[00:00:00] Speaker 04:
Our next case is Daniel Bader versus the United States.

[00:00:04] Speaker 04:
2022-2203 is StoneCycle.

[00:00:28] Speaker 01:
May it please the court.

[00:00:30] Speaker 01:
Colonel Bader was promoted to the rank brigadier general after 25 years of exemplary service in the United States military.

[00:00:38] Speaker 01:
That rank was the pinnacle of his military career, a career that involved... Okay, I think we know all of that.

[00:00:45] Speaker 03:
Are you somehow suggesting that because he was allowed to have civilian employment that the regulation, the ethics regulation 2635-702 didn't apply to him?

[00:01:00] Speaker 01:
No, we're not suggesting that at all.

[00:01:02] Speaker 01:
Of course, there's a whole swath of conduct that the military could have prohibited under Section 26-35-702.

[00:01:08] Speaker 01:
The problem here is that the type of conduct that the board chose to penalize Colonel Bader for is the type of conduct that Congress specifically considered and decided to allow under Section 207.

[00:01:21] Speaker 01:
What?

[00:01:21] Speaker 03:
How did?

[00:01:22] Speaker 03:
Where?

[00:01:22] Speaker 03:
What?

[00:01:24] Speaker 01:
Section 207 is a very specific and detailed statute that Congress enacted and it deals precisely... You mean because it's not in 207, it can't be in regulations?

[00:01:35] Speaker 01:
It can.

[00:01:36] Speaker 01:
It's not the fact that 207 doesn't include all conduct, that anything that's not included in Section 207 can't be penalized as an ethics regulation.

[00:01:46] Speaker 01:
But the board can't construe the general sweeping ethics regulation to forbid a specific type of conduct that Congress has chosen to allow.

[00:02:01] Speaker 03:
There's no suggestion here that he's being sanctioned or denied recovery because he had civilian employment.

[00:02:11] Speaker 03:
It's the way he used the civilian employment, which the Air Force found was in violation of the regulation.

[00:02:22] Speaker 03:
So it's not sanctioning him for the civilian employment, it's sanctioning him for what he did in his civilian employment.

[00:02:30] Speaker 01:
I respectfully disagree with that, Your Honor.

[00:02:32] Speaker 01:
I think that if you look closely at the decisions of the board, the conduct that they punished Colonel Bader for was all conduct that boiled down to making representations to his military employer.

[00:02:45] Speaker 01:
while at the same time having a civilian employer.

[00:02:47] Speaker 01:
And that's exactly what Section 207 considers and allows.

[00:02:51] Speaker 03:
How does 207 allow that?

[00:02:54] Speaker 03:
I don't understand that.

[00:02:55] Speaker 01:
Well, 207 deals with the question.

[00:02:56] Speaker 03:
It sounds as though you're saying as though if he called a colonel who was a subordinate and said, I'm wearing my civilian hat, please grant this contract, that that would have been permissible.

[00:03:07] Speaker 03:
Would that be permissible or not permissible?

[00:03:10] Speaker 01:
If he was acting clearly when he was acting clearly in his role as a civilian and not invoking his rank, his authority, instructing, you know, invoking his power of his military office, then he was not using his rank.

[00:03:25] Speaker 01:
And if you look at what the board said about what it was doing on page 487 of the record, this is the Secretary of the Air Force General Counsel's opinion that the board relied on.

[00:03:35] Speaker 01:
They said,

[00:03:37] Speaker 01:
How did Colonel Bader use his office?

[00:03:40] Speaker 01:
It was, quote, by maintaining a continued official presence as a government officer in a workplace that he also utilized as a government contractor.

[00:03:50] Speaker 01:
It was engaging in his official capacity as a general officer with individuals with whom he also did business as a government contractor.

[00:03:59] Speaker 01:
This, according to the board, was use of office because it, quote, perpetuated his mantle of authority as a general.

[00:04:04] Speaker 03:
No, it's much more than that.

[00:04:05] Speaker 03:
They found he specifically helped draft the requirements for the contract.

[00:04:15] Speaker 03:
He asked people who were in a subordinate capacity to inquire about the contract award.

[00:04:24] Speaker 03:
It's much more than just being a civilian employee.

[00:04:28] Speaker 01:
But the problem that the board had with that kind of stuff, the things that you've mentioned, wasn't that he did it.

[00:04:34] Speaker 01:
They didn't say a general contractor can't propose language under other transaction authority for a statement of objections.

[00:04:42] Speaker 01:
They didn't say a general contractor can't propose an email, propose draft language for an email.

[00:04:47] Speaker 01:
The problem they had with what he did was that the officers with whom he interacted felt a degree of intimidation.

[00:04:55] Speaker 04:
Was that because of anything?

[00:04:57] Speaker 04:
C deals with a one-year cool-and-off period.

[00:05:01] Speaker 04:
That's not right.

[00:05:02] Speaker 04:
Am I correct in understanding that that issue was not being appealed or was conceded?

[00:05:10] Speaker 01:
That's correct.

[00:05:11] Speaker 01:
Colonel Bader has conceded the 207C, an inadvertent 207C violation.

[00:05:17] Speaker 03:
That itself was serious misconduct, right?

[00:05:22] Speaker 01:
I don't know how I would characterize the seriousness of the misconduct given the particular facts here, but what is undisputed is that it's not a basis for affirmance in this court.

[00:05:33] Speaker 01:
It was not the sole basis of the Secretary of the Air Force's decision, and the board has never specified that that could be the basis of the decision, even though Colonel Bader conceded that back in 2014, three years before the first correction board decision in this case.

[00:05:47] Speaker 02:
But to be clear, he conceded that he violated cooling off provisions multiple years, notwithstanding that he did have specific advice that he elected to receive that told him how to calculate the cooling off period.

[00:06:03] Speaker 01:
That is true.

[00:06:04] Speaker 01:
He concedes that the advice on that point was correct, and he did violate it.

[00:06:08] Speaker 01:
But that's just not the kind of the conduct that's at issue for the misuse of office violation that's at issue here.

[00:06:17] Speaker 01:
And to be frank, the regulations on that are so convoluted, it took me quite a long time to figure out exactly what he did that violated that regulation.

[00:06:25] Speaker 04:
And that's the violation of 2635702D, which relates to appearance.

[00:06:35] Speaker 04:
Appearance, right?

[00:06:37] Speaker 01:
That is what 702D says.

[00:06:39] Speaker 01:
I'm not sure I heard the question.

[00:06:41] Speaker 04:
That's what he was found to have violated, right?

[00:06:44] Speaker 01:
I don't think so.

[00:06:45] Speaker 01:
I think he was found to have violated Section 702A.

[00:06:47] Speaker 01:
D requires a fine.

[00:06:52] Speaker 03:
If we're referring over to the Inspector General's report, right, that's what lays this out.

[00:06:59] Speaker 03:
That's what the Corrections Board relied on.

[00:07:03] Speaker 03:
That's ultimately what the court of federal claims relied on, right?

[00:07:09] Speaker 01:
I think you have to look at a couple of different places to determine what he was found to have violated here.

[00:07:14] Speaker 01:
It's a little bit convoluted.

[00:07:16] Speaker 03:
I'm asking you, we're supposed to look at the Inspector General's report, right?

[00:07:21] Speaker 03:
Because that's what the Corrections Board relied on and then that's what was being reviewed by the Court of Federal Claims, right?

[00:07:29] Speaker 01:
So we're reviewing here the board's decisions, which happened down the road.

[00:07:34] Speaker 01:
One of the things that they relied on was the Inspector General's report.

[00:07:37] Speaker 01:
That's certainly where it started.

[00:07:38] Speaker 01:
And the Inspector General was only authorized to investigate a violation of Section 70.

[00:07:44] Speaker 03:
They relied on the appearance provision, right?

[00:07:47] Speaker 01:
They do discuss the appearance provision.

[00:07:51] Speaker 01:
They don't rely on it entirely in that they make no findings about whether he endeavored to avoid the appearance.

[00:08:00] Speaker 01:
And Section 702D requires this separate finding, which is that you have to cross-reference another section.

[00:08:06] Speaker 01:
I think it's 502, which requires a whole separate set of findings, which the Inspector General never looked at, never talked about, and never made any findings for.

[00:08:15] Speaker 01:
So the only basis, I think, that we can really look at here is Section 702A.

[00:08:23] Speaker 01:
And then again, that requires something different from what Section 207C prohibits.

[00:08:28] Speaker 01:
207C deals with virtually any kind of representation back to the government.

[00:08:35] Speaker 01:
The ethics regulation requires use of your office, and 702A requires use of your office with intent.

[00:08:43] Speaker 01:
So we can't look just to the Section 207C violation and say, because he violated that, there's also a violation of the general ethics regulation.

[00:08:54] Speaker 01:
That requires separate and different findings.

[00:08:57] Speaker 01:
And what did the board rely on to find those separate things?

[00:09:01] Speaker 01:
Exactly what Section 207 as a whole permits.

[00:09:05] Speaker 03:
permits?

[00:09:06] Speaker 03:
Yes.

[00:09:07] Speaker 03:
207 doesn't permit things, it prohibits things.

[00:09:11] Speaker 03:
It doesn't say that something is permitted.

[00:09:14] Speaker 01:
Well, I think when Congress speaks so specifically to an overarching issue, and it chooses to leave certain things out, then we have to respect Congress's judgment on that point.

[00:09:23] Speaker 03:
Congress created a situation where it authorized the President to adopt ethics regulations for federal employees, which was what the President did, and that's the regulation on which the Air Force relied.

[00:09:38] Speaker 03:
What's the matter with that?

[00:09:39] Speaker 03:
I mean, surely you can't say that

[00:09:42] Speaker 03:
because something's not in 207, it can't be in the regulations.

[00:09:49] Speaker 01:
The ethics regulations are the exercise of authority, as you said, under a general grant of authority to kind of explore or to think about what kinds of things would be unethical.

[00:10:03] Speaker 01:
What it isn't is an authorization for the agencies to determine that they know better than Congress when a part-time member of the National Guard may make representations back to his agency.

[00:10:16] Speaker 01:
The agencies cannot interpret this general regulation to override the judgment of Congress.

[00:10:22] Speaker 03:
But there's no judgment of Congress that things that aren't prohibited by 207 are permitted.

[00:10:28] Speaker 01:
If you look at 207 as a whole, it addresses many different contexts in which members of the National Guard may or may not make representations back to their agency.

[00:10:41] Speaker 01:
Under Section A1, they may not make representations ever for the duration of their life about certain topics.

[00:10:51] Speaker 01:
But Congress chose not to make that everything.

[00:10:56] Speaker 01:
They chose to only limit general representations back to your agency for the first year.

[00:11:03] Speaker 01:
When you look at the full scheme of this very detailed regulation, it is clear that Congress is allowing National Guard officers who cannot maintain full-time employment in the military flexibility in obtaining their civilian employment.

[00:11:18] Speaker 01:
They chose to allow it.

[00:11:20] Speaker 03:
They chose to allow them to write the specifications for the contract for which they're competing.

[00:11:25] Speaker 03:
They allowed them to ask government employees to inquire about the status of their contract?

[00:11:31] Speaker 03:
Really?

[00:11:33] Speaker 01:
To be clear, when Colonel Bader wrote this, sometimes in the board's decision and in the government's brief, it sounds as though Colonel Bader wrote the scope of the contract while in his military capacity.

[00:11:50] Speaker 01:
To be clear, it is undisputed and clear from the record that he didn't do that.

[00:11:54] Speaker 01:
He didn't sit down as Colonel Bader or then Brigadier General Bader and write the scope of a contract.

[00:12:00] Speaker 01:
He clearly operating and undisputedly operating in his civilian capacity.

[00:12:04] Speaker 03:
He found that he did, both in the Inspector General report and in the letter of reprimand.

[00:12:12] Speaker 01:
I don't think that that is true.

[00:12:13] Speaker 01:
I think that if you look closely at the Inspector General report and the board decision, the underlying finding, there are no findings that he in his Air Force role wrote this.

[00:12:23] Speaker 03:
No, no, he didn't do it in his Air Force role.

[00:12:25] Speaker 03:
He purported to do it in his civilian position, but he wrote the specifications.

[00:12:32] Speaker 01:
He wrote a draft.

[00:12:33] Speaker 01:
And again, this goes to another thing that the board chose to ignore, which is other transaction authority.

[00:12:39] Speaker 02:
That's what I wanted to ask you about.

[00:12:40] Speaker 02:
Thank you for getting to that.

[00:12:41] Speaker 02:
Where do you argue below that he had other transaction authority?

[00:12:49] Speaker 01:
This was raised repeatedly to the board below.

[00:12:55] Speaker 01:
It was one of his primary arguments to the board below, which the government does not dispute.

[00:13:05] Speaker 02:
Give me an example.

[00:13:06] Speaker 01:
Yeah, let me find it.

[00:13:14] Speaker 01:
Appendix page 167 to 68, page 200, 201, 102 to 103.

[00:13:21] Speaker 01:
Thank you.

[00:13:24] Speaker 01:
In fact, the inspector general recognized that he made this argument in the inspector general report.

[00:13:30] Speaker 01:
But rather than address the merits of the argument, the inspector general said that the fact that he was operating under other transaction authority was, quote, not dispositive and then moved on.

[00:13:41] Speaker 03:
So how can it be dispositive when the other transaction authority itself makes clear that other provisions of law restrict people?

[00:13:49] Speaker 03:
It's not permissive.

[00:13:50] Speaker 03:
It's not permissive in the sense that say you can engage in self-dealing.

[00:13:58] Speaker 01:
Colonel Bader was not found to have engaged in self-dealing here or to violate any of the many complicated procurement laws and regulations that exist.

[00:14:07] Speaker 01:
It was only a finding that he violated Section 2635-702.

[00:14:09] Speaker 03:
Well, the other transaction authority doesn't eliminate the regulation, right?

[00:14:18] Speaker 01:
Of course not.

[00:14:19] Speaker 01:
It doesn't eliminate the regulation, but it does allow for

[00:14:23] Speaker 01:
contractors to work collaboratively with their government counterparts to work together to create things like, specifically, a statement of objectives.

[00:14:31] Speaker 01:
And Colonel Bader submitted evidence to the board at Appendix 269, Note 6, in which the government itself has described other transaction authorities allowing exactly this kind of behavior.

[00:14:43] Speaker 03:
But instead of address Colonel Bader's argument that it would... What says that the other transaction authority allows this behavior?

[00:14:51] Speaker 01:
There's a report from the Congressional Research Institute discussing... What does it say that says you can do this?

[00:15:00] Speaker 03:
If you have supervisory authority over the people you're writing the specifications for, that's okay?

[00:15:11] Speaker 01:
It discusses the way that a contractor can interact with the government under other transaction authority.

[00:15:17] Speaker 01:
It doesn't discuss the specific relationship of the National Guard officer.

[00:15:21] Speaker 03:
It's not discussing this situation where he's

[00:15:24] Speaker 03:
reacting with his subordinates to write the specifications for the contract that he wants as a civilian.

[00:15:30] Speaker 03:
He's not addressing anything like that.

[00:15:32] Speaker 01:
And I suppose the board could have given the explanation that you just gave.

[00:15:39] Speaker 01:
But instead, the board chose to completely ignore this argument.

[00:15:42] Speaker 01:
And it's a significant argument that warranted its attention.

[00:15:45] Speaker 01:
If my time is short, I'd like to reserve what I have left.

[00:15:47] Speaker 04:
Your time isn't short.

[00:15:48] Speaker 04:
It's gone.

[00:15:50] Speaker 04:
We will give you a minute of rebuttal time.

[00:15:52] Speaker 04:
Thank you, Your Honor.

[00:16:06] Speaker 04:
This college, is it?

[00:16:08] Speaker 00:
Oh, it's Keenan, Your Honor.

[00:16:13] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:16:16] Speaker 00:
Public service is a public trust, and Colonel Bader violated the public's trust by misusing his public office for the private gain of himself and his employer, which violated generally applicable ethics standards that are found in CF5 CFR 2635.

[00:16:34] Speaker 00:
Colonel Bader's ethics violations were based on substantial evidence, specifically findings that he directly engaged two subordinate members of his military unit to send emails on his behalf for his employer, GMRE, in order to advance progress on the contract.

[00:16:52] Speaker 00:
This is a finding in the record and appendix, page 201.

[00:16:57] Speaker 00:
At 194, Colonel Bader was also found to have assisted National Guard Bureau staff in developing and writing a statement of objective and then also turning around and helping to draft the response to those statement of objectives.

[00:17:13] Speaker 00:
This was found in his rubber man letter at appendix page 205 as particularly egregious conduct.

[00:17:20] Speaker 00:
He was also found at appendix page 190 to have sent emails suggesting a particular contract vehicle with the intent to influence the AATC, the Reserve Training Command Center, leadership into awarding business for GMRE, which led to a $1.4 million contract for GMRE to support the AATC.

[00:17:46] Speaker 02:
I direct you counsel to page four of the reply brief which says even now the government does not identify any procurement law or regulation that Colonel Bader violated.

[00:17:58] Speaker 02:
What's your response to that?

[00:18:00] Speaker 00:
is that argument in response to the other transactions specifically.

[00:18:04] Speaker 00:
He was not found to have violated procurement laws, he was found to have violated ethics provisions, generally applicable ethics standards.

[00:18:15] Speaker 00:
And those were applicable whether or not

[00:18:21] Speaker 00:
he violated 207, which he did and conceded.

[00:18:24] Speaker 00:
Whether or not he violated procurement laws or even the Procurement Integrity Act, it is not necessary for the board to have found a violation of some other law or regulation in order to find a violation of 5 CFR 2635.

[00:18:41] Speaker 00:
Actions which may not violate anything else can be found to be a misuse of office, which is what

[00:18:48] Speaker 00:
the IG report found here.

[00:18:50] Speaker 02:
What about the OTA argument?

[00:18:52] Speaker 02:
Was that addressed by the board, or was it completely overlooked?

[00:18:57] Speaker 00:
Your Honor, I would dispute that it was completely overlooked.

[00:19:00] Speaker 00:
The IG report specifically rejected Colonel Bader's arguments on this point.

[00:19:07] Speaker 00:
And the board and its decisions

[00:19:13] Speaker 00:
upheld the findings of the IG report and specifically stated that it had reviewed the arguments made and that it found the findings of the IG to be supported.

[00:19:32] Speaker 00:
And those findings are in the record at

[00:19:39] Speaker 00:
appendix page 82.

[00:19:40] Speaker 00:
At appendix page 83 and 84, the board described the IG as being a thorough and valid investigation and upheld the findings of the IG.

[00:19:51] Speaker 00:
So while the board didn't explicitly address an argument as to other transaction authority, it's not required to under

[00:20:02] Speaker 00:
cost her in other cases to specifically address every single argument raised by the petitioner, but it did uphold the findings of the IG, which explicitly rejected Colonel Bader's arguments as to other transaction authority.

[00:20:17] Speaker 02:
You don't dispute that Colonel Bader raised the OTA arguments adequately below, do you?

[00:20:26] Speaker 00:
At the board, he raised them.

[00:20:27] Speaker 00:
He did not ever argue that the board failed to address the other transaction.

[00:20:34] Speaker 00:
authority argument.

[00:20:35] Speaker 00:
So both on reconsideration, he did not make this argument, in response to any of the advisory opinions, he did not make this argument, and before the trial court, he did not make this argument.

[00:20:47] Speaker 03:
Does the argument help him if he did make it?

[00:20:51] Speaker 00:
No, Your Honor.

[00:20:53] Speaker 00:
On the merits, as Your Honor stated, even if there's more flexibility when it comes to other transaction agreements, the rules as to other transaction agreements simply say that the FAR doesn't apply.

[00:21:11] Speaker 00:
This generally applicable ethics standard is not found in the FAR, and it would apply independent of any

[00:21:20] Speaker 00:
any FAR provisions which would not apply in the other transaction agreement context.

[00:21:25] Speaker 00:
As the IG found and as the Secretary of the Air Force found, it was problematic for Colonel Bader to have written the statement of objectives and then turned around and submitted a proposal or helped to write the proposal that was submitted by his private employer.

[00:21:41] Speaker 00:
This is, I will note, a competitive OTA of competitive other transaction.

[00:21:49] Speaker 00:
There may be other contexts in which the parties are collaboratively coming up with

[00:21:58] Speaker 00:
with the scope of the contract or something of that sort.

[00:22:01] Speaker 00:
But especially in the context of the competitive procurement, it was certainly reasonable for the Secretary of the Air Force and for the IG to conclude that it was problematic to write the same amount of objectives in the trigger.

[00:22:12] Speaker 03:
There's nothing in the other transaction authority that says a government employee can work for a contractor and help write the specifications, right?

[00:22:22] Speaker 00:
Correct.

[00:22:23] Speaker 00:
I agree with your honor that that is not explicitly

[00:22:27] Speaker 00:
allowed by the other transaction rules that simply say that the FAR does not apply in the context of other transaction authority.

[00:22:34] Speaker 00:
But again, this generally applicable ethics rule is not found in the FAR.

[00:22:40] Speaker 00:
And so although we do think that he has waived this argument by not raising it to the trial court on the merits, we would also argue that the flexibility allowed by other transaction rules wouldn't

[00:22:56] Speaker 00:
mitigate his violation of 2635 in any event.

[00:23:06] Speaker 00:
Counsel for the appellate has stated that the board found essentially a legal per se violation by Colonel Bader working both in his role as a contractor and in his role as a reservist.

[00:23:25] Speaker 00:
But the findings of the IG, which were relied on by the board, go well beyond the facts of him working in a private employment role.

[00:23:38] Speaker 00:
There are a couple of specific examples, which I've mentioned, directly engaging subordinate members of the military to send emails on his behalf.

[00:23:49] Speaker 00:
And as we've talked about, the writing of the statement of objectives and also writing the response, and then

[00:23:55] Speaker 00:
with the $1.4 million contract suggesting the contract vehicle, which was found to have done with the intent to influence military leadership into awarding business to GMRE.

[00:24:07] Speaker 00:
It was these specific actions which led the IG report to conclude that he had blurred his military and civilian status and used or permitted the use of his position, title, and authority in a manner intended to

[00:24:25] Speaker 00:
to induce the military to provide a benefit to himself and his employer.

[00:24:30] Speaker 00:
It is part of coronal leader's job to eliminate any confusion that might occur on behalf of the government employees he's working with.

[00:24:44] Speaker 02:
How do we, what's the authority for that?

[00:24:47] Speaker 02:
That that's part of his job?

[00:24:48] Speaker 00:
Well, the general officers are held to a somewhat higher standard.

[00:24:55] Speaker 00:
And that's found in 207 is a statute that only applies to the higher ranking officers.

[00:25:02] Speaker 00:
But the 207 prohibits any communications or representations back to his employer.

[00:25:13] Speaker 00:
And as he's stated, he's conceded a violation of 207C in this case.

[00:25:19] Speaker 00:
And while we would argue it's not necessary to have found a violation of 207 in order to find a violation of 2635, the legal argument that petitioner has raised that conduct that is permitted by 207 cannot form the basis of a 2635 violation really is irrelevant in this case because there is a conceded violation of 207.

[00:25:48] Speaker 00:
So I'm not sure I quite understand the legal argument that the petitioner or that the appellant has made here, because we do have a conceded violation of 207, but that is entirely separate from the generally applicable ethics violation of 2635.

[00:26:18] Speaker 00:
Unless you have further questions, we would ask for the court to affirm the trial court in this case and find that the board's decision was supported by substantial evidence.

[00:26:28] Speaker 04:
Thank you, counsel.

[00:26:31] Speaker 04:
Ms.

[00:26:32] Speaker 04:
Stone-Seifer, we'll give you two minutes for rebuttal.

[00:26:35] Speaker 01:
Thank you, Your Honor.

[00:26:40] Speaker 01:
The government cannot point to any point in the record where the board addressed other transaction authority.

[00:26:46] Speaker 01:
They say he was required to raise it at reconsideration, but that's not correct.

[00:26:51] Speaker 01:
And the court can look to its decision in Bosley to recognize that he was not required to raise it repeatedly before the board.

[00:26:58] Speaker 01:
The government may attempt to substitute an explanation now.

[00:27:04] Speaker 01:
They have attempted to do so, to explain that other transaction authority didn't permit this kind of conduct, but the board didn't say that.

[00:27:11] Speaker 01:
The board ignored this argument entirely, as the government cannot disagree.

[00:27:18] Speaker 01:
It's a basic tenet of administrative law that the board is required to explain itself, and that the government cannot substitute a decision of justification.

[00:27:27] Speaker 03:
It's not a basic tenet of administrative law that the agency has to address every single argument that's made to it.

[00:27:35] Speaker 01:
True, but this is a very significant argument.

[00:27:37] Speaker 01:
This goes to the heart of the issue.

[00:27:40] Speaker 01:
And this court has realized that when evidence or argument goes to the heart of the issue, and clearly we all think this is important here, then the board has to address it.

[00:27:50] Speaker 01:
And it can't come in now and substitute an explanation.

[00:27:53] Speaker 02:
Why can't we read the board's references to the IGs addressing the issue as sufficient here?

[00:27:58] Speaker 01:
they don't refer to the IG addressing the issue.

[00:28:01] Speaker 01:
They don't.

[00:28:01] Speaker 01:
Everything that the government said here was that they described the Inspector General's report generally as being comprehensive and well-reasoned.

[00:28:09] Speaker 01:
They don't refer to the Inspector General's discussion of OTA.

[00:28:13] Speaker 01:
They ignore OTA entirely.

[00:28:15] Speaker 03:
But they do approve the Inspector General report and rely on it generally.

[00:28:20] Speaker 01:
Yes, but if that were the rule, then

[00:28:23] Speaker 01:
there's no point to engaging in board review.

[00:28:27] Speaker 01:
If they can just point to the initial report and say, we think it was well-reasoned, that of course can't stand up to review under the arbitrary and capricious standard.

[00:28:37] Speaker 01:
And here there's just nothing there.

[00:28:41] Speaker 01:
The government also, to close, Colonel Bader and his family have devoted the better portions of their lives to service of this country and the military.

[00:28:51] Speaker 01:
And he deserved more than what the board provided.

[00:28:54] Speaker 01:
He deserved a well-reasoned decision that addressed each of his arguments and the important evidence in the record.

[00:29:01] Speaker 01:
The court should vacate.

[00:29:03] Speaker 04:
Thank you, counsel.

[00:29:04] Speaker 04:
The case is submitted.