[00:00:00] Speaker 04:
for argument is 21-1624 Bailey versus United States.

[00:00:42] Speaker 04:
No, don't sit down, Mr. Johns.

[00:00:44] Speaker 04:
Come on.

[00:00:58] Speaker 00:
Good morning.

[00:00:59] Speaker 00:
And may it please the court and Johns here on behalf of retired Lieutenant Colonel Tom Bailey.

[00:01:07] Speaker 00:
I may refer to him as Mr. Bailey sometimes, but he is retired Lieutenant Colonel.

[00:01:13] Speaker 00:
This matter has been briefed and submitted to the court.

[00:01:19] Speaker 00:
And on behalf of Mr. Bailey today, I wanted to focus on two key areas for your consideration as you review the matter and consider our oral arguments today.

[00:01:32] Speaker 00:
First, we agree with the Department of Justice, with the government, that the matter before the court is reviewed and open.

[00:01:43] Speaker 00:
And so we can depart, I think, from that standpoint.

[00:01:49] Speaker 00:
And so I think what the court is charged with and what we are charged with proving

[00:01:56] Speaker 00:
is that the Air Force Board of Corrections for Military Records, the AFB-CMR, made its decision ruling against Mr. Bailey in an arbitrary and capricious manner.

[00:02:11] Speaker 02:
When you say no vote, you're not suggesting that this is for us to decide the facts?

[00:02:18] Speaker 02:
everything about this case as if nothing had gone on before?

[00:02:24] Speaker 00:
No, Your Honor.

[00:02:24] Speaker 00:
It's simply to review whether their determination was arbitrary and capricious.

[00:02:37] Speaker 00:
The issue that was before the court of federal claims and now before this court,

[00:02:49] Speaker 00:
goes to whether the AFB-CMR properly considered its own medical experts.

[00:03:00] Speaker 00:
It was remanded from the Court of Federal Claims back to the AFB-CMR one time previously.

[00:03:11] Speaker 00:
And the AFB-CMR was directed to use a proponents of the evidence standard.

[00:03:20] Speaker 01:
Once again, the- So what is it you think that was compelling or misunderstood or not treated appropriately in terms of that testimony?

[00:03:30] Speaker 00:
So, Your Honor, the first complicating factor we put before the court is that the experts were the board's own experts that provided the compelling testimony that, in fact,

[00:03:49] Speaker 00:
Mr. Bailey's actions were not.

[00:03:51] Speaker 00:
Mr. Bailey's actions at the time in question were the result of a medical condition.

[00:03:59] Speaker 00:
And so the departure point that the board solicits these experts, and I think both sides admit that that was discretionary to the board.

[00:04:12] Speaker 00:
But once engaged, it would be arbitrary and capricious to simply

[00:04:19] Speaker 00:
discounted now on reconsideration after the remand from the court of federal claims the the board did produce language that said that they thought that the opinions were half-hearted and uncertain and unconvincing

[00:04:41] Speaker 00:
But even without reweighing that evidence, I think just a plain reading of the conclusions of those experts belies the board's determination that they were half-hearted and unconvinced and uncertain.

[00:05:09] Speaker 02:
Well, half-hearted maybe a little bit.

[00:05:12] Speaker 02:
It's an unfortunate terminology.

[00:05:16] Speaker 02:
That starts to suggest that it was dashed off, which I'm sure it was not the case.

[00:05:20] Speaker 02:
But uncertain seems to me not an entirely inaccurate description of both experts, one of whom said, if I recall, that this medical condition

[00:05:33] Speaker 02:
could have been a precipitating factor, and the other, the psychiatrist, I think it was, said that she viewed it as sufficiently likely that she thinks the board should consider granting relief.

[00:05:48] Speaker 02:
But both of them are in the area of possible slash likely, it seems to me, and it's not, I'm not sure how inaccurate the

[00:05:59] Speaker 02:
efforts for correction of military records in its characterization.

[00:06:06] Speaker 00:
Well, Your Honor, I think in response, what I would say is that it is all still under, it has to be looked at through the lens of the standard or the burden of proof, which is preponderance of the evidence.

[00:06:20] Speaker 00:
And these opinions are, in addition to Mr. Bailey's own evidence presented,

[00:06:29] Speaker 00:
reasonable circumstantial evidence can produce reasonable inferences.

[00:06:35] Speaker 00:
And I think that certainly Dr. Czerniak's conclusion, both medical experts recommended providing relief to Mr. Bailey.

[00:06:46] Speaker 00:
And so while some of their language related to the diagnoses may be somewhat reserved,

[00:07:00] Speaker 00:
Their recommendations are both that Mr. Bailey be granted relief.

[00:07:07] Speaker 00:
And so to the extent that there's a question of them being half-hearted or uncertain, I think they're very clear in their recommendation to the panel that Mr. Bailey be granted that relief.

[00:07:24] Speaker 04:
Well, I mean, Dr. Carson recommends Mr. Bailey be granted the relief.

[00:07:30] Speaker 04:
But Dr. Carson's opinion at page 182 and 183 really just goes back and forth, back and forth over whether the behavior was attributed to the alcohol consumption versus sort of solely being directed to a seizure disorder.

[00:07:47] Speaker 04:
And one of the things that Dr. Carson laments is the fact that there was no blood alcohol level or drug screening or breathalyzer at the time.

[00:07:58] Speaker 04:
The guy, by his own admission, drank five 80-proof beverages that day.

[00:08:06] Speaker 04:
I don't know.

[00:08:08] Speaker 04:
I don't think I need a breathalyzer to know that alcohol wasn't obviously a factor.

[00:08:14] Speaker 04:
And that seems to be what Dr. Carson was saying.

[00:08:17] Speaker 04:
So while Dr. Carson erred on the side of saying that it really

[00:08:26] Speaker 04:
I really read this opinion, and I've read each of the doctor's opinions entirely.

[00:08:31] Speaker 04:
He recommends granting the relief, but at the same time cannot rule out that this is an alcohol-related problem.

[00:08:44] Speaker 00:
Well, Your Honor, in response, the record, I believe, indicates that the 80-proof drink was Mr. Bailey's last drink, the Octaveat.

[00:08:57] Speaker 04:
What were the first four?

[00:08:59] Speaker 00:
That they were beers and a sangria.

[00:09:03] Speaker 00:
I think this is his testimony.

[00:09:05] Speaker 00:
Where is that?

[00:09:06] Speaker 02:
And this, I'm looking at- I had the impression that at least at some point

[00:09:11] Speaker 02:
the record, they referred to five aquavits.

[00:09:16] Speaker 02:
Aquavit is a pretty strong drink.

[00:09:17] Speaker 02:
I think it's equivalent to vodka.

[00:09:19] Speaker 00:
I would agree, Your Honor.

[00:09:21] Speaker 00:
I'm looking at the appendix 180, and this is the report from Dr. Mendenhall, who was Mr. Bailey's physician at the time.

[00:09:38] Speaker 00:
He says, three beers, one sangria,

[00:09:42] Speaker 00:
than the Danish tent, which is the national beverage, one drink of aquavit.

[00:09:51] Speaker 00:
And the testimony is that these occurred over six hours.

[00:09:57] Speaker 00:
And I think you're honored to go just a little bit further.

[00:10:08] Speaker 00:
the medical determination.

[00:10:10] Speaker 04:
And he had these five alcoholic beverages while knowing he was taking antihistamines.

[00:10:16] Speaker 00:
Well, interestingly enough, Your Honor, Brigadier General Hyde ruled out the suggestions from Dr. Mendenhall, which was the 2011 analysis where Dr. Mendenhall said, you know,

[00:10:36] Speaker 00:
It was alcohol, but there was also heat exhaustion, there was insomnia, there was antihistamines, there was a wide combination of... I'm sorry, can I just interrupt you because I'd like to think about the context in which we're having this discussion about all these factual findings.

[00:10:55] Speaker 01:
and in several places.

[00:10:58] Speaker 01:
But the Court of Federal Plains, I guess in the reconsideration decision, says this Court has already concluded there is justification in the record for the AFB-CMR's conclusion that Mr. Bailey's consumption of alcohol

[00:11:12] Speaker 01:
not his recently diagnosed seizure condition, was more likely than not the cause of his conduct.

[00:11:19] Speaker 01:
For this reason, we affirm.

[00:11:20] Speaker 01:
And the government... Maybe I misheard.

[00:11:23] Speaker 01:
I thought you started off by saying, we're all in agreement.

[00:11:25] Speaker 01:
This is de novo review.

[00:11:27] Speaker 01:
On what basis do we review those conclusions?

[00:11:30] Speaker 01:
The government, in its briefs, says the government will not disturb the decision of the AFBCMAR unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

[00:11:40] Speaker 01:
So did I misunderstand or am I misunderstanding what the argument is here?

[00:11:46] Speaker 00:
Your Honor, our argument is that the

[00:11:52] Speaker 00:
The central argument is that the AFPCMR, by disregarding the medical testimony of its own experts, made an arbitrary and capricious decision.

[00:12:07] Speaker 00:
And we believe that that is reversible.

[00:12:09] Speaker 00:
And so I think that that's the departure point.

[00:12:13] Speaker 02:
Is that, are you arguing for an across the board per se rule that if the AFDCMR seeks advice as to a question, a medical type question from experts, that it may not

[00:12:31] Speaker 02:
depart from the conclusion that those medical experts reach as to the recommended action to be taken?

[00:12:38] Speaker 00:
No, I don't think that's the proposition, Your Honor, but I think that the proposition is that they can't be disregarded.

[00:12:48] Speaker 02:
I don't know that it's fair to say they were disregarded in this case because they were addressed.

[00:12:56] Speaker 02:
The board found that it was not persuaded to take the same view that the medical experts did as to the propriety of, in fact, cutting him some slack.

[00:13:09] Speaker 02:
Well, the board's decision was- Those reports were disregarded because the board disagreed with the recommendations.

[00:13:22] Speaker 02:
Is that enough to constitute disregarding them, even if they discuss them?

[00:13:26] Speaker 00:
Yes, Your Honor.

[00:13:27] Speaker 00:
I think that the case law would suggest that you have to consider all the evidence, including the evidence that's against the board's own decision.

[00:13:43] Speaker 00:
And I think that to say we considered it,

[00:13:49] Speaker 00:
that you know the board could simply say we considered the evidence anytime there's there's evidence that conflicts with the board decision if they simply say well we considered it and find it unconvincing then every case you're not suggesting that they absolutely have to adopt it then it wouldn't be a recommendation it would be

[00:14:13] Speaker 01:
deferring decision making to these experts, right?

[00:14:16] Speaker 01:
So that's not the position they're taking.

[00:14:19] Speaker 00:
No, clearly that's not the position.

[00:14:21] Speaker 00:
But again, there's the notion of the weighing of the evidence.

[00:14:25] Speaker 00:
And I think that disregarding it doesn't give it proper weight of evidence.

[00:14:35] Speaker 00:
And it's also, I think, important to note that

[00:14:42] Speaker 00:
Brigadier General Hyde, his decision was that it was the original one which you know sets us off on this case was that it was solely consumption of alcohol.

[00:14:55] Speaker 00:
In fact he

[00:14:56] Speaker 00:
he disregarded Dr. Mendenhall's diagnosis and analysis.

[00:15:03] Speaker 00:
So really all of these proceedings go back to a medical decision made by the commanding officer who was not a physician himself.

[00:15:17] Speaker 00:
the totality of the evidence shows that there's no physician that says conclusively that it was alcohol or alcohol intoxication.

[00:15:34] Speaker 00:
There is, because of the matter that

[00:15:40] Speaker 00:
Chief Judge Moore addressed there.

[00:15:42] Speaker 00:
There was no BAC There was no breathalyzer test.

[00:15:49] Speaker 04:
What is it that you allege we should conclude was the basis for the action he undertook that day?

[00:16:01] Speaker 04:
You're asking us to what?

[00:16:04] Speaker 04:
to overturn the fact-finding that alcohol was the factor.

[00:16:10] Speaker 04:
What precisely are you asking us to do?

[00:16:13] Speaker 00:
Well, we're asking to reverse and remand for the board to provide proper... But precisely to do what?

[00:16:22] Speaker 04:
Like, overturn which particular fact-finding, which conclusion of law, which thing is arbitrary and capricious, which particular thing?

[00:16:32] Speaker 00:
that the board did not that the board's conclusions based on its own expert reports were not considered in a reasonable manner that they must reconsider those experts

[00:16:57] Speaker 04:
Well, they considered them and talked about them.

[00:17:00] Speaker 04:
You just don't like the result they reached with regard to them.

[00:17:03] Speaker 04:
So I don't understand what us sending them back and telling them to air quotes consider them would get you, because they did consider them.

[00:17:11] Speaker 00:
Well, we believe, Your Honor, that with the reconsideration and the

[00:17:20] Speaker 00:
and the direction that they provide the proper weight, the proper analysis, that it would result in a different finding.

[00:17:30] Speaker 04:
I'm still not following you in terms of the relief you want.

[00:17:33] Speaker 04:
There's two things that we could do.

[00:17:35] Speaker 04:
We could say the board didn't consider something, send it back and make them reevaluate everything, taking that into consideration.

[00:17:43] Speaker 04:
And we often do that if a board completely fails to address something that seems very important.

[00:17:49] Speaker 04:
But that's a matter of they didn't consider it.

[00:17:51] Speaker 04:
Here it's clear they did, right?

[00:17:52] Speaker 04:
There's no evidence they were oblivious to this.

[00:17:55] Speaker 04:
They did consider it, right?

[00:17:59] Speaker 04:
You just don't like the outcome.

[00:18:01] Speaker 00:
Well, I think that the determination that they made and the outcome that they reached is unreasonable given what was before them.

[00:18:15] Speaker 04:
So then you want us to flat out reverse and say that no reasonable board could have concluded on this record as they did.

[00:18:23] Speaker 00:
That's what we believe in.

[00:18:25] Speaker 04:
All right.

[00:18:26] Speaker 04:
Let's hear from the opposing council.

[00:18:28] Speaker 04:
Thank you, honor.

[00:18:30] Speaker 04:
Mr. Orfield?

[00:18:45] Speaker 03:
May it please the court.

[00:18:46] Speaker 03:
Mr. Bailey's appeal has raised three key issues as set forth in the government's papers.

[00:18:52] Speaker 03:
And as I will explain further, all of these arguments lack merit.

[00:18:57] Speaker 03:
First, the court should reject Mr. Bailey's argument that repeated reconsideration by the board of- He didn't raise that today in oral argument.

[00:19:07] Speaker 03:
He didn't really want to start with that?

[00:19:08] Speaker 03:
Certainly, I'm happy to get into the issue of the decisions, Your Honor.

[00:19:13] Speaker 03:
That's what Mr. Bailey's argument has focused on today.

[00:19:17] Speaker 03:
The trial court's initial decision had concluded that the board had erroneously applied a higher standard than was required and asked Mr. Bailey to prove by more than a preponderance of the evidence that there was an error.

[00:19:39] Speaker 04:
he he he he he he he he he he he

[00:20:09] Speaker 04:
And that both of them concluded in favor of Mr. Bailey's seizure disorder and said they couldn't agree that this was entirely attributed to any intoxication.

[00:20:21] Speaker 04:
Is that fair?

[00:20:22] Speaker 03:
Well, they essentially say they can't tell.

[00:20:25] Speaker 03:
They can't be certain about it.

[00:20:27] Speaker 03:
And both opinions indicate that there's no certainty.

[00:20:32] Speaker 03:
They do, to different degrees, seem to recommend something.

[00:20:37] Speaker 03:
What the initial opinion from Dr. Carson recommends is simply that consideration be given to giving Mr. Bailey some relief.

[00:20:47] Speaker 03:
Dr. Czernak at the end of her opinion decides to defer to the neurologist and recommend relief.

[00:20:54] Speaker 03:
I'm reading Czernak.

[00:20:56] Speaker 04:
This psychiatric consultant is in agreement with the opinion of the BCMR medical advisor and finds no indication to disagree with the diagnosis of a seizure disorder provided by a military neurologist and recommends granting the applicant's relief.

[00:21:14] Speaker 04:
doesn't seem quite as equivocal as you're suggesting.

[00:21:17] Speaker 03:
Well, she agrees with the diagnosis of the seizure disorder by the neurologist.

[00:21:21] Speaker 04:
And recommends granting the applicant the relief they seek.

[00:21:25] Speaker 03:
But agreeing with the diagnosis of the seizure disorder is not saying that she's deciding that what happened that day.

[00:21:35] Speaker 03:
Really?

[00:21:35] Speaker 04:
She then goes on to say she finds the decisions of the military department did represent an error.

[00:21:45] Speaker 03:
Well, I mean, what the neurologist says is that it's possible that this incident was caused by a seizure.

[00:21:53] Speaker 03:
She does recommend approval after talking about her appreciation of Mr. Bailey's service.

[00:22:01] Speaker 03:
But I think saying that she agrees with the diagnosis of a seizure disorder is not saying that she's concluded.

[00:22:08] Speaker 04:
She's concluded that because she agrees with the seizure disorder, she should grant the applicant relief.

[00:22:15] Speaker 04:
If she really thought his behavior that day was a direct result of intoxication and not likely attributed to the seizure disorder, she wouldn't say grant him the relief.

[00:22:24] Speaker 04:
She didn't say, oh yeah, it turns out he has a seizure disorder and a vacuum.

[00:22:28] Speaker 04:
She said he has a seizure disorder and I think he should get the relief in this case where the argument was,

[00:22:34] Speaker 04:
Did the behavior result from the seizure disorder or from the alcohol or potential intoxication, the drug or alcohol issues?

[00:22:41] Speaker 04:
She says random the relief he seeks.

[00:22:43] Speaker 04:
That's not equivocal.

[00:22:44] Speaker 04:
And the other opinion is equally clear.

[00:22:47] Speaker 04:
So I think Mr. Bailey's concern, which is legitimate, is the board decided to get its own two opinions, and both of them came back in his favor.

[00:22:57] Speaker 04:
And then the board's like, eh, turns out we didn't want those opinions after all, and just goes ahead and decides to the contrary.

[00:23:03] Speaker 04:
I don't know, maybe their decision's still not arbitrary and capricious, but I certainly understand why he's here on appeal.

[00:23:09] Speaker 03:
Well, Your Honor, there's a lot of other language in those two opinions as well as the final conclusion that shows that the medical person, the psychiatrist in the case of Dr. Kurnak or the doctor, Dr. Carson,

[00:23:29] Speaker 03:
is having a lot of are having a lot of questions about whether a medical issue could explain the event of that day and never come to a conclusion.

[00:23:39] Speaker 03:
There's very tentative language.

[00:23:41] Speaker 03:
That's what the board talks about in its decision.

[00:23:44] Speaker 03:
And although someone reweighing that evidence might come down in a different

[00:23:52] Speaker 03:
with a different decision.

[00:23:54] Speaker 03:
That's not what the court's role here is.

[00:23:56] Speaker 03:
I mean, the court's role is to look at whether a reasonable person applying the correct standard could come to this conclusion.

[00:24:03] Speaker 03:
And there's certainly plenty of tentative language in these decisions identified by the board that indicate that these two medical advisors were not able to conclude affirmatively that the reason for Mr. Bailey's violent activities on the day in question

[00:24:22] Speaker 03:
was a seizure rather than other factors within control.

[00:24:28] Speaker 02:
I suppose this isn't really a binary choice, right?

[00:24:32] Speaker 02:
It may be, and this is suggested in the opinions of the experts, that this was an underlying condition which was exacerbated by the alcohol, the histamines, and the heat.

[00:24:49] Speaker 03:
That is a possibility that they

[00:24:52] Speaker 03:
indicate that it could be, I mean, in general, the decisions are pretty clear that they're unable to state for certain what happened on that day.

[00:25:02] Speaker 03:
There's not any medical evidence that could make it absolutely clear.

[00:25:07] Speaker 03:
It could be one factor.

[00:25:08] Speaker 03:
It could be another.

[00:25:09] Speaker 03:
It could be a combination, as the court indicated.

[00:25:20] Speaker 03:
Turning back to an issue that's come up in Mr. Bailey's papers, one of his main arguments is that the consideration of the decision over and over again reflects some sort of bad faith and is itself arbitrary and capricious.

[00:25:36] Speaker 03:
And as we discussed in our papers, the statute and regulations provide for reconsideration.

[00:25:43] Speaker 03:
They don't put limits on that.

[00:25:44] Speaker 03:
But Mr. Bailey has suggested that there's bad faith here in some way.

[00:25:49] Speaker 03:
There's no evidence of bad faith in the record.

[00:25:51] Speaker 03:
The record shows that the board was acting in very good faith.

[00:25:55] Speaker 04:
I tried to lead you away from this.

[00:25:57] Speaker 03:
I'm sorry.

[00:25:58] Speaker 04:
I tried to open with it, and I sort of failed to understand your lack of appreciation.

[00:26:03] Speaker 04:
I hope you realize, as a government attorney, when you discuss something that they didn't, you now open the door to him doing whatever he wants on rebuttal.

[00:26:12] Speaker 04:
Because he didn't discuss it in his opening, so I wouldn't have let him discuss it in rebuttal.

[00:26:16] Speaker 04:
But now because you have, he can say whatever he wants on it.

[00:26:19] Speaker 04:
If you hadn't spoken to it, the whole thing would have gone on the way of the papers.

[00:26:22] Speaker 04:
Maybe you think your papers are weak.

[00:26:24] Speaker 04:
That's the only conclusion I reach when the government attorney stands up and tries to discuss something that was never mentioned at oral argument.

[00:26:30] Speaker 04:
So now you probably ought to address it.

[00:26:33] Speaker 03:
I'm sorry, Your Honor.

[00:26:38] Speaker 03:
In any event, I just wanted to note, with respect to bad faith,

[00:26:43] Speaker 03:
that there is significant evidence that the board was acting in good faith with a lot of concern for providing Mr. Bailey the proper process here.

[00:26:52] Speaker 04:
I mean honestly the back and forth of the board I mean well look I'm a big fan of sometimes you can make a mistake and you get bonus points for correcting it because that means you're not sort of dug in that I was right the first time and I'm never going to admit error but I mean didn't the board have to go back and forth on this one like five different times all because of board mistakes?

[00:27:16] Speaker 04:
That's a lot of mistakes you know one shame on me five what the heck

[00:27:20] Speaker 04:
Again, it kind of explains to me why Mr. Bailey's here.

[00:27:23] Speaker 04:
It seems like he got a tough deal.

[00:27:27] Speaker 03:
Well, Your Honor, it seems that these weren't so much board mistakes as perhaps internal mail issues.

[00:27:34] Speaker 03:
These were situations where the board didn't get a document before it completed its consideration.

[00:27:40] Speaker 03:
So there may have been some sort of administrative issue.

[00:27:43] Speaker 03:
But the board was very concerned with this and at every opportunity used its discretion to provide Mr. Bailey with reconsideration.

[00:27:51] Speaker 03:
It reconsidered his case on its own motion at one point.

[00:27:55] Speaker 03:
And that therefore dragged it on for six years and five decisions.

[00:27:58] Speaker 04:
It offered him a new- Because they repeatedly violated their own rules or messed up.

[00:28:03] Speaker 03:
It offered him a new panel.

[00:28:04] Speaker 03:
And in that letter where it wrote to him offering him a new panel, the second page of that letter provides a very

[00:28:13] Speaker 03:
Hard-felt expression of him having appropriate due process and their commitment to providing him that.

[00:28:21] Speaker 03:
Kind of a model of what you would want for a tribunal, but it's made an error.

[00:28:26] Speaker 03:
Mr. Bailey's also taken issue with this concern about not getting a new panel on the final review when the case was remanded back from the trial court.

[00:28:38] Speaker 03:
All the previous reviews, Mr. Bailey received a new panel.

[00:28:43] Speaker 03:
On the final review back from the trial court, I'd just like to note that, because we didn't understand that he was arguing about that one, that one was raised in his reply brief, that in the initial letter that promised the new panel, there's an explanation for why a new panel would not have been possible at that point, or to achieve the goals that the board was concerned about when it offered a new panel in the first place.

[00:29:11] Speaker 03:
The letter talks about wanting Mr. Bailey not to submit anything about the prior reviews to the new board so that the new panel was completely unaware of the prior reviews.

[00:29:23] Speaker 03:
And with a panel that was dealing with implementing or responding to a court order that described all the prior reviews, that was no longer something that would be possible, even if the board had needed to do it.

[00:29:36] Speaker 03:
But there's certainly no regulation, and its commitment

[00:29:40] Speaker 03:
a promise at that time, not necessarily a promise for all time.

[00:29:45] Speaker 03:
So I don't think there's any indication that there was bad faith or that it was improper in any way for the board to not assign a new panel when the case was reconsidered after remand.

[00:30:05] Speaker 03:
If the court has no further questions.

[00:30:11] Speaker 04:
Have some of the little time.

[00:30:19] Speaker 00:
Very briefly, Your Honor.

[00:30:22] Speaker 00:
I think that two points that are appropriate to bear out.

[00:30:31] Speaker 00:
The standard isn't certainty of opinion.

[00:30:37] Speaker 00:
Okay, if the standard was certainty, that is well beyond the preponderance of the evidence.

[00:30:46] Speaker 00:
And so I think to say that the medical experts were not conclusively certain takes the consideration beyond a preponderance of the evidence.

[00:30:58] Speaker 00:
Again, knowing that circumstantial evidence can lead to reasonable inferences.

[00:31:03] Speaker 04:
Yeah, but so Mr. Johns, here's your problem.

[00:31:06] Speaker 04:
I mean, as you could tell from my questioning of the government, I'm certainly sympathetic to the way in which this case, from a procedural standpoint, was bobbled.

[00:31:16] Speaker 04:
And as far as the government's claim of the heartfelt opinion

[00:31:19] Speaker 04:
That is exactly what you want an agency to do when they've made a mistake.

[00:31:23] Speaker 04:
Yeah, but I want them to do that after the first mistake, not after the fifth mistake.

[00:31:26] Speaker 04:
You know, our military people deserve better.

[00:31:30] Speaker 04:
If Mr. Bailey was as bad in combat as the board was in deciding his case, God help our country.

[00:31:37] Speaker 04:
And I'm sure that's not the case.

[00:31:39] Speaker 04:
So in any event, having gotten off my pulpit now, I'm sympathetic to what Mr. Bailey went through.

[00:31:44] Speaker 04:
And I'm sort of a little bit ashamed at the process failures inherent in his case.

[00:31:49] Speaker 04:
But the bottom line is he had five drinks after taking drugs out on a hot day, bit somebody, grabbed somebody by the throat, threatened somebody.

[00:31:58] Speaker 04:
And the only consequence he suffered was, we're not going to promote you.

[00:32:03] Speaker 04:
At the end of the day,

[00:32:05] Speaker 04:
I got to be honest, forget about all law and everything else.

[00:32:09] Speaker 04:
Sounds kind of like it turned out fairly.

[00:32:11] Speaker 04:
I'm sorry because the man had an exemplary service record, but his behavior was not exemplary on that day.

[00:32:19] Speaker 04:
And the medical opinions are equivocal about what caused it.

[00:32:24] Speaker 04:
None of them discount the fact that he had five drinks and had taken two pills and that that could have, yes, an underlying seizure disorder could have contributed to his bad behavior.

[00:32:34] Speaker 04:
What so probably did all of these things?

[00:32:37] Speaker 04:
They probably exacerbated whatever underlying seizure disorder he had.

[00:32:42] Speaker 04:
And at the end of the day, the consequence that was reached, the consequences for his actions, it's hard for me to conclude that there was anything arbitrary and capricious about it.

[00:32:54] Speaker 04:
I'm sympathetic.

[00:32:55] Speaker 04:
I appreciate his service.

[00:32:57] Speaker 04:
I think he was badly treated in the process portion of all this.

[00:33:01] Speaker 04:
But at the end of the day, is it really arbitrary and capricious for them to have concluded he shouldn't be promoted and that all of his personal voluntary acts contributed to what caused him to behave the way he did?

[00:33:13] Speaker 04:
I'm having trouble concluding that was arbitrary and capricious.

[00:33:17] Speaker 04:
I just want to tell you exactly where I am.

[00:33:19] Speaker 04:
I'm putting it all out there for you.

[00:33:21] Speaker 00:
I appreciate that, Your Honor.

[00:33:22] Speaker 00:
And if I may just very briefly respond, the central nature of Mr. Bailey's argument was that the behavior certainly is not condonable and is egregious was not his voluntary action.

[00:33:39] Speaker 00:
And that it was not something that he was controlled by.

[00:33:44] Speaker 04:
But the drinking was.

[00:33:44] Speaker 04:
Alcoholics say,

[00:33:45] Speaker 04:
they're not responsible for the actions that occur afterwards because it's a sickness, right?

[00:33:50] Speaker 04:
You know, so the drinking wasn't voluntary, I'm an alcoholic.

[00:33:53] Speaker 04:
I'm not saying he's an alcoholic, let me be clear.

[00:33:55] Speaker 04:
He did have a condition and then chose to consume alcohol, chose to take in histamines, and those things undoubtedly exacerbated whatever he experienced.

[00:34:09] Speaker 04:
Thank you.

[00:34:09] Speaker 04:
I thank both counsel