[00:00:01] Speaker 01: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 01: God save the United States and this honorable court. [00:00:11] Speaker 02: Thank you, and good morning, everyone. [00:00:13] Speaker 02: The first argued case this morning is on the 19th, 1166. [00:00:18] Speaker 02: Preston back against the United States. [00:00:21] Speaker 02: Mr. Rondeau, proceed. [00:00:24] Speaker 04: Good morning, Your Honors. [00:00:26] Speaker 04: This is Peter Rondeau representing the appellate. [00:00:29] Speaker 04: And plaintiff in this case, Mr. Logan B. Prestonback. [00:00:32] Speaker 04: I'm from the Hoover Law Firm of Junction City, Kansas. [00:00:35] Speaker 04: It's an honor and privilege to be able to argue here today on behalf of my client. [00:00:40] Speaker 04: This case is about a recruitment action of the expense of a West Point education. [00:00:48] Speaker 04: Recruitment of such tuition assistance is authorized in this case, if at all, both by statute and regulation, only if there is an agreement [00:01:00] Speaker 04: emphasize agreement to reimburse the Army for the cost of that education, the terms of which recite to and refer to certain events which would authorize recruitment. [00:01:14] Speaker 04: None of those events took place in this case, including a voluntary failure to complete the agreed upon term, which is the premise for recruitment that has been affected thus far against my client. [00:01:30] Speaker 04: Now, my client did not complete the term he agreed upon, but he did not do so voluntarily. [00:01:37] Speaker 04: In fact, he was involuntarily discharged from the Army. [00:01:43] Speaker 04: In this appeal, we are simply asking this court to call an apple an apple and to recognize my client did not voluntarily fail to complete the term of his commission. [00:01:54] Speaker 03: But in fact, this is, this is Judge Raina. [00:01:57] Speaker 03: In the case of Favreau, we decided in almost identical language to the recruitment statutes here, that the recruitment statute encompasses involuntary separations, where the involuntary separation was caused by the service members' voluntary substandard performance. [00:02:18] Speaker 03: Why shouldn't, I don't understand why Favreau doesn't apply in this case and why it's not dispositive. [00:02:27] Speaker 04: Yes, Your Honor, thank you. [00:02:28] Speaker 04: In February, Your Honor, there was no prior determination by the agency that its separation of the service members in that case was in fact voluntary or involuntary. [00:02:41] Speaker 04: That was a separation because these service members could not comply with the gym teacher's requirements that they lose some weight. [00:02:53] Speaker 04: and they were thus separated from the Army and their termination and then recruitment of bonuses in those cases was affected. [00:03:03] Speaker 04: In this case, Your Honor, the record is complete, replete with clear and repeated determinations by the Army that my client's separation was in fact involuntary. [00:03:21] Speaker 04: I refer to the record [00:03:23] Speaker 04: at 1022, 1023, 1026, 1027, 1028 through 29, 30, and 36. [00:03:32] Speaker 04: All of these memorandums and determinations are expressly described by the Army, to whom, under applicable law, we are to pay a great deal of deference. [00:03:42] Speaker 00: So going back to... This is Judge Stoll. [00:03:44] Speaker 00: Oh, go ahead, Judge Raina, please. [00:03:46] Speaker 03: Going back to Farrell. [00:03:49] Speaker 03: Wouldn't you agree that the language in the recruitment statute in Favreau is almost identical to Section 2005 in this case? [00:03:58] Speaker 04: Yes. [00:04:00] Speaker 03: Okay. [00:04:01] Speaker 03: So what's your argument then that there was notice in Favreau and no notice here as to what constitutes a voluntary action? [00:04:12] Speaker 04: In Favreau the question was open. [00:04:17] Speaker 04: There was no express determination by the agency as it affected these separations that it was that these people were being voluntarily separated or that involuntary separation was in fact voluntary. [00:04:30] Speaker 04: That the court in Favreau engaged in more or less existential arguments about what constitutes voluntary as opposed to involuntary action. [00:04:42] Speaker 04: That question is not in play here. [00:04:45] Speaker 04: Here, the Army has repeatedly stated that this discharge was involuntary. [00:04:51] Speaker 04: And thus, if indeed we're going to pay deference to that determination, we must also conclude that my client was not voluntarily separated or that his actions for purposes recruitment should be considered to be voluntary. [00:05:09] Speaker 04: The agency itself has determined that this was an involuntary separation. [00:05:14] Speaker 00: This is Judge Stoll. [00:05:15] Speaker 00: Why is this not an involuntary separation because of a voluntary failure to follow orders and meet physical standards? [00:05:28] Speaker 04: Well, Your Honor, there is, I think, only so much bending of the words, of the meaning of words in this case. [00:05:39] Speaker 04: My client was indeed separated for actions attributed to his performance. [00:05:46] Speaker 04: The agency makes much of that in the statement of fact as well as in the argument. [00:05:50] Speaker 04: But ultimately, he was terminated on honorable conditions. [00:05:54] Speaker 04: His DD-214 is in the record in that case. [00:05:57] Speaker 04: And the Army, as it classified that action, determined this was involuntary. [00:06:04] Speaker 04: I believe that determination distinguishes this case from Favreau in that regard, where no such... [00:06:12] Speaker 00: I apologize for interrupting you, but just to make sure I understand your position, it's your view that because the separation was classified as involuntary and honorable, that that can't be the result of a voluntary failure as a matter of law? [00:06:32] Speaker 04: Yes, that is my view. [00:06:34] Speaker 04: That, in fact, [00:06:38] Speaker 04: I acknowledge that we are to give the agency a great deal of deference in how to run the Army when people are going to be separated or not separated. [00:06:47] Speaker 04: In fact, of course, we're not arguing that we should not have been separated. [00:06:50] Speaker 04: We're simply arguing that the agency itself made that determination that this was an involuntary separation. [00:06:57] Speaker 02: And we further... Would you comment on... Can you hear me? [00:07:03] Speaker 02: Yes, ma'am. [00:07:04] Speaker 02: Would you comment on the government's position that the general federal administrative employment rules apply rather than the contract? [00:07:18] Speaker 04: Yes, Your Honor. [00:07:19] Speaker 04: The administrative rules and the statute all refer ultimately back to the agreement to serve. [00:07:29] Speaker 04: Whether or not you reach... [00:07:33] Speaker 04: maybe reach is not the right word, whether or not you apply contractual rules of interpretation or administrative rules of determination or statutory construction, they all come back to the same place, the same fork in the road, if you will. [00:07:48] Speaker 04: And that fork in the road is the USMA 50, the agreement to serve. [00:07:53] Speaker 04: Whether or not it's an administrative or contractual question, the question becomes under the terms of that agreement, what does voluntary separation consist of? [00:08:04] Speaker 04: And so I don't believe in the ultimate analysis, I don't think it matters too much whether you use administrative or contractual rules to take a look at that question. [00:08:15] Speaker 02: But what... It seems undisputed that the performance was, I don't know, overstated, but let's say inadequate. [00:08:25] Speaker 02: Don't you have to really rely on the contract? [00:08:28] Speaker 02: rather than the right of an agency to discipline its workforce? [00:08:36] Speaker 04: Yes, and we, again, we do not take exception to the fact that we were separated. [00:08:41] Speaker 04: But we do point out that indeed it is a matter of contract or the agreement that that separation was not voluntary. [00:08:51] Speaker 04: It was in fact involuntary. [00:08:53] Speaker 04: And that is key for purposes of whether or not [00:08:57] Speaker 04: this recruitment was authorized under that agreement. [00:09:02] Speaker 04: It is the agency, not the appellant, who is arguing that this separation was involuntary. [00:09:09] Speaker 04: And with all due respect to court's previous holdings and determinations, we've reached the point where by administrative means or administrative interpretation, we were on the cusp of saying voluntary is involuntary. [00:09:24] Speaker 04: It's Orwellian. [00:09:26] Speaker 04: And in fact, [00:09:27] Speaker 04: It's got to the point where it makes no difference whether under those, under FABRO, whether or not the separation was voluntary or involuntary. [00:09:38] Speaker 04: And I think Congress recognized that if indeed there was no distinction between those terms, why then would it have been necessary in the year following the year my client entered into this agreement to eliminate that distinction in the statute? [00:09:55] Speaker 04: and make it clear that it is, what is in fact being argued here, that if the Army decides that things, quote, didn't work out, or for reasons that are unfavorable to my client, that it wishes to seek recruitment, that it could do so. [00:10:13] Speaker 04: That's what the statute in 2006 was amended to require. [00:10:19] Speaker 04: My client, however, and in this regard, it does make a difference whether it's administrative or contract. [00:10:25] Speaker 04: agreement was dated prior to the effective date of that amendment. [00:10:29] Speaker 04: It cannot be retroactively affected by that amendment so as to eliminate distinction between voluntary and involuntary, which is what we're arguing here. [00:10:38] Speaker 03: This is Judge Raina. [00:10:44] Speaker 03: Judge Newman, are we out of time here? [00:10:46] Speaker 02: No, I was just going to ask if there were more questions from the panel at this stage. [00:10:50] Speaker 02: So please proceed, Judge Raina. [00:10:52] Speaker 03: Okay, I have another question. [00:10:54] Speaker 03: I'm listening to your argument closely and it seems to me that this is the argument that the court that we rejected in Fravo, Favreau. [00:11:05] Speaker 03: You're arguing that the recoupment statute, and this is the argument that was made in Favreau, isn't limited to the circumstance of a service member being asked [00:11:18] Speaker 03: voluntarily asking to be separated or taking some sort of action that indicates voluntary separation. [00:11:24] Speaker 03: That's another reading of the recruitment statute in FAGRO. [00:11:28] Speaker 03: And it seems that you're extending that argument now, and you want us to read Decide FAGRO in this case. [00:11:35] Speaker 03: Because as you agree, the language in both situations, the statutory language is nearly identical. [00:11:44] Speaker 04: Yes, it is. [00:11:46] Speaker 03: So if we adopt your argument in this case, then we're deciding opposite of Favreau. [00:11:53] Speaker 04: Your Honor, my distinction between this case and Favreau is that in this case, the Army prior, as it was separating my client from the Army, I apologize for the thunderstorm in the background, made a determination that was involuntary. [00:12:10] Speaker 04: In Favreau, such a determination was not made. [00:12:12] Speaker 04: The statute remains the same. [00:12:14] Speaker 04: But the facts that you will feed into this mill, so to speak, are different. [00:12:19] Speaker 04: In this case, it's the Army that made the determination that was involuntary. [00:12:24] Speaker 04: And it did so repeatedly. [00:12:26] Speaker 04: And that is well-described in the record. [00:12:31] Speaker 04: The question was, was it not open in this case? [00:12:34] Speaker 02: I'll proceed, Judge Rainer. [00:12:36] Speaker 03: I'm done, Judge Newman. [00:12:39] Speaker 02: OK. [00:12:39] Speaker 02: Anyway, we'll save the full rebuttal time. [00:12:42] Speaker 02: Let's hear from the other side. [00:12:44] Speaker 02: Mr. Hirschfeld. [00:12:46] Speaker 01: Thank you, Your Honor. [00:12:47] Speaker 01: May I please the Court? [00:12:48] Speaker 01: The Court should affirm the Court of Federal Claims, which upheld the Army Board for Correction of Military Records decision. [00:12:53] Speaker 01: The Army Board decision was not arbitrary, capricious, without substantial evidence or contrary. [00:12:59] Speaker 02: But the Army made a deal when they recruited this person to go to West Point to serve for five years. [00:13:08] Speaker 02: This charge was honorable. [00:13:12] Speaker 02: Why doesn't that contract control rather than the rules of the right of an agency to remove inadequate performers? [00:13:26] Speaker 01: Well, Your Honor, we believe that based on Larianoff and Bell, the Supreme Court decisions, contract law does not apply in the military pay context. [00:13:37] Speaker 02: Well, then why do they make this contract? [00:13:40] Speaker 02: In the beginning, students are recruited to go to the service academies, and they receive a contract. [00:13:49] Speaker 02: You're saying that that's just meaningless, that the government is not bound by any contractual deal that it makes? [00:13:58] Speaker 01: Your Honor, based on Larionov and Bell and Schism, the government, in fact, is bound by statutory pronouncements. [00:14:06] Speaker 01: And this, of course, this agreement [00:14:08] Speaker 01: The Form 550 was promulgated specifically to be consistent with 10 USC Section 2005. [00:14:17] Speaker 01: And also to answer your question, Judge Newman, this agreement didn't just serve the purpose of him agreeing to serve. [00:14:28] Speaker 01: It also was his oath of office. [00:14:31] Speaker 01: And it also registered him for selective service, which, of course, when all of us respond to the selective service, [00:14:38] Speaker 01: mailing that we get when we're younger. [00:14:40] Speaker 01: That, of course, doesn't mount to a contract with the United States. [00:14:45] Speaker 01: It is a required statutory undertaking that we all must do. [00:14:50] Speaker 02: But how do we battle with a contract if it doesn't mean anything? [00:14:55] Speaker 02: The discharge was honorable. [00:14:57] Speaker 02: It would be, we'd have a different situation. [00:14:59] Speaker 02: I have no trouble with it. [00:15:02] Speaker 02: If there was, if the discharge was dishonorable or even under that intermediate status between honorable and dishonorable, I gather none of that prevailed. [00:15:21] Speaker 01: Um, Your Honor, I mean, ultimately the basis of his separation, whether it was honorable or dishonorable, is not, I think, an issue in this case. [00:15:30] Speaker 02: Ultimately, the question is, is whether or not he... No, it's not an issue because it's not challenged. [00:15:35] Speaker 02: The discharge was honorable. [00:15:37] Speaker 01: Uh, yes, Your Honor, but it was also the discharge related to the voluntariness of his action, which ultimately, whether or not you determine this is, as we would say, it should be administrative given that [00:15:50] Speaker 01: This comes from an administrative record. [00:15:52] Speaker 01: It was decided by a board. [00:15:54] Speaker 01: Under this court's prior decisions in METS and WALS, it should be treated as whether or not the board's decision was arbitrary and capricious. [00:16:04] Speaker 01: And that should be the standard review. [00:16:06] Speaker 01: But ultimately, the language in the statute and the language in the Form 550 agreement are the same. [00:16:15] Speaker 01: court's decision in Radler, you look ultimately to the statute if a contract, assuming the court were to go that way, and we, of course, say it shouldn't, it would still bottom at the same point because it would be based on what the statute says because the agreement derives directly from the statute, includes identical terms. [00:16:37] Speaker 01: And moving on from that, Your Honor, whether or not it's contract or statute, [00:16:44] Speaker 01: Ultimately, the question is squarely determined by Favreau. [00:16:48] Speaker 01: Mr. Prestonback's counsel stated repeatedly that the facts in Favreau were different, in that the plaintiffs in Favreau were not involuntarily separated. [00:17:01] Speaker 01: In fact, they were. [00:17:01] Speaker 01: If you look on page 1357 of this court's decision, it asks, is what voluntary? [00:17:09] Speaker 01: It is true that the administrative act of separation itself was not voluntary in any meaningful way. [00:17:15] Speaker 01: Indeed, defendant has stipulated that it involuntarily separated plaintiffs. [00:17:21] Speaker 01: So this is on all fours with Favreau. [00:17:25] Speaker 01: Like Favreau, Mr. Prestonback was involuntarily separated. [00:17:30] Speaker 01: But like Favreau, the question isn't in the statute and in the agreement. [00:17:35] Speaker 01: They both state the same thing, which is whether or not it was the voluntariness of the underlying action. [00:17:40] Speaker 01: The statute reads, if such a person voluntarily, because of misconduct, fails to complete the period of active duty. [00:17:46] Speaker 01: Form 550 itself says, if I voluntarily fail because of misconduct fail, complete the period of active duty. [00:17:53] Speaker 01: The action there is actually the service member's action. [00:17:57] Speaker 01: It's not the act of separation. [00:17:59] Speaker 01: In fact, as Fabro pointed out, separation is not used in the recruitment statute. [00:18:05] Speaker 02: But what you see was bothering me that there was no assertion of misconduct. [00:18:11] Speaker 02: There was no finding of anything at all relating to dishonorable discharge. [00:18:20] Speaker 02: This is my problem with where these lines are drawn. [00:18:25] Speaker 01: I understand, Your Honor. [00:18:26] Speaker 01: And in fact, if you look at the agreement itself on page 1056, [00:18:30] Speaker 01: or at the statute itself, there are two bases to be separated. [00:18:36] Speaker 01: There are two bases when a service member fails to meet his obligation. [00:18:45] Speaker 01: It can be either based on voluntariness or misconduct. [00:18:49] Speaker 01: We're not contending that it's misconduct, but that points us back to what does voluntariness mean. [00:18:54] Speaker 01: And in fact, Favreau, again, once again states what that means. [00:18:59] Speaker 01: Most actions are going to be voluntary because they're based on the volition of the service member. [00:19:05] Speaker 01: This court on page 1360 of the Favreau decision said that the exceptions really to voluntariness are if somebody is disabled in the line of duty or his actions are beyond the control of the individual. [00:19:17] Speaker 01: That comes from a plate of history of these statutes. [00:19:21] Speaker 01: And the court quoted it and took that as a basis to conclude that in fact that the service members in Favreau [00:19:30] Speaker 01: should not, you know, avoid recruitment. [00:19:35] Speaker 01: And indeed here, Mr. Pressenbach's volitional actions pointed the way that he was substandard in his duty performance. [00:19:42] Speaker 01: He knew that these actions could lead to separation. [00:19:47] Speaker 03: In fact... Well, Counselor, this is, this is, this is, Judge Raina, here's where I began to have a little bit of problem here. [00:19:56] Speaker 03: Pressenbach knew [00:19:58] Speaker 03: Your argument is that he knew because he had several notices were given to him about his substantive performance. [00:20:05] Speaker 03: And you view that as being some form of notice, I guess. [00:20:10] Speaker 03: In February, didn't the form that the person, the service member signed or that applied there actually state not being physically fit or being overweight is a reason for separation? [00:20:24] Speaker 01: I don't think so, Your Honor. [00:20:25] Speaker 01: I think that in Favreau it came from the regulations that applied there. [00:20:33] Speaker 01: And like, in fact, in Mr. Favreau's circumstance, after the first two referred officer evaluation reports, his third one, which was not the basis of the separation, in fact, he did fail the weight test. [00:20:48] Speaker 01: So in some ways, he's in the same as Favreau plaintiffs. [00:20:53] Speaker 01: But ultimately, I don't believe that was part of their agreement, as far as I fall from the fabro to honor. [00:21:00] Speaker 03: Weren't you asking us to give you license to pretty much decide what's voluntary and what's not? [00:21:08] Speaker 03: It seems that the only clear-cut case of there being a voluntary separation is when somebody comes up and says, I want out. [00:21:17] Speaker 03: But if they don't say that, because they don't want out, they want to stay in, and you separate them, [00:21:23] Speaker 03: under your argument. [00:21:26] Speaker 03: It can be almost for any reason. [00:21:29] Speaker 01: I think ultimately, Your Honor, it can't be for any reason. [00:21:33] Speaker 01: If he is involuntarily separated or if he involuntarily fails to meet his requirements of the agreement and of the statute, it's because of disability in the line of service. [00:21:45] Speaker 01: That's one basis. [00:21:46] Speaker 01: And whether or not it's beyond the control of the individual. [00:21:49] Speaker 01: And if there's a determination that, in fact, it was beyond Mr. President's back control, then, in fact, then he would have met that voluntariness standard, and we wouldn't be seeking to recoup that money from him. [00:22:07] Speaker 01: But here, there's no question that what he did was volitional. [00:22:11] Speaker 01: He failed to follow direct orders. [00:22:13] Speaker 01: He lacked initiative drive, and he performed below other lieutenants, and that's [00:22:18] Speaker 01: at appendix 1042 and 1046. [00:22:19] Speaker 01: He admitted it. [00:22:20] Speaker 02: How do we know? [00:22:22] Speaker 02: His discharge was honorable. [00:22:24] Speaker 02: Are you asking us, surely we can't review the basis of his discharge? [00:22:34] Speaker 01: Well, I don't think he's contesting his discharge, Your Honor. [00:22:38] Speaker 01: Certainly not. [00:22:40] Speaker 02: His discharge was honorable. [00:22:41] Speaker 02: But it looks as if the government says, never mind. [00:22:45] Speaker 02: We're going to treat it as if it were dishonorable. [00:22:48] Speaker 01: Well, Your Honor, somebody can be honorably discharged even if they were not a good performer. [00:22:55] Speaker 02: You're asking us to decide whether or not, there is no question, but that the government was entitled to discharge to decide that this person is not turned out to be a good performer, which perhaps I don't know and can think of all sorts of reasons why it took so long. [00:23:17] Speaker 02: to figure that out, but the question is, what is the consequence when there was an explicit statute which states the obligation of a service academy graduate, which was not quite fulfilled involuntarily? [00:23:38] Speaker 01: Well, ultimately, Your Honor, we would disagree. [00:23:41] Speaker 01: We think it was voluntarily failed. [00:23:45] Speaker 01: He was given counseling. [00:23:47] Speaker 01: Numerous occasions notice of this problem. [00:23:50] Speaker 01: That's on pages 23 and 1047 of the record. [00:23:55] Speaker 02: In fact, in one of the... There was no finding, was there, by the board that he deliberately acted in a way that would get him removed from the Army? [00:24:11] Speaker 01: Well, I think, actually, if you do look at the board's position, [00:24:17] Speaker 01: It ultimately includes that even the fact that he was involuntarily discharged, they, in fact, conclude that his actions were voluntary that led to that discharge. [00:24:31] Speaker 01: So the board does, in fact, support that conclusion. [00:24:34] Speaker 01: And ultimately, Your Honor, I hope you're having difficulty with the question. [00:24:38] Speaker 01: Oh, I'm sorry. [00:24:40] Speaker 00: Mr. Hertzfeld, this is Judge Stahl. [00:24:42] Speaker 00: I understand that this very issue and argument was presented in the Favreau case at page, I think it's 357 to 358, and talks about this very issue and emphasizes that the term separation is not used in the recruitment provisions. [00:25:00] Speaker 00: Instead, the relevant phrase is complete the term of enlistment. [00:25:04] Speaker 00: Can you talk about that issue in Favreau? [00:25:06] Speaker 00: I know you discussed it a little bit earlier. [00:25:08] Speaker 00: but it seems like it's relevant to the discussion that we're having now as well. [00:25:13] Speaker 01: Thank you, Your Honor. [00:25:14] Speaker 01: I think it's absolutely on point. [00:25:16] Speaker 01: I mean, there's that one paragraph on 1357 and 1358 that makes it very clear that, you know, it asks what voluntary in Section 2005 and here in the Form 550 agreement. [00:25:31] Speaker 01: Ultimately, it's not the act of separation because separation isn't in the statute, it's not in [00:25:37] Speaker 01: Form 550. [00:25:40] Speaker 01: What it looks to is the voluntariness of the underlying behavior. [00:25:44] Speaker 01: That's, in fact, what this court concluded. [00:25:47] Speaker 01: And that's in page 1357 and footnote 18, where it makes this point. [00:25:53] Speaker 01: In fact, the court repeatedly rejected other circuits and other courts that made dissimilar determinations and, in fact, found that voluntariness [00:26:05] Speaker 01: deals with the underlying behavior and not the act of separation. [00:26:09] Speaker 01: And if the court follows Favreau, should certainly affirm here. [00:26:15] Speaker 01: I want to also pivot back to something that Judge Newman mentioned. [00:26:20] Speaker 01: Somebody can be honorably discharged notwithstanding the fact that they may have been a substandard performer because [00:26:27] Speaker 01: Determining whether or not somebody gets an honorable characterization is dependent on whether or not they've conducted if they've had misconduct. [00:26:37] Speaker 01: That's one of the main reasons. [00:26:38] Speaker 01: So if somebody is not discharged based on misconduct, they are probably going to get at least an honorable discharge or at least a neutral discharge if there are other issues. [00:26:53] Speaker 01: But typically, [00:26:56] Speaker 01: The characterization is an issue. [00:26:58] Speaker 01: And typically, the characterization will relate to misconduct or the person's conduct. [00:27:08] Speaker 03: Yes, Your Honor. [00:27:11] Speaker 03: In February, we decided that case on the basis of the Chevron doctrine. [00:27:17] Speaker 03: And we looked at the Department of Defense's regulations and gave those regulations the Chevron deference [00:27:25] Speaker 03: Here, we don't have a regulation at issue, do we? [00:27:28] Speaker 01: No, Your Honor. [00:27:30] Speaker 03: So all we have is the document that some call an agreement. [00:27:34] Speaker 03: You say it's not an agreement. [00:27:37] Speaker 03: So if we take that off the table, then the only thing we have is a statute. [00:27:41] Speaker 01: Well, Your Honor, actually we also have, unlike in Favreau, what we do have is a board decision. [00:27:48] Speaker 01: And of course, this court will uphold that board decision unless it's arbitrary or capricious contrary to law. [00:27:55] Speaker 01: This decision is, in fact, consistent with law. [00:28:01] Speaker 01: It's consistent with the statute. [00:28:02] Speaker 01: It's consistent with Favreau. [00:28:05] Speaker 01: And therefore, it should be upheld for that reason. [00:28:07] Speaker 01: So in that circumstance, this court is looking at that board determination based on, you know, this court's precedent and mess and walls. [00:28:16] Speaker 01: Once a plaintiff goes or a service member goes to the board, this court reviews it as an administrative action and applies that standard. [00:28:25] Speaker 01: that it's clear that what the board did was proper and was not contrary to law. [00:28:30] Speaker 01: So in some sense, it's not Chevron deference, Your Honor, but it follows the standard procedure that this court uses in hearing board determinations. [00:28:41] Speaker 02: OK. [00:28:43] Speaker 02: Any more questions for Mr. Roosevelt? [00:28:49] Speaker 01: Hearing questions, Your Honor. [00:28:51] Speaker 01: The United States respectfully requests that this court affirm the decision below and follows the Favreau decision. [00:28:57] Speaker 01: Thank you. [00:28:58] Speaker 02: Okay. [00:28:59] Speaker 02: Thank you. [00:28:59] Speaker 02: Mr. Rambo, you have your rebuttal time. [00:29:02] Speaker 04: Just a few minutes, Your Honor, and thank you. [00:29:04] Speaker 04: The board that Mr. Hirschfeld just referred to, in fact, found this to be a question of breach of agreement that's found in the record at page 1008, where they did indeed construe this to be [00:29:20] Speaker 04: a question of whether or not my client complied with the terms of his enlistment agreement. [00:29:25] Speaker 04: And it is an agreement. [00:29:27] Speaker 04: Acceptance of an agreement or a contract can be demonstrated by performance. [00:29:33] Speaker 04: And of course, after my client signed this agreement, he went to West Point, and there was a locker there with his name on it, and they put the uniform on as well. [00:29:41] Speaker 03: But the government didn't sign the agreement, did they? [00:29:44] Speaker 04: No, they did not, Your Honor, but again. [00:29:46] Speaker 03: I mean, typically when we have a government contracts case, we have someone with authority that signs the agreement or that takes action that gives authority to the agreement. [00:29:58] Speaker 03: I don't see that. [00:29:59] Speaker 03: I see that lacking here. [00:30:00] Speaker 04: Yes, it does. [00:30:02] Speaker 04: There is no signature or express approval of it, but indeed it's demonstrated by the Army's performance of this agreement. [00:30:09] Speaker 04: It's clear that [00:30:10] Speaker 04: The Army believed there was an agreement. [00:30:12] Speaker 04: In fact, the board found that there was a breach of agreement in this case. [00:30:16] Speaker 04: The statute expressly authorizes recruitment if there is a written agreement with the secretary under the terms of which that person shall agree to reimburse the Army if he did not complete his ADSO as specified in the agreement. [00:30:32] Speaker 04: And, of course, that gets us back to where we began, voluntary separation. [00:30:37] Speaker 04: And whether or not Chevron deference is applied here or not, the question is, unlike Fabro in this case, as my client was going through this, he was repeatedly informed that he was being involuntarily separated. [00:30:50] Speaker 04: If we give deference to the Army determinations in that regard, recruitment should not be authorized in this case. [00:30:57] Speaker 04: And it should be reimbursed for that which has been recouped thus far. [00:31:02] Speaker 04: Thank you. [00:31:06] Speaker 02: Any more questions? [00:31:09] Speaker 02: Thank you. [00:31:10] Speaker 02: Thank you both. [00:31:11] Speaker 02: The case is submitted.