that Title 32 had a much more

[00:20:41] Speaker 03:
much more to add to the question and that the board failed to kind of grapple with those questions.

[00:20:47] Speaker 03:
With respect to the second part of the case, which is the due process question, we think that the petitioner is focusing a little bit too much on the form of 7513 rather than the substance.

[00:20:58] Speaker 03:
So this is assuming we get to the due process question.

[00:21:01] Speaker 03:
Here the National Guard provided the notice with a specific reason for the determination.

[00:21:05] Speaker 03:
It was a very simple reason under section 70, or under 709.

[00:21:10] Speaker 03:
The service member had lost his military status and therefore was obligated by statutes to surrender that position.

[00:21:18] Speaker 03:
He was given an opportunity to respond.

[00:21:20] Speaker 03:
What that means is he was given a significant conference with his management.

[00:21:24] Speaker 03:
Here he got to write a letter to the same individual, the same military officer who was responsible for the civilian separation under Section 709.

[00:21:33] Speaker 01:
Just to be clear, when you say was given an opportunity, you don't mean that the initial letter told him he had the opportunity, just that in fact he had it and took it.

[00:21:47] Speaker 03:
That's probably a fair distinction, Your Honor.

[00:21:50] Speaker 03:
Okay.

[00:21:50] Speaker 03:
And he was given a reasonable time to respond.

[00:21:54] Speaker 03:
Here it was 30 days.

[00:21:56] Speaker 03:
He had the opportunity to seek representation if he wanted it.

[00:21:59] Speaker 03:
And there was a written decision.

[00:22:00] Speaker 03:
And here it didn't have to be a complex written decision because it was required by statute.

[00:22:05] Speaker 03:
So we think that upfront that the board erred when it took jurisdiction over the case under Title V. And then the alternative, even if the board did not err, that the board's decision should be affirmed because the petitioner, Master Sergeant Dyer, was afforded all due process, afforded to him under the law.

[00:22:23] Speaker 03:
Thank you.

[00:22:25] Speaker 02:
Mr. Bonney, you've got five minutes left or about that.

[00:22:29] Speaker 00:
Thank you very much, Your Honor.

[00:22:30] Speaker 00:
Let me point out a couple of things.

[00:22:32] Speaker 00:
Egan is a case regarding Fay to maintain a condition of employment.

[00:22:36] Speaker 00:
In that case, security clearance, this case is his National Guard military status.

[00:22:41] Speaker 00:
The cases are the exact same.

[00:22:43] Speaker 00:
The point that's been made is, well, there's a statute involved.

[00:22:47] Speaker 00:
The statute has no real

[00:22:48] Speaker 00:
importance because whether it's a statute, a regulation, a policy, whatever it is, the results are the same to the employee.

[00:22:56] Speaker 00:
You cannot be employed.

[00:22:58] Speaker 00:
Both require the employee to be terminated because of the loss of that particular condition of employment.

[00:23:08] Speaker 00:
Both of them have the same effect.

[00:23:10] Speaker 00:
The due process that we're seeking is with the civilian separation.

[00:23:14] Speaker 00:
The agency must free reign to terminate

[00:23:17] Speaker 00:
individuals and to claim that it falls under some big large umbrella about under 709F4 that it has to do with military fitness for duty.

[00:23:32] Speaker 00:
Well, that's not, that would totally emasculate the regulations if you could always just say it falls under that.

[00:23:38] Speaker 00:
In fact, we know that it doesn't.

[00:23:41] Speaker 00:
because we know that the letter specifically rebuts that he did anything wrong.

[00:23:47] Speaker 00:
He has 37 years of loyal, successful service, and he's invited to come back and work on the reserve, the retired reserve or the inactive reserve, which he's just been called up for.

[00:24:03] Speaker 00:
The president's given authority to Pentagon to call him up for.

[00:24:06] Speaker 00:
I'd also point out that something else is important to note.

[00:24:09] Speaker 00:
The purpose of this statute, if you go through the change, you will also note that the National Guard is under requirement to convert Title 32 to Title 5.

[00:24:21] Speaker 00:
for 20% of its people.

[00:24:23] Speaker 00:
The obvious point here is Congress wants these individuals to have due process rights except under these very narrow circumstances where there's a fitness with duty or military pay status problem.

[00:24:35] Speaker 00:
They did something wrong when they had military pay status.

[00:24:39] Speaker 00:
So to effect the purpose of Congress would be to just look at this particular statute, look at 32 USC 709F and read it this way, a right of appeal

[00:24:50] Speaker 00:
Only, this is the exception, shall not extend when the appeal concerns activity occurring while the member is in military pay status, not applicable, no problems with him there, or fitness for duty, he didn't meet one of the run jump standards for physical fitness in the reserve component.

[00:25:08] Speaker 00:
We know that that exception is not applicable here because one of the kind language that he got when he was removed saying that this is not a

[00:25:19] Speaker 00:
for cause reason that you're being separated, and two, you're being invited back in case we need you, we're going to bring you back.

[00:25:26] Speaker 00:
So if you, that is the exception that has been carved out at four, that exception is not applicable, therefore he has the right.

[00:25:36] Speaker 00:
So I think at one point, Judge Prosh, you said maybe there might be some type of conflict here between the granting of this appeal right and the statute that says you must be removed.

[00:25:48] Speaker 00:
Yes, there may be.

[00:25:49] Speaker 00:
And I looked at that.

[00:25:50] Speaker 00:
But I have to go with the concentrated language here explaining exactly what they want to happen and the intent that they want the National Guard technicians who haven't had these due process rights to receive these rights.

[00:26:03] Speaker 00:
which is evident by the provision that they're going to convert Title 32 to Title 5 at 20% and that is to be increased.

[00:26:13] Speaker 00:
So the idea here is to move these people to Title 5.

[00:26:16] Speaker 00:
You have to remember, every day he doesn't work, he does regular civil service job just like everybody else.

[00:26:23] Speaker 00:
It's when he's not working and he does his weekends,

[00:26:27] Speaker 00:
or he's two weeks in the summer, that's when he's doing his military work.

[00:26:31] Speaker 00:
The rest of the time, he's just a civilian maintaining whatever requirements that he has to do.

[00:26:37] Speaker 00:
Thank you.

[00:26:43] Speaker 00:
Thank you.

[00:26:44] Speaker 02:
We thank both sides, and the case is submitted.

[00:26:46] Speaker 02:
Thank you.