[00:00:00] Speaker 00:
This is Case 20-1856, Nicely v. United States.

[00:00:06] Speaker 00:
Mr. Gittins, please proceed.

[00:00:09] Speaker 04:
Thank you, Your Honor.

[00:00:10] Speaker 04:
May it please the Court, Madam Chief Judge, and members of the Court.

[00:00:16] Speaker 04:
Under the well, contrary to the court below, contrary to the well-pleased complaint doctrine, plaintiff pleaded a cognizable Tucker Act claim supported by the Military Pay Act statute.

[00:00:30] Speaker 04:
Complaint one paragraph identifies the appellant's jurisdictional mandate statute and the claim under the Tucker Act.

[00:00:39] Speaker 04:
Paragraph 89 of the amended complaint in cap two sought judicial review of the BCNR decision.

[00:00:46] Speaker 02:
Mr. Consul, this is Judge Broward.

[00:00:49] Speaker 02:
Can you hear me?

[00:00:50] Speaker 02:
Yes, ma'am.

[00:00:52] Speaker 02:
OK.

[00:00:52] Speaker 02:
I'm not clear.

[00:00:54] Speaker 02:
Do you dispute that in order to decide

[00:00:57] Speaker 02:
this case, the Court of Federal Claims would have had to resolve the whistleblower issue that had come up in this district.

[00:01:06] Speaker 02:
How could they, can you allege the whistleblower stuff in this case?

[00:01:12] Speaker 04:
Well, when you speak to an I.D., the conversation is privileged.

[00:01:19] Speaker 04:
And the use of the privileged information at the BOI violated my client's rights

[00:01:27] Speaker 04:
to his privileged conversation.

[00:01:30] Speaker 04:
That's an evidentiary issue at the Board of Inquiry, which this court constantly... I don't remember, are you not alleging, do you not use the words whistleblower at all in any of the allegations?

[00:01:45] Speaker 02:
Is this not a... I don't believe, I don't believe in the verdict that there's a whistleblower at all.

[00:01:49] Speaker 02:
So there's no whistleblower allegation here?

[00:01:52] Speaker 03:
Well, you cited the MWPA multiple times in Count 2.

[00:01:58] Speaker 04:
You have to, because that's the regulation under which the regulation provides for confidential communication and privileged conversations with the EIG.

[00:02:09] Speaker 02:
So what you're alleging would come within that statutory program, the whistleblower act, right?

[00:02:18] Speaker 04:
Correct.

[00:02:19] Speaker 04:
Even if you are not a whistleblower, they conclude that you are not a whistleblower if you make a whistleblower complaint.

[00:02:27] Speaker 04:
The conversation still remains privileged.

[00:02:30] Speaker 04:
It never loses the privilege.

[00:02:33] Speaker 04:
And what happened in this case was my client made a complaint to the IG and to his chain commander and the

[00:02:47] Speaker 04:
Board of Inquiry, at numerous places between appendix 33 through 52, there was use of his per-list conversations with the IG, including the provision of a two-hour interview with the IG on an audio file provided to the VOI.

[00:03:09] Speaker 04:
So the issue really is, was that a proper use of evidence at the VOI?

[00:03:15] Speaker 04:
And if it wasn't,

[00:03:16] Speaker 04:
He was, his DOI was unfair.

[00:03:19] Speaker 04:
And there's a district court case, of course, it's not president here, but Schieffer versus Winter concluded that when improper evidence is considered, the case has to go back for remand to the court to have it reviewed to determine whether or not the use was

[00:03:45] Speaker 04:
the agency has to determine what use it can be made.

[00:03:53] Speaker 04:
But the problem is, when you have evidence that's been properly admitted before the DOI, you don't know how well that was used.

[00:04:05] Speaker 03:
But in our case, we knew that was a... So is it your position that regardless of the makeup of the board, that there was an

[00:04:13] Speaker 03:
inherent unfairness in the procedure that we can address under the Military Pay Act?

[00:04:20] Speaker 04:
Yes, ma'am.

[00:04:21] Speaker 04:
If there was consideration of improper evidence at the BOI, you can consider that.

[00:04:26] Speaker 04:
That happens all the time.

[00:04:28] Speaker 02:
The Court of Federal Claims does it all the time.

[00:04:37] Speaker 02:
Did you make a motion somewhere for them to not consider this evidence?

[00:04:42] Speaker 04:
Basically, at a BOI, they just note the objection.

[00:04:56] Speaker 04:
The problem is to file a deficiency letter, which my client did do.

[00:05:03] Speaker 02:
And that efficiency letter didn't allege whistleblowing, didn't like the whistleblower act, but just said that there was evidence that should not have been disclosed, and it was?

[00:05:13] Speaker 04:
Correct.

[00:05:14] Speaker 04:
The communications that were protected.

[00:05:23] Speaker 04:
But what's very interesting about this thing is that... I'm sorry.

[00:05:27] Speaker 02:
Sorry.

[00:05:27] Speaker 02:
This is just for us.

[00:05:28] Speaker 02:
Protected by what?

[00:05:30] Speaker 02:
Under what?

[00:05:31] Speaker 02:
under the Whistleblower Protection Act.

[00:05:34] Speaker 02:
So I'm a little confused.

[00:05:36] Speaker 02:
I thought you had completely disassociated yourself from the Whistleblower Protection Act.

[00:05:41] Speaker 02:
And now, let me finish my question, please.

[00:05:43] Speaker 00:
I'm sorry.

[00:05:43] Speaker 02:
I know we're on Zoom, and it's hard to tabulate.

[00:05:47] Speaker 02:
But if the allegation that you're saying you wanted to bring to the court of federal claim had only to do with they shouldn't have disclosed this because under the Whistleblower Act, they were not allowed to disclose it,

[00:06:00] Speaker 02:
How would there not need to be an adjudication under the administrative procedure set up under the statutory whistleblower act in order for this to be resolved?

[00:06:13] Speaker 02:
That's the whole point here, that the EFT can't have jurisdiction because there's jurisdiction.

[00:06:19] Speaker 02:
To make the determination you're asking for would have had to have been under the other.

[00:06:24] Speaker 04:
Once the communication is made, it is privileged.

[00:06:29] Speaker 04:
It doesn't matter whether the case moves down the road as a whistleblower case.

[00:06:35] Speaker 04:
It is a privileged community.

[00:06:36] Speaker 03:
Right, but it's only privileged because of the provisions of the Whistleblower Protection Act, correct?

[00:06:42] Speaker 03:
Correct?

[00:06:43] Speaker 03:
And so what you're asking is that there has to be a predicate finding that the act was violated by virtue of that disclosure before we can say that the evidence was not admissible in this proceeding, right?

[00:06:58] Speaker 04:
Right.

[00:06:59] Speaker 03:
So why doesn't that finding have to be made in the context of a whistleblower protection act claim?

[00:07:07] Speaker 04:
Well, I think you have to determine, first of all, is today's privilege communication.

[00:07:12] Speaker 04:
If you read the IG report, if you read the Navy advisory opinion, the BCNR, they never make a determination of whether it's an actual privilege communication.

[00:07:29] Speaker 04:
In fact, they say there was no indication that any action occurred as a result of what Mr. Nicely, what Mr. Nicely considered protected communication.

[00:07:38] Speaker 04:
Absolutely no evidence to suggest that any personal action because Nicely interacted with the IT.

[00:07:46] Speaker 04:
He made statements to the IT.

[00:07:49] Speaker 04:
The Navy and the Marine Corps made an intentional effort, not to say, determined a finding of fact whether it was a privilege communication.

[00:08:04] Speaker 04:
What privilege communication?

[00:08:05] Speaker 04:
It could never be disclosed, whether or not it was a whistleblower act, whether it was a conversation to his lawyer.

[00:08:13] Speaker 03:
What was different in that privileged communication than the admissions that he otherwise made and even wrote in the letter to the commanding general?

[00:08:28] Speaker 04:
I think they're largely the same.

[00:08:30] Speaker 04:
But by that time, they'd already been disclosed.

[00:08:35] Speaker 04:
But are you saying that... You have no choice but to...

[00:08:43] Speaker 02:
You want to move on before your time runs out to the second question involving the composition of this panel, of this board, or whatever?

[00:08:53] Speaker 02:
That's your honor.

[00:08:54] Speaker 02:
Is it your position that the statutory language is clear, or what is your legal position?

[00:09:02] Speaker 04:
Well, it does not define what a stability is.

[00:09:06] Speaker 04:
But when that statute was enacted,

[00:09:12] Speaker 04:
There was a case in the Supreme Court in which the Supreme Court plainly and clearly stated, retired officers are in the military service of the government.

[00:09:28] Speaker 04:
That, interestingly, was reconfirmed in the Court of Appeals for the Armed Forces on June 24, 2021, stating,

[00:09:41] Speaker 04:
For well over 100 years, Congress, the military, and the Supreme Court have all understood that retired members of all branches of the armed services who continue to receive pay are still part of the naval and land forces.

[00:09:58] Speaker 03:
And that was in June of this year?

[00:10:02] Speaker 04:
June of this year, Pagiani, slip opinion 20-2017,

[00:10:09] Speaker 04:
and 2-0-37-CAS June 24, 2021.

[00:10:15] Speaker 03:
Did you file a notice of supplemental authority?

[00:10:18] Speaker 04:
I did not.

[00:10:19] Speaker 04:
It happened so fast I didn't have time to even... I only learned about it a couple of days ago before the holiday.

[00:10:32] Speaker 00:
So you learned about it a couple of days ago, but you didn't disclose it to us, and you didn't disclose it to opposing counsel.

[00:10:38] Speaker 00:
Do you not see how that puts all of us at a significant disadvantage?

[00:10:42] Speaker 00:
I have people sometimes file those 28 jail letters on the morning of argument, because right now I have no idea what that Supreme Court case says, that you claim it says.

[00:10:53] Speaker 04:
Court of Appeals for the Armed Forces.

[00:10:55] Speaker 00:
Oh, okay.

[00:10:55] Speaker 00:
Court of Appeals for the Armed Forces.

[00:10:56] Speaker 00:
I have no idea what it says.

[00:10:58] Speaker 04:
Right.

[00:10:59] Speaker 04:
Well, I just read it to you, but I understand.

[00:11:02] Speaker 00:
Isn't it possible it has other language in it somewhere that maybe the other side would use to argue that it's different from this case for some reason?

[00:11:10] Speaker 04:
I'll file a supplemental citation after this court hearing.

[00:11:18] Speaker 02:
Well, maybe I misunderstood what you said.

[00:11:21] Speaker 02:
I didn't understand what you said to say they are not to be considered civilians.

[00:11:27] Speaker 02:
You just said they're still part of the military?

[00:11:30] Speaker 04:
If you're in the military, you're not really a civilian.

[00:11:36] Speaker 04:
The purpose of the Board for Correction of Military Records was to have civilians who were not military do the evaluation because the errors made by the military shouldn't be reviewed by the military.

[00:11:55] Speaker 04:
When you look at retired military officers, they are 20 years of service, they're obedient to orders, they follow the policies of their command, whether or not they agree with it.

[00:12:10] Speaker 04:
They're basically people who are still military, and they're not truly civilians.

[00:12:19] Speaker 03:
How do you deal with the fact that other places in Title X

[00:12:24] Speaker 03:
They talk about restrictions on who can serve in what capacity, and they talk about the extent to which someone who is retired can serve in certain purposes, like secretary of the Army, as long as they've been retired more than X number of years.

[00:12:51] Speaker 03:
a civilian and then they say, but if you're retired military, you're not really considered civilian until after a period of time.

[00:13:00] Speaker 03:
Why doesn't that actually support the conclusion that without the exclusion of that period of time, they would be considered a civilian?

[00:13:09] Speaker 04:
Well, I think the exclusion of time makes my point.

[00:13:14] Speaker 04:
It shows that military personnel right out of the military are not civilians for real.

[00:13:21] Speaker 04:
and they have to go that cooling period to become, to get away from the parochial system that they were in.

[00:13:30] Speaker 04:
And there is no definition for

[00:13:34] Speaker 04:
the military people, and those military people are coming out right out of the military, and they go to the board of corrections.

[00:13:40] Speaker 04:
Isn't the absence... It's like having a colonel one day, and now he's a civilian colonel, and he's working for the Marine Corps Board for Correctional and Naval Records.

[00:13:48] Speaker 03:
But isn't the absence of a cooling-off period in this statute actually indicative of the fact that perhaps Congress didn't feel a cooling-off period was necessary?

[00:13:57] Speaker 03:
We know Congress knew how to create a cooling-off period.

[00:14:05] Speaker 04:
Congress also knew that the retired people are members of the military, that they're members of the naval and land force.

[00:14:16] Speaker 03:
Well, but the statutes that I'm referring to, both with respect to service as secretary and with respect to service as judicial officers, says they have to be civilians and then says, and if you're

[00:14:32] Speaker 03:
retired from the military, you can't be in that position until after a certain period of time.

[00:14:39] Speaker 03:
So the implication would be that they would be civilians, but for the mandatory cooling off period.

[00:14:47] Speaker 04:
And there's no definition.

[00:14:50] Speaker 04:
Congress has not said something similar for the Board for Corrections in any way.

[00:14:54] Speaker 04:
They've left it undone.

[00:14:56] Speaker 04:
And you still have the purpose of the statute was

[00:15:02] Speaker 04:
to make sure that civilians look at the errors by the military.

[00:15:09] Speaker 02:
So how would you define civilian, someone who's not retired, not a retired military, right?

[00:15:15] Speaker 02:
Right.

[00:15:16] Speaker 02:
Never served in the military?

[00:15:18] Speaker 04:
It doesn't matter.

[00:15:19] Speaker 04:
They could have served.

[00:15:21] Speaker 04:
They're not 20-year guys.

[00:15:23] Speaker 04:
They're not retirees.

[00:15:25] Speaker 04:
They haven't been a three-year soldier.

[00:15:29] Speaker 04:
He's got a little bit of experience

[00:15:31] Speaker 04:
the service, but he's not a guy who's been inculcated to be a... And before the time, could I ask for your legal theory?

[00:15:41] Speaker 02:
So you think the statute is unambiguous and you win?

[00:15:47] Speaker 02:
Do you think that there's different O's, but because the board got it absolutely wrong?

[00:15:53] Speaker 02:
What's the legal theory here?

[00:15:55] Speaker 04:
Well, the legal theory

[00:16:00] Speaker 02:
Do you think the statute is unambiguous and the civilian can't mean the entire military?

[00:16:07] Speaker 04:
I think it is ambiguous and I think it hasn't been run through the rulemaking process.

[00:16:21] Speaker 04:
The Secretary of Defense hasn't made that finding because it's for all the services.

[00:16:30] Speaker 04:
There's no, there's no support for it, given the stat that the... So you're saying there's no government to do because there's nothing to defer to?

[00:16:43] Speaker 04:
Correct.

[00:16:44] Speaker 03:
If you're drawing a distinction between those who retire because they earn the retirement, subject to retirement, and someone, for instance, who's discharged before they reach retirement age or retirement qualifications.

[00:16:58] Speaker 04:
It's a different, it's a different...

[00:17:00] Speaker 04:
nature of service.

[00:17:02] Speaker 04:
Retirees are obedient to superior orders.

[00:17:06] Speaker 04:
They consider orders by career, military, personal, whether they agree with them or not.

[00:17:11] Speaker 04:
They subordinate their personnel judgment to judgment of superiors.

[00:17:15] Speaker 04:
They generally accept the face value of the policy.

[00:17:18] Speaker 04:
What are you reading from?

[00:17:19] Speaker 04:
I'm sorry.

[00:17:19] Speaker 02:
What are you reading from?

[00:17:21] Speaker 02:
Are you reading from some opinion that's been published or just your own?

[00:17:25] Speaker 04:
No, I'm reading from my experience in the 26 years

[00:17:28] Speaker 04:
They're my core officers.

[00:17:34] Speaker 00:
Okay.

[00:17:34] Speaker 00:
Why don't we hear from opposing counsel?

[00:17:38] Speaker 00:
Mr. Pixley?

[00:17:40] Speaker 04:
Thank you very much, Your Honor.

[00:17:45] Speaker 00:
Can you hear me, Mr. Pixley?

[00:17:47] Speaker 00:
Yes.

[00:17:50] Speaker 01:
In this action, in count two of the complaint, the appellant, Mr. Knightley, expressly

[00:17:57] Speaker 01:
alleged that the government violated the Military Whistleblower Protection Act, or the MWPA, by involuntarily separating him from the Marine Corps based upon alleged protective communications.

[00:18:10] Speaker 01:
The trial court appropriately dismissed that claim for lack of subject matter jurisdiction, and we respectfully request the court to affirm the trial court's dismissal.

[00:18:21] Speaker 01:
Now, in this matter, the Palin's counsel is not arguing that

[00:18:27] Speaker 01:
In fact, the trial court does not have jurisdiction to entertain such a claim under the MWPA.

[00:18:36] Speaker 01:
And certainly, the court's persuasive decision and the bias in Reina's decision, which were the case of the trial court cited as dismissal decision, state that clearly.

[00:18:48] Speaker 01:
So subject to the court's question, I will not focus upon as well-established principle.

[00:18:55] Speaker 01:
What appellate counsel seems to be arguing is, again, denying that the NWPA is in any way implicated here.

[00:19:06] Speaker 01:
And the court asked the question, which I believe is really appropriate, whether to decide this issue would necessarily require

[00:19:24] Speaker 01:
to address the factual underpinning of an MWPA claim would necessarily involve adjudication of the statute.

[00:19:36] Speaker 01:
And I think that's inescapable.

[00:19:39] Speaker 03:
Well, let me give you an analogy.

[00:19:40] Speaker 03:
So there are times in district court where evidence is inadmissible because it violates protections with respect to taping or wiretapping

[00:19:54] Speaker 03:
other personnel and so that it doesn't have to be in the context of an action under that statute for the court to conclude that because it violates those provisions, it has to be inadmissible in a different proceeding.

[00:20:09] Speaker 03:
Why wouldn't that be similar to this?

[00:20:13] Speaker 01:
Yes, ma'am.

[00:20:13] Speaker 01:
I think that may be true in some circumstances, but that's not what we have here.

[00:20:19] Speaker 01:
Beginning... What we have here, beginning with

[00:20:24] Speaker 01:
the appellant's initial appeal to the correction board.

[00:20:30] Speaker 01:
And I'm referring to page 296 of the appendix, where the appellant had alleged a further violation of the MWPA involving his separation.

[00:20:46] Speaker 01:
And that is expressly stated in text counts to his complaint.

[00:20:50] Speaker 01:
We went through this as alleged

[00:20:53] Speaker 01:
to the correction board as alleged to the court in the filing, in the initial papers that were filed.

[00:21:03] Speaker 01:
There's not an allegation of a procedural issue.

[00:21:07] Speaker 01:
There's a request for judicial review of the merits of an MWPA violation.

[00:21:15] Speaker 02:
Can you give us the citation and the appendix to that?

[00:21:17] Speaker 02:
Are you talking about the complaint?

[00:21:21] Speaker 02:
Yes, so I'm just- Is that the 69?

[00:21:26] Speaker 02:
Sorry?

[00:21:27] Speaker 02:
Is it Appendix 69?

[00:21:28] Speaker 02:
Is that what you're referring to?

[00:21:31] Speaker 01:
I'm first appealing to the application and the correction board, Mr. Keisling's application.

[00:21:39] Speaker 01:
And then I've reached 96 of the appendix.

[00:21:44] Speaker 01:
And then I'm fighting to do the complaint itself to the trial court at page 83, count two of the complaints

[00:21:51] Speaker 01:
And we bring this issue clearly numerous occasions.

[00:21:57] Speaker 01:
There's this sprainy, wanting to have the appellant's case in ETA 2, where there's a denial that they're bringing an MWPA violation.

[00:22:08] Speaker 01:
But then there's numerous references and clear statements that how to the header is plainest involuntary discharge

[00:22:18] Speaker 01:
What it was an adverse personnel action prohibited by the MWPA.

[00:22:22] Speaker 01:
That is seeking judicial review of.

[00:22:26] Speaker 00:
Mr. Pixley.

[00:22:28] Speaker 00:
Mr. Pixley, can you hear me?

[00:22:31] Speaker 00:
I'm sorry.

[00:22:32] Speaker 00:
Mr. Pixley, if we decide the MWPA issue in your favor, does that resolve this case in its entirety or do we still need to reach the civilian board question?

[00:22:49] Speaker 01:
I believe we need to reach the civilian board question because the trial court did in fact address additional matters not involving the MNEPA issue.

[00:23:01] Speaker 01:
For example, the challenge to the non-judicial punishment.

[00:23:04] Speaker 01:
There were a few other matters that the court... That's a separate count in the complaint?

[00:23:10] Speaker 02:
Sorry?

[00:23:11] Speaker 02:
A separate count in the complaint?

[00:23:13] Speaker 02:
That's correct.

[00:23:15] Speaker 03:
All right.

[00:23:15] Speaker 03:
On that score, let me address a couple of your arguments.

[00:23:19] Speaker 03:
A couple of them which I don't even understand.

[00:23:22] Speaker 03:
I mean, one you say is we should say that they are civilians because it's more convenient for the board to use them and, you know, they know what goes on and so we should just use them.

[00:23:39] Speaker 03:
I don't understand how that has any force in this kind of context.

[00:23:47] Speaker 03:
I mean, agencies want to do a lot of things because they think it would be more convenient, but that doesn't mean that the interpretation of the statute is appropriate.

[00:23:58] Speaker 01:
Yes, ma'am, if I understand the first question.

[00:24:00] Speaker 01:
I don't believe that we made that specific argument that it's convenient.

[00:24:09] Speaker 03:
Yeah, you did.

[00:24:09] Speaker 03:
You just said, it's better for us, it's more convenient, they know more stuff.

[00:24:14] Speaker 03:
Yes, you did make that argument.

[00:24:17] Speaker 01:
Right.

[00:24:20] Speaker 01:
Certainly, military members have a lot of experience.

[00:24:22] Speaker 01:
But let me address this specific question.

[00:24:26] Speaker 01:
Of course, section 10 USC, section 1552 does not define the term civilian.

[00:24:35] Speaker 01:
And under the Chevron analysis, which is what the trial court personally used, the Congress has not spoken directly.

[00:24:42] Speaker 01:
And the question is, do the court considers whether the agency's interpretation is based

[00:24:47] Speaker 01:
And that's about destruction of the staff.

[00:24:49] Speaker 02:
Can I interrupt you there?

[00:24:50] Speaker 02:
This is Judge Crouse.

[00:24:52] Speaker 02:
What are we deferring to under Chevron step two?

[00:24:56] Speaker 02:
There are no regulations published.

[00:25:00] Speaker 02:
There's an advisory opinion that was given to this board.

[00:25:04] Speaker 02:
Another board presumably might decide the question differently.

[00:25:10] Speaker 02:
So what exactly are we deferring to and why?

[00:25:15] Speaker 01:
Yes, so the starting point for the analysis, and I'll go through what the trial court did, which I think feels appropriate.

[00:25:24] Speaker 01:
First of all, the plain and ordinary meaning of the term civilian, based on dictionary damage, that one can look to, the term civilian is one who is not serving on active duty in the armed forces.

[00:25:39] Speaker 01:
And then one can look to

[00:25:43] Speaker 01:
Other sections of Title X, the term civilian is used.

[00:25:49] Speaker 03:
So did the court find an ambiguity or not?

[00:25:52] Speaker 01:
No, it's not ambiguous.

[00:25:55] Speaker 01:
It's simply not defined.

[00:25:57] Speaker 03:
Well, it would have to be ambiguous or there'd have to be some gap filling that was necessary in order for Chevron to even come into play.

[00:26:10] Speaker 01:
Yes, I would.

[00:26:11] Speaker 01:
I stand corrected.

[00:26:14] Speaker 01:
So in order to clarify the term in the analysis, one can look to a dictionary definition, plain and ordinary meaning.

[00:26:24] Speaker 01:
Number two, look elsewhere to the use of that term in another part of Title X of the statute.

[00:26:32] Speaker 02:
But why are we deferring to a board to determine what the ordinary meaning is?

[00:26:39] Speaker 02:
Isn't that a judicial function?

[00:26:41] Speaker 02:
And if there's a board hearing meaning to be had by looking at dictionaries, why is this a chevron deference issue?

[00:26:49] Speaker 01:
Yes.

[00:26:49] Speaker 01:
So since the Navy, Department of Defense and the Navy is charged with implementing Section 1552, in their interpretation, that should be afforded chevron deference.

[00:27:03] Speaker 01:
And there will be five.

[00:27:04] Speaker 02:
Is there an Army or Navy or Department of Defense interpretation?

[00:27:07] Speaker 02:
I mean, you think they wanted

[00:27:09] Speaker 02:
Since statutory definition applies to all the branches of the services, is there some DOD-wide interpretation of the word civilian that we're supposed to defer to?

[00:27:24] Speaker 01:
So, um, hold on.

[00:27:33] Speaker 01:
So, um, so there was, um, as the correction board

[00:27:39] Speaker 01:
So there was a, the Navy issued an advisory decision in a companion case called Scarcello that, where this issue was also raised.

[00:27:56] Speaker 01:
That did not end up being adjudicated at this point.

[00:28:04] Speaker 02:
So we give Chevron, you're not suggesting we give Chevron deference to and advise a Navy advisory opinion to some tribunal that never used it?

[00:28:17] Speaker 01:
Well, if I may answer the first question.

[00:28:20] Speaker 01:
So the Navy issued an advisory decision in Scars Valley.

[00:28:27] Speaker 01:
And the Department of Defense issued basically a email

[00:28:35] Speaker 01:
at page 338 of the appendix stating that this is, that they adopt this decision as the department said.

[00:28:45] Speaker 01:
And then the correction board used that advisory opinion in its remand decision stating that it wasn't in fact appropriate.

[00:28:55] Speaker 03:
So was that adopted by the secretary or was it simply, was that opinion adopted expressly by the secretary?

[00:29:07] Speaker 01:
It states here, if I may, on page 338, the Department of Defense Office of the General Counsel further reviewed the advisory committee issued by the Assistant Deputy Commandant of Manpower and Reserve Affairs in the case of former Major Mr. Scarstellar.

[00:29:27] Speaker 03:
Right.

[00:29:27] Speaker 03:
So it was never adopted by the Secretary.

[00:29:31] Speaker 02:
This email says the DOD General Counsel concurs in total.

[00:29:37] Speaker 02:
with the results, right?

[00:29:40] Speaker 02:
Is that as high as it goes?

[00:29:43] Speaker 01:
Yeah, I think from our position, we are persuaded that speaking for the secretary.

[00:29:50] Speaker 00:
Okay, so just to make sure we're on the same terms with regard to Chevron.

[00:29:54] Speaker 00:
First, you have to decide that the person who articulates the position, which is getting deference, was delegated by Congress the authority to administer the relevant statute.

[00:30:06] Speaker 00:
And you're saying that authority was delegated either to the Board of Corrections for Naval Records to implement this entire statute or alternatively to DOD's General Counsel who issued it by email.

[00:30:20] Speaker 00:
Is that correct?

[00:30:23] Speaker 00:
Are you arguing to me that Congress delegated the authority to administer this statute to either the Board of Corrections for Naval Records or to the Department of Defense's General Counsel?

[00:30:35] Speaker 00:
Okay, so wait, that's one problem.

[00:30:37] Speaker 00:
Let's go on to your next problem.

[00:30:39] Speaker 00:
Your next problem with Chevron deference, it seems to me, is the United States versus Meade, which we only give deference to adjudicatory decisions if Congress made it clear that a particular agency's adjudicative decisions were meant to speak with the force and effect of law.

[00:30:56] Speaker 00:
The only adjudicative decision you have here

[00:30:59] Speaker 00:
is the Board of Correction for Naval Records, but worse yet, now some email by some lady in the General Counsel's office.

[00:31:05] Speaker 00:
Which one of those two things do you think Congress made clear in the statute have forced an effective law?

[00:31:13] Speaker 01:
Ma'am, I think in this instance, I will state that the Department of Defense has rendered this interpretation, acting through the board.

[00:31:26] Speaker 00:
So you believe it's the Board.

[00:31:27] Speaker 00:
You believe the Board of Correction for Naval Records was delegated by Congress the authority to issue decisions administering the statute which were meant to have the force and effect of law under the Supreme Court's rubric laid out in the United States versus me.

[00:31:50] Speaker 01:
I have not read that decision, but yes, that's my understanding is,

[00:31:55] Speaker 02:
Well, let me ask you, if we hadn't had this DOD, let's assume the DOD general council hadn't weighed in.

[00:32:02] Speaker 02:
So this board made its decision based on its advisory opinion.

[00:32:06] Speaker 02:
Would other boards be free to reach a different conclusion, or is what they've decided here, again, leaving aside the general council's pronouncements, is what they decide in one case regarding their interpretation of a statute, is that binding on all other boards

[00:32:24] Speaker 02:
in other branches of the service, et cetera?

[00:32:35] Speaker 01:
I understand that conundrum here.

[00:32:38] Speaker 01:
I would say for an uniformed interpretation, it's not going to change if it's a Navy board or an Army board.

[00:32:44] Speaker 01:
So I'm going to answer that.

[00:32:46] Speaker 03:
I have one last point and another argument that I really can't wrap my brain around, and your argument that

[00:32:54] Speaker 03:
because Congress hasn't changed this statute over the years to be more specific, it must be legislating or failing to legislate against the backdrop of understanding what the board regularly does.

[00:33:12] Speaker 03:
Is that your position?

[00:33:16] Speaker 01:
Our position regarding is one

[00:33:20] Speaker 01:
on that question is one of really congressional acquiescence in a sense.

[00:33:24] Speaker 03:
Right.

[00:33:24] Speaker 03:
But congressional acquiescence generally involves acquiescence in a governing decision of the Supreme Court or a broad scale series of decisions that are essentially unanimous by courts of appeals.

[00:33:40] Speaker 03:
It's virtually never applicable in any other circumstance.

[00:33:48] Speaker 01:
Yes, ma'am.

[00:33:48] Speaker 01:
Obviously, this is a case of first impression that is raised judicially.

[00:33:55] Speaker 01:
What the specific point we were trying to make is that Congress is well aware that civilians or retired service members are serving on prejudice.

[00:34:07] Speaker 03:
How do we know that?

[00:34:09] Speaker 01:
This is stated in the revamp decision where since approximately 1996,

[00:34:18] Speaker 01:
The military reported to Congress and specifically addressed the composition of the correctional rules, as the Rehman decision stated.

[00:34:34] Speaker 03:
And so we're supposed to assume that legislators took those reports that I'm sure included a lot of other things and legislated against that backdrop, or failed to legislate against that backdrop.

[00:34:50] Speaker 01:
Yes.

[00:34:51] Speaker 01:
There was a finding that Congress was expressly made aware that the statute has been amended some 12 or 14 times since.

[00:35:00] Speaker 01:
And as the board stated, although the term civilian is not defined, Congress never... Let me ask you before... Mark, I know you're well beyond your time.

[00:35:11] Speaker 02:
Just let me ask you very briefly.

[00:35:12] Speaker 02:
Your friend on the other side cited some case that just came out a few days ago.

[00:35:18] Speaker 02:
I'm not even quite sure what tribunal at the end of the day that case was.

[00:35:22] Speaker 02:
Are you familiar with that case?

[00:35:26] Speaker 01:
No, ma'am.

[00:35:26] Speaker 01:
I think it was a case on the Court of Appeals for the Armed Forces.

[00:35:29] Speaker 01:
I'm not aware of that case.

[00:35:31] Speaker 01:
Okay.

[00:35:31] Speaker 01:
Thank you.

[00:35:32] Speaker 00:
All right.

[00:35:32] Speaker 00:
Thank you, Mr. Pixley.

[00:35:33] Speaker 00:
Mr. Gittin, do you have a little bit of rebuttal time?

[00:35:36] Speaker 00:
How much rebuttal time does he have?

[00:35:37] Speaker 00:
Michael?

[00:35:40] Speaker 02:
He's actually exceeded his time.

[00:35:42] Speaker 00:
Okay.

[00:35:42] Speaker 00:
Well, restore one minute of rebuttal time, please.

[00:35:50] Speaker 00:
You're muted, Mr. Gittins, you're muted.

[00:35:57] Speaker 00:
I still can't hear you, Mr. Gittins.

[00:35:59] Speaker 00:
Sorry, Your Honor.

[00:36:00] Speaker 00:
Now I hear you.

[00:36:02] Speaker 04:
I think the point has been made that the level at which the advisory opinion is the

[00:36:15] Speaker 04:
that the records correction board relied upon were not proper to act under Chevron.

[00:36:27] Speaker 04:
I said less well as a judge approached, but I think the point was made that you have functionaries making these decisions.

[00:36:45] Speaker 04:
The other thing I'd like to point out is in the military services, the IG, nobody made a determination whether or not the statements were privileged communications.

[00:37:02] Speaker 04:
And that was, I think it was a reason they did that to avoid what exactly we were making them point out, is that the government was improperly using

[00:37:14] Speaker 04:
Okay, thank you.

[00:37:18] Speaker 04:
I have some citations.

[00:37:23] Speaker 04:
It's very illuminating when I read them.

[00:37:28] Speaker 00:
Mr. Giddens, you don't have to submit it, but why don't you, again, just for our knowledge, repeat the citation to the one case that you said was just decided in June.

[00:37:37] Speaker 00:
That way we can look it up.

[00:37:39] Speaker 04:
Yes, ma'am.

[00:37:48] Speaker 04:
The United States versus Begani, B-E-G-A-N-I.

[00:37:55] Speaker 04:
The swift opinion number 20-2017, slash NA, between the Navy, and number 20-2337, slash NA, CAF, Court of Appeals for the Armed Forces,

[00:38:16] Speaker 04:
June 24, 2021.

[00:38:18] Speaker 00:
Okay.

[00:38:19] Speaker 00:
Thank you, Mr. Gittens and Mr. Pixley.

[00:38:21] Speaker 00:
This case is taken under submission.

[00:38:23] Speaker 04:
Thank you, Your Honor.

[00:38:25] Speaker 04:
Have a great day.