[00:00:00] Speaker 03:
Flynn versus the Department of State, 2022-12-20.

[00:00:08] Speaker 03:
Mr. Lawler, nice to see you again.

[00:00:10] Speaker 04:
May I please court?

[00:00:14] Speaker 04:
Good morning again.

[00:00:15] Speaker 04:
Brian Lawler on behalf of the petitioner, Charles Flynn, in this case.

[00:00:19] Speaker 04:
I don't have anything new to add to the open.

[00:00:22] Speaker 02:
I presume you're... Can I just ask factually again?

[00:00:24] Speaker 02:
Absolutely.

[00:00:25] Speaker 02:
What were Mr. Flynn's orders?

[00:00:28] Speaker 04:
Mr. Flynn's orders were to the Pentagon, to a logistical support brigade.

[00:00:32] Speaker 04:
He's an attorney himself, and that was his.

[00:00:36] Speaker 04:
So under an O'Farrell analysis, and say, sure, I mean, that's logistical support is obviously support of the contingency operation under Adams, maybe not.

[00:00:49] Speaker 04:
By the way, his orders, there are, Judge Stark, you asked earlier about do the orders say in support of, and I think Mr. Marshall answered that they often don't.

[00:01:00] Speaker 04:
What's interesting under the Adams analysis is that the top line of the orders after the headers, it would say active duty operational supporter, ADOS, which is a very common type of order, dash CO, or contingency operation.

[00:01:13] Speaker 04:
So we would think if there's a factual analysis that needs to be done,

[00:01:17] Speaker 04:
You're good there.

[00:01:18] Speaker 04:
Active duty, operational support, dash contingency operation.

[00:01:21] Speaker 04:
But then the next line almost always reads in support of blank operation.

[00:01:26] Speaker 04:
Well, that's going to be fine under referral, but now we get back to Adam says, we have to be directly called.

[00:01:32] Speaker 04:
But then the orders read in support of.

[00:01:34] Speaker 04:
there can be some inconsistent reading there.

[00:01:38] Speaker 04:
And I would say, as soon as you see the words contingency operations were good, they're on the orders.

[00:01:42] Speaker 04:
It solves the Adams analysis, but then it further says... Well, wait, is that actually the case in Mr. Flynn's?

[00:01:48] Speaker 04:
I don't know the answer to that, Your Honor.

[00:01:49] Speaker 02:
Well, see, that's why I was asking.

[00:01:51] Speaker 02:
It seems like that would have been a bigger focus of the briefs if

[00:01:56] Speaker 02:
if he'd actually been called in support of a contingent coverage.

[00:01:59] Speaker 04:
We didn't put that into the record below because, again, his case came before Adams.

[00:02:06] Speaker 02:
I mean, you didn't even put in his orders below?

[00:02:11] Speaker 04:
I don't know that we actually put the... I'd have to go back and look at the agency file here, but I'm certain we alluded to or pled when he was on orders, what type of orders he was on.

[00:02:22] Speaker 02:
I mean, that seems like a bit of a gap if what we're looking at is to determine whether his orders fall into any of these categories to not even have his orders to look at.

[00:02:34] Speaker 04:
Yeah, that's not, I understand what your honest question is, that's not exactly why we're here.

[00:02:43] Speaker 02:
I mean, even if your argument prevails, don't you have to show that his orders qualify under 13b and 1538, 5538?

[00:02:57] Speaker 04:
With the state of affairs with Adams controlling, yes, we would.

[00:03:01] Speaker 04:
Prior to Adams, no, we would not.

[00:03:03] Speaker 04:
And again, I go back to the progeny of all the MSPB cases I had in the differential pay world and the 22-day additional leave world, which was governed by O'Farrell.

[00:03:15] Speaker 02:
All those AJs took the- Even the 13B, even if we're looking at it as a list, it still has things that are called to duty under any of these statutes.

[00:03:26] Speaker 02:
You're just saying, well, you can just presume, because he was called to duty, that that's what his orders said.

[00:03:32] Speaker 04:
I understand your honest question now.

[00:03:34] Speaker 02:
I would think you would have to, at a bare minimum, put in to call it a duty.

[00:03:38] Speaker 04:
Correct.

[00:03:39] Speaker 04:
And showing that it's 12301D, after that, we didn't really care what they said, as long as it was a provision of law.

[00:03:44] Speaker 02:
It would be in the record.

[00:03:45] Speaker 04:
It absolutely is.

[00:03:46] Speaker 02:
And so it should be in the record here.

[00:03:48] Speaker 02:
And you should be able to tell me,

[00:03:50] Speaker 02:
what the record says about whether it's a contingency operation or not.

[00:03:53] Speaker 04:
Well, sir, now we get that this is what my point earlier was about this kind of circular logic of this argument.

[00:03:58] Speaker 02:
No, I know you think you don't have to show it.

[00:04:01] Speaker 02:
But I'm asking you, the orders should be in the record.

[00:04:05] Speaker 02:
Correct.

[00:04:06] Speaker 02:
And if the record's there, you should know what that record says and be able to answer the question about what that says, even if you don't think it matters.

[00:04:14] Speaker 04:
Right.

[00:04:15] Speaker 04:
And what I can say is that they were 12301D.

[00:04:17] Speaker 04:
And based on this court's analysis and the definition of contingency operation under O'Farrell, that's a provision of law.

[00:04:22] Speaker 04:
And we're in a national emergency.

[00:04:25] Speaker 04:
And that's where we get stuck.

[00:04:26] Speaker 04:
And I say circular logic with dog chasing his tail.

[00:04:29] Speaker 04:
But we keep coming back to that definition.

[00:04:33] Speaker 04:
But that's what Mr. Flynn is doing.

[00:04:34] Speaker 01:
Do you have the appendix with you?

[00:04:36] Speaker 01:
Because I'm looking at appendix 138.

[00:04:39] Speaker 01:
And I'm new to all this.

[00:04:40] Speaker 01:
But that looks like what I would have thought were orders.

[00:04:42] Speaker 04:
I don't know the page reference, Your Honor.

[00:04:45] Speaker 01:
Do you have it?

[00:04:47] Speaker 04:
I do, but it's electronic.

[00:04:48] Speaker 04:
I didn't bring a stack of it.

[00:04:51] Speaker 02:
If you bring an electronic copy, you should be able to use it quickly.

[00:04:56] Speaker 04:
It's in my laptop, Your Honor.

[00:04:57] Speaker 04:
I just don't know if it's going to be.

[00:04:59] Speaker 02:
I mean, for future reference, you need to have something that you can facilitate quick access to the appendix when we have questions about it.

[00:05:08] Speaker 04:
Understood, Your Honor.

[00:05:10] Speaker 04:
If page 138, if it does

[00:05:12] Speaker 01:
it says you are it's got his friends name on it you are ordered to active duty for operational support under provision of section twelve three oh one t set sound like what as a group referred to uh... in the last case you candidly acknowledge i think that under adams uh... mister fleeciano cannot prevail is that correct i don't know that i can see that mister fleeciano was

[00:05:37] Speaker 04:
driving around on Coast Guard cutters chasing drug smugglers and human smugglers, I think that absolutely would fit the definition of continuous jailbreak.

[00:05:43] Speaker 01:
I guess I misunderstood what I thought was a clear concession.

[00:05:45] Speaker 01:
But let's talk about Mr. Flynn now.

[00:05:48] Speaker 01:
Can Mr. Flynn prevail if we're bound by Adams?

[00:05:57] Speaker 03:
Flynn was decided after Adams.

[00:06:00] Speaker 04:
Yes, sir.

[00:06:01] Speaker 04:
Yes.

[00:06:04] Speaker 04:
No, if this court follows Adams, then no, probably Mr. Flynn does not control, which is why we want to get Adams reversed.

[00:06:13] Speaker 04:
So again, under Rule 35 for Mr. Flynn, we would respectfully request a referral to Yonvonk.

[00:06:19] Speaker 04:
I don't have anything further for Mr. Flynn, Your Honor.

[00:06:23] Speaker 03:
Thank you, Mr. Lawler, Ms.

[00:06:25] Speaker 03:
Jansen.

[00:06:32] Speaker 00:
Good morning.

[00:06:32] Speaker 00:
Again, Your Honors, and may it please the Court, I will just refer to the parts of the record where Mr. Flynn's service is described.

[00:06:43] Speaker 00:
We've cited it as Appendix 137, which I believe carries over to 138, and that's where the duties are described as being mobilized for active duty operational support, support of

[00:06:53] Speaker 00:
Operation Enduring Freedom, Contracting Support Brigade.

[00:06:58] Speaker 00:
And subsequent to that, Mr. Flynn actually submitted a affidavit at the board where he described his duties that he performed at the Pentagon.

[00:07:08] Speaker 00:
They are long and quite extensive, but I have summarized them as providing legal support on a range of operational issues, logistics, personnel, funding, budget, and further of the office's mission, and that office was

[00:07:23] Speaker 00:
the support brigade in the Pentagon.

[00:07:27] Speaker 00:
So I believe there was a sufficient factual record to make a connection between the duties Mr. Flynn performed and the ongoing emergency if that were required, but that showing was not made.

[00:07:41] Speaker 00:
And we do believe that there is a factual question that could come up

[00:07:48] Speaker 00:
when a reservist is called to duty under 12301D, and a reservist could certainly make that connection showing how voluntary orders would entitle the reservist to differential pay.

[00:08:02] Speaker 00:
And so I believe the example that Mr. Flynn's counsel gave of two service members being in the same ship, in the same cockpit as part of the same operational mission, one giving

[00:08:14] Speaker 00:
differential pay and the other not.

[00:08:15] Speaker 00:
I don't believe that's a situation that would arise, because there it's pretty clear that those two service members would be in the same operation.

[00:08:22] Speaker 00:
And if that operation is, in fact, a contingency operation, then under the statute, differential pay would be permitted.

[00:08:34] Speaker 00:
So I have nothing further to add here unless there are any questions from the panel.

[00:08:38] Speaker 03:
Thank you, counsel.

[00:08:40] Speaker 03:
Mr. Lawler, do you have any rebuttal?

[00:08:43] Speaker 04:
I don't have any contender.

[00:08:44] Speaker 03:
All right.

[00:08:45] Speaker 03:
Thank you very much.

[00:08:45] Speaker 03:
The case is submitted.