[00:00:01] Speaker 05: state. [00:00:02] Speaker 05: I'll be ready whenever you are. [00:00:03] Speaker 04: Thank you. [00:00:05] Speaker 04: May it please the court, Alan Arthur Short-Hit Rod of Tully-Renke PLLC on behalf of the plaintiff appellant, Malcolm Wade Pipes, who's sitting at counsel's table as a member of the bar. [00:00:16] Speaker 04: We requested 15 minutes for argument. [00:00:20] Speaker 04: I don't think we're going to need all that time, because this is the second time this case is before the court with two judges from the same panel as previously in 2019. [00:00:30] Speaker 04: The salient facts are not in dispute. [00:00:34] Speaker 04: In 2019, this week. [00:00:35] Speaker 05: I think we know the facts, so we can make this even quicker if that's where you want to go. [00:00:39] Speaker 05: Where I want to ask you is, what is your position that this pre-authorization is not required in these circumstances, or that there was a pre-authorization that was required, or what? [00:00:53] Speaker 04: So a couple of points with regard to the authorization. [00:00:57] Speaker 04: We'll accept that's a narrow issue here, is whether there was authorization. [00:01:01] Speaker 04: And you agree that's the issue. [00:01:02] Speaker 04: We agree that's the issue. [00:01:04] Speaker 04: Our argument, however, is that the authorization was incumbent on the lawful order to engage in the SBIP, in the self-paced fitness improvement plan. [00:01:15] Speaker 04: The sui generis nature of ordering the plaintiff appellant here to engage in that program and him actually engaging in that program was the authorization that was necessary. [00:01:27] Speaker 05: The other aspects where we believe the record- But just on that point, I mean, that really is your position that anytime someone's ordered, that either obviates the need for pre-authorization under the requirements or satisfies the need for a pre-authorization, any order whatsoever? [00:01:44] Speaker 04: Not any order. [00:01:45] Speaker 04: But the order here? [00:01:47] Speaker 04: The sui generis aspect of the order here. [00:01:49] Speaker 01: And what order are we talking about? [00:01:52] Speaker 04: So going back to the facts, [00:01:55] Speaker 04: Mr. Pipes here was not able to pass the physical exam. [00:01:59] Speaker 04: Yeah, I know that. [00:02:00] Speaker 04: But I mean, what's the order? [00:02:02] Speaker 04: The order was him to engage in the fitness program, the remedial fitness program, which he did engage in. [00:02:08] Speaker 01: Did you bring the record with you? [00:02:09] Speaker 01: Yes. [00:02:10] Speaker 01: Would you look at page 150? [00:02:13] Speaker 01: It's attachment 18 to the SFIP regulation. [00:02:24] Speaker 01: It's the memorandum for entry into a SFIP program. [00:02:29] Speaker 01: Do we have anything in the record that says that that's the order you're talking about? [00:02:34] Speaker 04: No. [00:02:35] Speaker 04: I don't think it's in dispute that he was lawfully ordered to engage in the SFIP. [00:02:39] Speaker 04: How was he ordered? [00:02:42] Speaker 01: Verbally? [00:02:43] Speaker 04: Was there a piece of paper? [00:02:45] Speaker 04: It was verbally and in writing. [00:02:48] Speaker 01: What kind of writing? [00:02:51] Speaker 01: So the record supports... This is the sort of thing that initiates SFIP, right? [00:02:59] Speaker 01: Attachment 18? [00:03:01] Speaker 04: This is a sample. [00:03:03] Speaker 04: Correct. [00:03:04] Speaker 04: This is a sample attachment that's in the AFI that would have sufficed to place him in the SFIP program. [00:03:11] Speaker 04: But his placement in the SFIP program is not in dispute here. [00:03:17] Speaker 01: No, I know he was placed in it. [00:03:18] Speaker 01: That's correct. [00:03:21] Speaker 04: Right. [00:03:21] Speaker 04: So the issue, respectfully, is whether there was an additional layer that was required for him to receive authorization while... And the AFMAN says it is, right? [00:03:33] Speaker 04: Well, we don't believe the AFMAN applies. [00:03:36] Speaker 01: OK. [00:03:36] Speaker 01: So what happens if we disagree with you on that point? [00:03:40] Speaker 01: AFMAN does apply. [00:03:41] Speaker 04: Then there's sections of the AFMAN that indicates that you could be on IDT without pay and without points. [00:03:50] Speaker 04: that we respectfully would say applies to this. [00:03:53] Speaker 01: But if AFMAN applies, it requires pre-authorization. [00:03:57] Speaker 04: The AFMAN does discuss IDT authorization. [00:04:00] Speaker 04: It requires it. [00:04:03] Speaker 04: It requires it under the AFMAN. [00:04:05] Speaker 01: Yes, and I'm saying if we decide AFMAN applies, I didn't see any room for your client to succeed. [00:04:11] Speaker 04: Yes, but the AFMAN applies to receive pay, you need at least four hours. [00:04:16] Speaker 04: To receive points, you need at least two hours. [00:04:18] Speaker 04: The record here supports through his affidavit in the record that he was not engaging for two hours or four hours. [00:04:26] Speaker 04: His participation in the exercise was under an hour. [00:04:29] Speaker 04: There are examples. [00:04:30] Speaker 04: It's actually 2.54 in the AFMAN that talks about all these additional aspects where there's no points provided. [00:04:37] Speaker 04: There's no pay provided. [00:04:39] Speaker 04: One of which is travel. [00:04:41] Speaker 04: Well, it says whether without pay. [00:04:43] Speaker 04: Yes. [00:04:44] Speaker 04: And there's a section there that also says without points. [00:04:47] Speaker 04: And that's under 2.5.4, which is one of these. [00:04:50] Speaker 01: The opinion below worked through all of that and concluded that the key question was whether or not there's any evidence of pre-authorization. [00:04:59] Speaker 01: And your theory is that there's sort of an initial authorization that lasts for three years. [00:05:08] Speaker 01: And the system doesn't contemplate that. [00:05:11] Speaker 01: It contemplates that every time you go and do an SFIP, you're supposed to go in and say, I'm going to do my SFIP tomorrow afternoon at 3, I'm going to do this, this, and this. [00:05:21] Speaker 01: And the authorizer says, OK. [00:05:23] Speaker 01: That's the pre-authorization. [00:05:26] Speaker 04: But it's not clear exactly the form of the pre-authorization that is required. [00:05:31] Speaker 01: The government isn't any evidence, according to the record that we're reviewing, of any kind of pre-authorization. [00:05:38] Speaker 04: Well, I would respectfully state that there are statements in the record that say that he was authorized to engage and participate in the SFIP. [00:05:48] Speaker 01: That's from fellow officers after the fact. [00:05:52] Speaker 04: One of which is a commander during the relevant period of time up until 2005. [00:05:57] Speaker 04: While the injury did occur in 2006, his enrollment in the SFIP happened at least twice that we know of in 2004 and 2005. [00:06:07] Speaker 04: So I agree with you. [00:06:09] Speaker 01: It was a rejection of that evidence clear error. [00:06:11] Speaker 01: The legal advisors for the board, the board, and then the court of claims wasn't impressed by the anecdotal, as they viewed it, commentary from colleagues saying, well, he was authorized. [00:06:29] Speaker 01: So it struck me that the problem was [00:06:33] Speaker 01: the absence of any evidence here showing, given the fact that this is a hybrid or an odd kind of an organization, because everyone has been willing to assume in this case that there was an actual order, as opposed to nothing more than Attachment 18. [00:06:51] Speaker 01: Because Attachment 18 doesn't look like an order. [00:06:54] Speaker 01: It looks like an acknowledgement of a voluntary act taken by a reservist. [00:07:02] Speaker 05: Okay. [00:07:03] Speaker 05: Just to go back to the basics, just two points. [00:07:06] Speaker 05: So I can make sure I understand your argument. [00:07:08] Speaker 05: The first is that you're saying an order satisfies any requirement for authorization because it's an order. [00:07:15] Speaker 05: So the two, it's sufficient. [00:07:16] Speaker 05: Is that one of your points? [00:07:18] Speaker 04: No, respectfully, it's not any order. [00:07:21] Speaker 04: It's this particular sui generis order. [00:07:24] Speaker 04: Designed for Mr. Pipes, specifically. [00:07:28] Speaker 05: And your second argument is even if we don't buy that, that the statute somehow you parse the statute to say that the pre-authorization does not apply to your client because he was not getting pay your points. [00:07:44] Speaker 05: The government's response that I think was what the CAFC said and the board was they relied on 10 U.S.C. [00:07:53] Speaker 05: 12315A which says duty without pay shall be considered for all purposes as if it were duty with pay, which is the response to your argument that because it was voluntary that doesn't mean it's not included. [00:08:09] Speaker 05: I didn't see any real significant response to that in the gray brief. [00:08:13] Speaker 05: Do you have one? [00:08:14] Speaker 04: Our response to that is the relevant statute here of whether or not he was on inactive duty training is defined under Title X, Section 101D7. [00:08:25] Speaker 04: That discusses specifically under B, D7B, that IDT means special additional duties authorized for reserves by an authority designated by the secretary concerned and performed by them on a voluntary basis, which voluntary basis we argued was without pay or without points. [00:08:44] Speaker 04: in connection with the prescribed training or maintenance activities of the units to which they are assigned. [00:08:49] Speaker 04: That definition is tracked in the AFI, the Air Force Instruction 36-2910, also in the record. [00:08:57] Speaker 04: That definition is also tracked in the DOD financial management regulations in the record. [00:09:04] Speaker 04: It's also tracked in the DOD instruction at 4515.16. [00:09:07] Speaker 01: That section of the statute requires authorization. [00:09:12] Speaker 01: It says right in front, [00:09:14] Speaker 01: special duties authorized. [00:09:16] Speaker 01: Authorized, yes. [00:09:17] Speaker 01: So even if AFMAN doesn't apply, the statute requires authorization. [00:09:25] Speaker 01: Yes. [00:09:25] Speaker 01: And so that seems to me to turn your case back to the question of whether this particular order, of which we don't have a copy, that he was ordered to do this constitutes a sufficient authorization, right? [00:09:45] Speaker 01: And the statute requires an authorization. [00:09:47] Speaker 01: So we can, the half-man argument falls away. [00:09:53] Speaker 04: So we agree. [00:09:54] Speaker 04: There needs to be authorization. [00:09:56] Speaker 04: Our arguments with regard to authorization was the nature of the order to participate. [00:10:01] Speaker 01: OK. [00:10:01] Speaker 01: That's my point, as I think your case actually boils right down to that. [00:10:04] Speaker 01: There's one argument. [00:10:07] Speaker 01: Because the second point that the presiding judge points out trails off after half-man and whether half-man is going to apply. [00:10:14] Speaker 04: And the AFBAN and the AFI and the DODI, they're all interpretations, arguably, of the statute. [00:10:21] Speaker 04: The statute, we believe, is clear. [00:10:24] Speaker 04: Obviously, the court can defer if it likes to. [00:10:26] Speaker 01: I just wanted to try, for our benefit, to dial the case right down to the single point that we have to decide, which is in the circumstances of this case, the order which we determined the first time around was not unlawful. [00:10:45] Speaker 01: when they order to him to participate over a three-year period in a SIF, whether that was sufficient authorization to satisfy the statute, right? [00:10:57] Speaker 04: And while we understand that this panel's, or the 2019 panel's opinion was limited to that holding as to whether he was lawfully... Right, but you see, like your case may actually mean, and possibly a little better, [00:11:12] Speaker 01: given the sui generis nature of the case, which everybody agrees going back a long ways, and the whole question about he was ordered to do it. [00:11:21] Speaker 01: Well, if he didn't do it, could he be punished under the military code? [00:11:25] Speaker 01: And it just doesn't feel right, none of that. [00:11:29] Speaker 01: Maybe your argument really is that this court should look at entire circumstances of the case and try to decide what authorization means under subpar paragraph B. [00:11:42] Speaker 04: I think certainly that's part of it, but in the opinion... This wasn't argued as an injustice case. [00:11:50] Speaker 01: I mean, Sarakowski, I can't pronounce it there, the case that you raised is basically an injustice case. [00:11:57] Speaker 01: So it sounds like it's almost not on all fours, but very close to what you have here. [00:12:02] Speaker 04: There is a big distinction in that case. [00:12:04] Speaker 04: Obviously, that was under the active duty of 30 days or more for the time or purposes. [00:12:08] Speaker 01: I understand that. [00:12:10] Speaker 01: The atmospherics of the case feel the same. [00:12:13] Speaker 01: But it was treated as an injustice case. [00:12:16] Speaker 01: And I don't think there's any room for us to crank open injustice that you haven't asked us to. [00:12:24] Speaker 00: Can I try to understand one part of your argument that I think I heard you say today? [00:12:29] Speaker 00: And is it that your position is not that any and every SFIP order would constitute pre-authorization for IDT status. [00:12:42] Speaker 00: It's more that there's something unique about Pypes' SFIP order that inside of [00:12:52] Speaker 00: that order, there's something baked in for a pre-authorization of IDT. [00:12:57] Speaker 00: Is that your position? [00:12:58] Speaker 04: That's the position in a sense of the SFIP that was designed specifically for Mr. Pipes was to exercise five times per week, while the instruction at the time only required three times per week. [00:13:12] Speaker 00: In addition... Okay, so if that's your argument, what is it about the nature of this particular SFIP order that we don't have in front of us that would make us believe, okay, this one is special, this one is unique, this one not only is an order to do this [00:13:34] Speaker 00: self-fitness program, but it's also converting someone from civilian status to IDT status. [00:13:41] Speaker 04: I think what is unique about that is the lack of payer points, specifically to the SFIP order. [00:13:49] Speaker 04: If that was a requirement to be on IDT, he was specifically told you cannot receive payer points. [00:13:56] Speaker 04: He was specifically told you cannot submit a Form 40A, which we [00:14:02] Speaker 04: You know that's been resolved. [00:14:03] Speaker 00: Is there any regulation or guidance doctrine anywhere that says that you can be on IDT with no pay and with no points? [00:14:16] Speaker 04: Well, the AFI talks about without pay, specifically. [00:14:20] Speaker 00: Right. [00:14:20] Speaker 00: But there's nothing anywhere that I'm aware of that's any kind of source that says, and by the way, there's another subcategory of IDT. [00:14:29] Speaker 00: It's IDT with no pay and no points. [00:14:32] Speaker 00: There's nothing like that. [00:14:33] Speaker 04: But you're like a breed, right? [00:14:35] Speaker 04: Your Honor did note to a different statute under Title X where you could be on duty without pay that will be regarded as the same as with pay. [00:14:44] Speaker 04: Doesn't say specifically IDT. [00:14:46] Speaker 04: But there certainly are duties that occur without pay. [00:14:52] Speaker 04: All right. [00:14:52] Speaker 04: You're well into your rebuttal. [00:14:53] Speaker 05: I want to hear from the other side. [00:15:12] Speaker 03: Good morning. [00:15:13] Speaker 03: May it please the court? [00:15:15] Speaker 03: If I may, I'd first like to, as the court has pointed out in the discussion with counsel for Mr. Pipes, there is an evidentiary question that is really the heart of what the board did here. [00:15:27] Speaker 03: And it's finding that there wasn't sufficient evidence to find any kind of order to engage in IDT. [00:15:34] Speaker 05: Judge Clevenger already pointed to the- You just used the word order. [00:15:39] Speaker 05: What about authorization? [00:15:40] Speaker 05: I thought we were talking about whether there was an authorization here, not an order. [00:15:45] Speaker 03: Yes, Your Honor, and I apologize. [00:15:46] Speaker 05: I think I sort of used them interchangeably, but there was no- Well, that's a problem for me, because that's the basis of this case. [00:15:53] Speaker 03: Understood, Your Honor. [00:15:53] Speaker 05: He got an order, but it wasn't pre-authorized, and that's why his case fails. [00:15:58] Speaker 05: So tell me why you think the two were interchangeable. [00:16:01] Speaker 03: Your honor, let me clarify. [00:16:02] Speaker 03: I'm not talking about any order. [00:16:04] Speaker 03: I'm talking about an order that specifically authorizes IDT or a specific authorization. [00:16:10] Speaker 03: This is why I'm using it interchangeably, that there has not been an authorization of IDT. [00:16:14] Speaker 03: The order that is discussed in the evidence that I want to put in front of the court is specific to the SFIP program. [00:16:21] Speaker 03: It says you will enroll in SFIP. [00:16:24] Speaker 03: There is nothing in this record [00:16:26] Speaker 03: that suggests that that order had anything to do with placing Mr. Pipes in an IDT status. [00:16:33] Speaker 03: As Judge Clevenger pointed out, the sample memo that is attached to the SFIP program doesn't discuss IDT in any way. [00:16:45] Speaker 01: Right, but there's no evidence that there was even one of those documents in this case. [00:16:50] Speaker 01: I mean, I probably shouldn't have raised it. [00:16:51] Speaker 01: I raised it for purposes of my knowledge of what went on. [00:16:53] Speaker 03: That's correct, Your Honor. [00:16:54] Speaker 01: So I don't think you can rely on the absence of that. [00:16:57] Speaker 03: Absolutely, Your Honor. [00:16:57] Speaker 03: So I think the two pieces of evidence that I can point to in this record that discuss the SFIP order are at, in particular, 103, appendix 103. [00:17:10] Speaker 01: What do you mean, the SFIP order? [00:17:13] Speaker 03: The order that required Mr. Pipes to participate in the SFIP program. [00:17:18] Speaker 01: That was Colonel Don. [00:17:20] Speaker 01: What was his name? [00:17:22] Speaker 03: Well, there's a discrepancy, Your Honor, frankly. [00:17:25] Speaker 03: So if I may, I'll point that out. [00:17:29] Speaker 03: The first, I'm sorry, I said 103 is an affidavit. [00:17:34] Speaker 01: What page is this in the record? [00:17:36] Speaker 03: Appendix 103. [00:17:37] Speaker 01: 103. [00:17:40] Speaker 03: Is an affidavit from [00:17:41] Speaker 03: Mr. Pipes' commander from 2003 to 2005. [00:17:44] Speaker 03: I don't want to read from this because it is part of the confidential record, but I would point the court to the paragraph that begins second, sort of in the middle of the page. [00:17:57] Speaker 01: Is the entire record confidential? [00:17:59] Speaker 03: No, Your Honor. [00:18:00] Speaker 01: Then this page isn't more confidential? [00:18:05] Speaker 03: Okay, fair enough. [00:18:06] Speaker 03: I, for some reason, I had brackets around it, which I assumed might confidential, but- Well, let's not take any chances. [00:18:11] Speaker 05: Let's just read what you say under second. [00:18:13] Speaker 03: Yes, your honor. [00:18:14] Speaker 03: I just want to be careful about that. [00:18:17] Speaker 01: Where are we on volume three? [00:18:19] Speaker 03: In the middle, the paragraph that begins second. [00:18:22] Speaker 01: Okay. [00:18:25] Speaker 03: And then, so this is the description from Mr. Pipe's commander about what happened to get him into the SFIP program. [00:18:35] Speaker 01: Is that paragraph what you're relying on? [00:18:41] Speaker 01: That paragraph, can I read it all? [00:18:44] Speaker 01: It's not marked confidential. [00:18:47] Speaker 05: Well, what is the point you're trying to make about this document? [00:18:52] Speaker 05: Because I'm not getting it. [00:18:53] Speaker 03: This is the extent of the evidence about this order. [00:18:55] Speaker 03: This, and then I would point the court again. [00:18:57] Speaker 05: So your point is the order to participate in SFIP [00:19:02] Speaker 05: is not sufficient to create authorization for IDT? [00:19:05] Speaker 03: Yes, Your Honor. [00:19:06] Speaker 03: That is the point. [00:19:08] Speaker 03: Why not? [00:19:10] Speaker 03: Your Honor, for a number of reasons. [00:19:13] Speaker 03: The first of which was discussed, I think, extensively by the court below, that the regulation, the ACMAN provision that governs IDT, the 36-8001, requires authorization to be done on the Form 40A. [00:19:31] Speaker 01: And at the proceeding below, the government gave up on that argument and said that form doesn't matter. [00:19:38] Speaker 01: That was thrown out. [00:19:39] Speaker 03: Well, Your Honor, I think that form doesn't necessarily, there doesn't need to be evidence that form was executed in advance. [00:19:49] Speaker 01: It was conceded below and by the legal advisor to the board that you don't need to have that. [00:19:54] Speaker 03: You don't need to have that to initiate the IDT, but it has to document [00:19:59] Speaker 03: the IDT process at the very least. [00:20:02] Speaker 01: It isn't necessary. [00:20:05] Speaker 03: I'm not sure that that was the finding, Your Honor. [00:20:08] Speaker 03: I think it is necessary. [00:20:10] Speaker 03: And frankly, though, even if it is not, there needs to be something to demonstrate that authorization for a military duty status was given. [00:20:22] Speaker 01: Sure, the matter is I don't understand your argument all based on this paragraph we can't talk about. [00:20:27] Speaker 01: And if we have to clear the court so we can talk, Mr. Pipes is currently entitled to a full hearing here. [00:20:34] Speaker 03: Understood, Your Honor. [00:20:35] Speaker 03: I feel as though we waive confidentiality, Your Honor, if it comes down to that. [00:20:38] Speaker 03: And I will be clear. [00:20:39] Speaker 01: I don't think- I said waive confidentiality, right? [00:20:42] Speaker 01: Sorry? [00:20:42] Speaker 01: He just waived confidentiality. [00:20:43] Speaker 03: Yeah, and I'm OK with that. [00:20:45] Speaker 03: I don't think there is anything that is necessarily protected. [00:20:48] Speaker 01: So what is the purpose of your citation to this paragraph? [00:20:51] Speaker 01: It says he was formally enrolled in the program the same day. [00:20:55] Speaker 01: Yes, Your Honor. [00:20:56] Speaker 01: And that suggests that he received this document, Form 18. [00:21:01] Speaker 01: Yes, or something like it. [00:21:03] Speaker 01: Well, the Air Force flies by the rules, right? [00:21:07] Speaker 01: Yes, Your Honor. [00:21:08] Speaker 01: And if there's a rule that tells you how to do a SFIP and it says you enroll them and you use Attachment 18, it would be odd that Colonel Donnan didn't use 18. [00:21:17] Speaker 02: I agree. [00:21:18] Speaker 01: So he was enrolled, right? [00:21:19] Speaker 01: Yes, Your Honor. [00:21:20] Speaker 01: And then says he was ordered to exercise at least five times a week. [00:21:24] Speaker 01: That's the only order. [00:21:25] Speaker 03: Correct, Your Honor. [00:21:26] Speaker 03: And that is my point. [00:21:28] Speaker 01: And then I think if the court will also... So what you're trying to say is that's the only order he got? [00:21:34] Speaker 03: Yes, Your Honor. [00:21:34] Speaker 03: The order was to participate in the program. [00:21:37] Speaker 03: There is no authorization or additional order or no authorization in that order. [00:21:41] Speaker 01: Well, his argument is you don't need it. [00:21:43] Speaker 01: I think you do need it. [00:21:44] Speaker 01: His argument is that in the interstices of this odd situation where you ordinarily aren't ordered to do it, if you are ordered, the order satisfies the authorization requirement. [00:21:56] Speaker 05: Well, do we know that? [00:21:57] Speaker 05: I mean, can I just interrupt? [00:21:58] Speaker 05: Because do we know that? [00:21:59] Speaker 05: I don't know that. [00:22:00] Speaker 05: I mean, does it normally just happen a lot? [00:22:04] Speaker 05: And because you ordered, you assume that that's pre-authorization? [00:22:09] Speaker 05: Is there any evidence in the record that pre-authorization has been accepted or assumed based on this kind of order? [00:22:16] Speaker 03: There is not, Your Honor. [00:22:17] Speaker 03: The authorization for duty status or an order, putting someone in duty status is a very explicit step that is done [00:22:25] Speaker 03: as Your Honor pointed out, through the proper channels with the proper paperwork. [00:22:30] Speaker 03: There are certainly... Is it done with an order? [00:22:36] Speaker 01: Can you put someone on IDT status as an order? [00:22:37] Speaker 03: I think it would be called, perhaps termed an order. [00:22:40] Speaker 03: I don't know about the terminology, but it would certainly be explicit, Your Honor. [00:22:43] Speaker 01: It's something that would inform... Something beyond what we pointed to on JAA 150? [00:22:50] Speaker 03: Yes, Your Honor. [00:22:51] Speaker 01: Are you telling me, typically, if you're going into an SFIP, there would be a document in addition to page 150? [00:22:59] Speaker 03: No, Your Honor. [00:23:00] Speaker 03: I'm saying that SFIP is not authorized for the exercise that someone does subject to an SFIP is never authorized for IDT status. [00:23:13] Speaker 05: But that's not the order you're talking about in terms of pre-authorization, even though Judge Clevenger is correct. [00:23:19] Speaker 05: that the court below held that, and I think the government agreed, we don't need this exact form filled out exactly the way it's required in order to establish pre-authorization. [00:23:30] Speaker 05: There can be other evidentiary bases to establish there was pre-authorization. [00:23:35] Speaker 05: But your position is that's true, but there are none such evidentiary bases in this case. [00:23:42] Speaker 03: Yes, Your Honor. [00:23:43] Speaker 03: I think that is accurate. [00:23:44] Speaker 03: Um, if I may, I also just want to, to point the court to, and again, this is- Didn't you say there were two places in the record? [00:23:49] Speaker 03: Yes. [00:23:50] Speaker 03: The other is appendix 92, which is, um, Mr. Pipe's own affidavit. [00:23:54] Speaker 03: 92? [00:23:55] Speaker 03: 92. [00:23:58] Speaker 03: Um, and it's specifically, uh, paragraphs 13 and 14. [00:24:01] Speaker 01: This is Mr. Sipes' declaration? [00:24:05] Speaker 03: It's Mr. Pipe's affidavit from, um, yeah, an early part of the court federal claims case. [00:24:13] Speaker 01: Again, is there a waiver of confidentiality on this? [00:24:19] Speaker 05: What is it you want to show us on this? [00:24:23] Speaker 03: To a certain extent, it tracks with the language in the previous memorandum or declaration that I pointed out that all it says is that he was enrolled in SFIP. [00:24:35] Speaker 03: It indicates that the requirements of the SFIP, he characterizes as mandatory, that he had to [00:24:42] Speaker 03: exercise as directed. [00:24:44] Speaker 03: But there is nothing suggesting that that authorization included an authorization to be in a duty status for that exercise. [00:24:51] Speaker 05: Well, look at paragraph 16. [00:24:53] Speaker 05: It kind of suggests the reverse. [00:24:55] Speaker 05: And I don't understand the ins and outs of how this happens. [00:24:57] Speaker 05: But he said he was not permitted to submit a form for 40A. [00:25:02] Speaker 03: Yes, Your Honor. [00:25:04] Speaker 03: And I would say that's precisely because he was not authorized to be in that status. [00:25:10] Speaker 03: Form 40A is for IDT. [00:25:12] Speaker 03: I believe, at least in current regulations, that the SFIP program explicitly states that a reservist cannot be designated to IDT status to perform the SFIP. [00:25:30] Speaker 03: So I think that's just further evidence that he was not in that status. [00:25:32] Speaker 05: The thing that I think unsettles some of us is he's in the military, and he was ordered to do this, presumably so he could remain. [00:25:41] Speaker 05: It was a necessary thing, and I think we all agree that this physical fitness thing was a problem, and it needed to be cured for the benefit of the military, as well as Mr. Pipes. [00:25:51] Speaker 03: Yes, Your Honor. [00:25:52] Speaker 05: So he gets ordered to do this. [00:25:56] Speaker 05: And so you're saying that notwithstanding that he was ordered to do this as a member of the military, if something happened to him while it was being done, it was all on him and not on you. [00:26:08] Speaker 05: And that kind of seems a little troubling. [00:26:13] Speaker 03: I understand that, Your Honor. [00:26:15] Speaker 03: So what? [00:26:15] Speaker 03: Yes. [00:26:16] Speaker 03: Tell me. [00:26:16] Speaker 03: Comfort me. [00:26:19] Speaker 03: Comfort us. [00:26:20] Speaker 03: Yes, Your Honor. [00:26:22] Speaker 03: I want to put this in the broader context of some of these [00:26:25] Speaker 03: the requirements for being in the military. [00:26:28] Speaker 03: The SFIP fitness requirements are not the only fitness requirements out there. [00:26:32] Speaker 03: For example, the regulation that Mr. Price's counsel pointed to required all reservists to exercise three times a week off duty. [00:26:40] Speaker 03: That was already a requirement that existed. [00:26:43] Speaker 05: There are... And if they hurt themselves or something happens to them while they're exercising, they get no... They are not considered to be in a duty status. [00:26:51] Speaker 03: That's correct. [00:26:52] Speaker 03: They do not get disability retirement. [00:26:55] Speaker 03: They, as Mr. Pipes did, there are certainly other avenues through the VA to the extent that it was, in fact, related to service. [00:27:08] Speaker 03: But they would not be considered for disability retirement. [00:27:11] Speaker 03: There are other requirements that are mandatory. [00:27:15] Speaker 03: The appearance requirements, dress requirements, all of those are activities that require time outside of [00:27:24] Speaker 03: duty status to perform that are mandatory, that must happen. [00:27:28] Speaker 03: And service members are not placed into a duty status to perform those activities. [00:27:34] Speaker 03: Pressing uniforms, haircuts, additional fitness. [00:27:40] Speaker 05: So while we... Yeah, but all of those seem a little less vulnerable, make the person a little less vulnerable than this quite extensive exercise regime. [00:27:51] Speaker 03: Well, Your Honor, I don't know that [00:27:53] Speaker 03: It's a matter of degrees, I guess, Your Honor. [00:27:55] Speaker 03: There is already a fairly significant regulation requiring exercise outside of duty. [00:28:06] Speaker 03: And this certainly ups it a bit. [00:28:09] Speaker 05: So what was his choice? [00:28:10] Speaker 05: If he happened to think of it or realize it and said, well, wait a minute, I'm not going to do this unless you tell me that I'm covered by all of these sort of regimes that will protect me if anything happens, and the answer [00:28:22] Speaker 05: would have been, well, you're not. [00:28:25] Speaker 05: And then what does he say? [00:28:27] Speaker 05: Therefore, I'm resigning because I'm refusing to comply with the order? [00:28:31] Speaker 05: Or can he say, I'm not going to comply with the order, but let's move on to other stuff? [00:28:36] Speaker 03: Your Honor, I think the path that seems like it would have been the most appropriate in this case would have been to bring up, and we recognize that there were failures by a lot of parties here, [00:28:51] Speaker 03: to bring up the fact that there was hypertension. [00:28:53] Speaker 03: You can get excused from certain aspects of the fitness requirements for particular conditions. [00:29:00] Speaker 03: This seems like it should have. [00:29:01] Speaker 03: And I think there is evidence in the record demonstrating that medical personnel thought that this should have been brought to the attention of his superiors, either by Mr. Pipes, by the medical personnel. [00:29:13] Speaker 03: And he could have been exempted to the extent that he felt that this was [00:29:19] Speaker 05: Well, does he have a cause of action here based on the way the facts went down of him getting what you're offering up here? [00:29:27] Speaker 05: He should have gone to a medical person. [00:29:29] Speaker 05: The medical person should have diagnosed him as being an endanger. [00:29:32] Speaker 05: That's what happened. [00:29:34] Speaker 05: And it was the medical person employed by the employer, by the military, that made that diagnosis. [00:29:42] Speaker 05: So does he have any recourse on that end of this scenario? [00:29:48] Speaker 03: I don't believe so, Your Honor. [00:29:50] Speaker 05: I will note, I think that Mr. Pipes has argued that there's a finding... Well, you just told me four minutes ago that, yes, he can get out of this order if he's got a diagnosis of hypertension. [00:30:01] Speaker 03: Yes, Your Honor. [00:30:03] Speaker 05: So now you're saying he can get out of this order if he has a diagnosis of hypertension, and he brings that diagnosis [00:30:11] Speaker 05: to the attention of his commanding officer. [00:30:13] Speaker 05: So the obligation is on him to bring that diagnosis and not the military people, military physicians who examined him. [00:30:22] Speaker 03: I think it was on both, Your Honor. [00:30:24] Speaker 03: And again, I was addressing what should have happened at the time. [00:30:28] Speaker 05: Well, so if there was an obligation on both, both includes on the military personnel that examined him. [00:30:35] Speaker 05: So I might get some back to my question, is there potential for some recovery or some cause of action for a failure of them to bring this to the attention of his commanding officer? [00:30:49] Speaker 03: And I'm sorry, Your Honor, but I think the unsatisfying question or answer is probably not, although I certainly can't say that for sure. [00:30:57] Speaker 01: I don't want to... That doesn't help on the question in front of us. [00:31:00] Speaker 01: It doesn't. [00:31:01] Speaker 01: Whether or not there is authorizations required, and if so, was there any? [00:31:06] Speaker 03: It doesn't, Your Honor, and I completely agree with that, although I certainly understand the uncomfortable nature of this case in Mr. Price's position. [00:31:16] Speaker 01: I see I'm over my time on kind of answering... Did the corrections board sufficiently appreciate the unusual nature of the circumstances here where there was an order [00:31:25] Speaker 01: to engage in the SFIP, whereas I think you were telling me typically there's not an order. [00:31:32] Speaker 01: Am I right that there typically is not an order? [00:31:35] Speaker 03: Typically, the SFIP program is voluntary. [00:31:40] Speaker 03: So I believe typically there is not an order saying you are required to do the things. [00:31:45] Speaker 01: And we established that this is an unusual case and that there was an order for him to engage in the SFIP. [00:31:53] Speaker 05: Yes, Your Honor. [00:31:54] Speaker 05: In other words, it was not voluntary. [00:31:56] Speaker 05: It was required. [00:31:59] Speaker 01: Yeah. [00:32:00] Speaker 01: And if he had refused to do it, if he said, excuse me, I don't want to do that, could he have been punished? [00:32:09] Speaker 01: Yes or no? [00:32:10] Speaker 03: Potentially, yes. [00:32:12] Speaker 03: I think it's unlikely, Your Honor, I have to say. [00:32:14] Speaker 01: We need to get the parameters. [00:32:16] Speaker 03: Yes, Your Honor, and I think this is something that was covered. [00:32:18] Speaker 01: This is on you, because ordinarily, if you are engaged, you get a voluntary participation in SIFIP and you quit. [00:32:26] Speaker 01: The only consequences are that when you go in for your regular physical checkup, you're going to flunk. [00:32:32] Speaker 01: Right? [00:32:33] Speaker 03: Yes, Your Honor. [00:32:33] Speaker 01: Because he was put on this because he funked in his regular physical dirt while he was in duty, which meant that the order was lawful and not unlawful. [00:32:41] Speaker 01: Right? [00:32:42] Speaker 01: Yes, Your Honor. [00:32:42] Speaker 01: So the circumstances are, without this kind of order here, that if he decides he doesn't want to do the SRP, that's his choice. [00:32:53] Speaker 01: What it probably means is he's going to funk the regular exam, and then he's going to get mustered out of the reserves. [00:32:58] Speaker 03: That's correct, Your Honor. [00:33:00] Speaker 03: So I can't answer the question. [00:33:03] Speaker 03: a solid answer, because it was an order that this court has found to be an actual order and a valid order. [00:33:13] Speaker 01: Given this case, why don't, in your agencies and the government's firm argument is, is that half man doesn't apply that whole regulation? [00:33:22] Speaker 05: Does apply. [00:33:23] Speaker 05: Does apply. [00:33:23] Speaker 05: Yes, Your Honor. [00:33:25] Speaker 05: I'm just a little confused by some of the back and forth here. [00:33:28] Speaker 05: Firstly, I thought you said that there's already a requirement that people [00:33:34] Speaker 05: who exercise three times a week. [00:33:36] Speaker 05: There is, Your Honor. [00:33:37] Speaker 05: Is that voluntary or involuntary? [00:33:39] Speaker 03: I don't believe that's voluntary, but I also don't believe it's tracked. [00:33:43] Speaker 03: OK. [00:33:44] Speaker 05: And then on the point you made about whether, when Judge Clevenger asked you if he had refused to abide by the order, could he or would he have been punished, I think your answer was yes, likely. [00:33:55] Speaker 05: And I don't understand that, because I thought you had told me a few minutes ago that if a doctor has said that there's a problem, [00:34:05] Speaker 05: then gets him off the hook, or it creates exigent circumstances. [00:34:09] Speaker 05: So in this circumstance, if he had said, I can't do this, look at these medical reports I just got, would he have been punished for failure to follow the order in those circumstances? [00:34:19] Speaker 03: In those circumstances, probably not, Your Honor. [00:34:21] Speaker 03: I mean, there are certainly the regs have procedures for how you're supposed to respond when there is a diagnosis of something that is likely to be dangerous if you keep participating in the fitness program. [00:34:34] Speaker 03: If he were to simply say, I don't want to do this, potentially there could be ramifications for defying an order. [00:34:41] Speaker 05: But isn't it true? [00:34:43] Speaker 05: I think Judge Cleminger was alluding to the consequences would be shown that he would flunk the medical exam, and that would be the consequence, not that he would necessarily be compelled. [00:34:54] Speaker 05: punished for failing to follow the order. [00:34:58] Speaker 05: You don't know the answer. [00:34:58] Speaker 03: I don't know the answer to that. [00:34:59] Speaker 03: Practically speaking, I think it would have been highly unlikely that he would have been punished simply for standing up and saying, I'm not going to do this, for a variety of reasons, one of which is I assume the rationale would be, I have hypertension, I should not be running. [00:35:14] Speaker 03: That would have gone through the processes, and it probably would have changed his status. [00:35:18] Speaker 03: I think there is also, from the [00:35:22] Speaker 03: legal advisory opinions that have come out in the order, I think nobody believed that he really should have been given a mandatory order. [00:35:29] Speaker 03: So I assume through the processes there, he may not have been punished. [00:35:33] Speaker 03: But I do think it is also true that if the result had been failure to perform adequately in the next physical exam, that certainly could have resulted in consequences to include being removed from service. [00:35:51] Speaker 01: Irrespective of an order or not. [00:35:53] Speaker 01: In a regular fitness assessment? [00:35:55] Speaker 01: Sure. [00:35:56] Speaker 01: Well, the purpose of the regular exam is to see whether you're fit to continue to serve. [00:35:59] Speaker 03: Yes, Your Honor. [00:36:00] Speaker 03: And I think that would have likely been the path that would have occurred had the stroke not happened. [00:36:11] Speaker 05: Thank you. [00:36:12] Speaker 03: Thank you very much, Your Honor. [00:36:16] Speaker 05: Will we still have four minutes of rebuttal? [00:36:19] Speaker 04: I'll try to be very brief. [00:36:24] Speaker 04: Their position that the 40A form was a requirement is not the case. [00:36:30] Speaker 04: And that's been decided by the claims court. [00:36:33] Speaker 05: And so I think she backed off once I pointed out to her, we pointed out to her that the government had conceded you didn't need that precisely. [00:36:40] Speaker 04: The last part of their presentation was the [00:36:44] Speaker 04: the evidence of the hypertension that had he raised this hypertension to the medical squad or to his commander, he would have been exempt potentially. [00:36:55] Speaker 04: The opinion below by this court and the record supports that he didn't know he had hypertension until for the first time he received his medical records on October 15th, 2010. [00:37:06] Speaker 04: That was kept from him. [00:37:09] Speaker 04: At the time of his injury, he had no clue he was hypertensive or had high blood pressure. [00:37:14] Speaker 04: And the record supports that. [00:37:16] Speaker 05: I thought he went, well, he went to the physician, right? [00:37:18] Speaker 05: Because he wasn't feeling well or something, right? [00:37:21] Speaker 04: At the time when he had a stroke, he went to the doc, well, he went to the emergency room that same night where he was diagnosed with the stroke, with the CBA. [00:37:32] Speaker 04: But the evidence leading up to the stroke, the hypertension, the high blood pressure was kept from him. [00:37:39] Speaker 04: As we can tell, this record has very little medical records. [00:37:43] Speaker 04: It's most of it's gone. [00:37:44] Speaker 05: It was kept from him. [00:37:45] Speaker 05: Did he ask for it and not receive it? [00:37:47] Speaker 05: He asked for all of his medical records and they said, no, you can't see them. [00:37:50] Speaker 04: It's gone. [00:37:51] Speaker 04: Most of it is gone. [00:37:52] Speaker 04: This is what he was able to obtain from the air force. [00:37:57] Speaker 04: And it's unfortunate because he's the one who suffered ultimately. [00:38:00] Speaker 04: He's the one who is injured. [00:38:01] Speaker 01: I don't see what that's got to do with the authorization issue. [00:38:05] Speaker 01: So to that point, your honor, it just looks to me like it's still a question of whether or not there was authorization. [00:38:12] Speaker 01: to put him in IDT status? [00:38:15] Speaker 04: So what I just heard the government say is that the SFIP is never authorized for IDT, period. [00:38:23] Speaker 04: Of which? [00:38:24] Speaker 04: They just argued that this SFIP program is never authorized for IDT. [00:38:33] Speaker 05: I don't know. [00:38:33] Speaker 05: I didn't understand it was never authorized. [00:38:35] Speaker 05: It says that it has to be authorized. [00:38:38] Speaker 05: And it was never authorized in this case. [00:38:41] Speaker 05: Did she say never in any circumstance anywhere? [00:38:45] Speaker 04: It's never authorized? [00:38:48] Speaker 04: What I heard from the government is that the SFIP, by its nature, is never authorized for IDT. [00:38:55] Speaker 04: The SFIP, by its nature, which is three times per week of exercise, [00:39:02] Speaker 04: is not authorized for IDT. [00:39:03] Speaker 05: Oh, yeah. [00:39:04] Speaker 05: Because she said the norm is that everybody gets the three days of author's three days, and it's not voluntary, and it's not authorized for IDT. [00:39:12] Speaker 04: Yeah. [00:39:12] Speaker 04: So then what status are you in? [00:39:15] Speaker 01: What about the norm was arguing that there are only two pieces of evidence here that relate to the so-called order? [00:39:21] Speaker 01: Do you agree with that? [00:39:24] Speaker 01: She cited page 92 and page 103. [00:39:28] Speaker 01: Uh, no, uh, the order to be enrolled in the. [00:39:31] Speaker 01: To be enrolled in and be required to perform. [00:39:37] Speaker 04: So the order to be enrolled, uh, was both verbal and written. [00:39:40] Speaker 04: The evidence we believe is more than those two affidavits. [00:39:45] Speaker 04: It's the affidavits of the other commanders, his own affidavit that's later in the record. [00:39:49] Speaker 04: There is no, there's nothing like the attachment. [00:39:52] Speaker 04: sample that you provided. [00:39:53] Speaker 04: We concede to that. [00:39:55] Speaker 04: That's not here. [00:39:56] Speaker 04: But it's also, I don't believe, in dispute that he was ordered to participate in the SBIP. [00:40:02] Speaker 04: I believe the court resolved that in 2019. [00:40:05] Speaker 04: The issue is the authorization. [00:40:07] Speaker 04: Was there another layer of authorization that was required for him to exercise pursuant to the SBIP? [00:40:13] Speaker 01: Let's come back to a typical SFIP for which there is no order. [00:40:19] Speaker 01: There is only the authorization, pardon me, no authorization. [00:40:23] Speaker 01: There's a letter enrolled in it. [00:40:25] Speaker 01: And it's voluntary, correct? [00:40:29] Speaker 01: Not talking about the one that Mr. Sipes was in. [00:40:32] Speaker 01: It's a voluntary program. [00:40:34] Speaker 01: You do it on your own. [00:40:36] Speaker 01: You're not ordered to do it. [00:40:38] Speaker 01: If you don't do it, there are no consequences. [00:40:41] Speaker 01: Except that when you come back in for your regular checkup during regular NIET status thing, you're probably going to be mustered out. [00:40:51] Speaker 01: That's a typical one. [00:40:53] Speaker 04: Right. [00:40:53] Speaker 04: The FI supports that. [00:40:55] Speaker 01: And no pay, no points, no nothing. [00:40:57] Speaker 01: You're just supposed to work it out with the person that [00:41:02] Speaker 01: creates the need for you to do this, here are the kind of things you should do. [00:41:05] Speaker 01: The object is to get you qualified so the next time you come in for a regular checkup in IDT status, you'll pass, right? [00:41:13] Speaker 01: That's what it's for. [00:41:15] Speaker 04: Correct. [00:41:15] Speaker 01: This one is strange because although in all other respects, that was the object of the whole program, right? [00:41:25] Speaker 01: If there hadn't been an order here, right, then [00:41:30] Speaker 01: The fact that Mr. Sox underwent an adverse effect while doing the SRP would not be IDT, right? [00:41:40] Speaker 04: Well, the very nature. [00:41:41] Speaker 04: Absent the order. [00:41:42] Speaker 04: Right. [00:41:43] Speaker 04: But the very nature of there being an SRP. [00:41:45] Speaker 01: I'm going to pare the case down. [00:41:47] Speaker 01: Yeah, I understand. [00:41:48] Speaker 01: So you would agree that absent the order, then it would not be what the ordinary performance [00:41:58] Speaker 01: SFIP does not put one in IDT status. [00:42:03] Speaker 04: I would concede that to be the general point, but here it becomes. [00:42:08] Speaker 01: We're just trying to get the parameter, because I think that's what the government was trying to say is an ordinary case. [00:42:14] Speaker 01: You're in an IDP, so just purely you're not. [00:42:17] Speaker 01: And if you have a heart attack, it's too bad. [00:42:19] Speaker 01: It's on you. [00:42:20] Speaker 01: Similar to the requirement that you're supposed to do twice a week or twice, I don't remember, exercise. [00:42:28] Speaker 01: So what IDP is, what SFIP is, that it's sort of a customized version of the exercise you're supposed to do ordinarily, free and on your own, designed for you because of problems that haven't been indicated to try to help you be ready to pass the real exam. [00:42:47] Speaker 01: Right? [00:42:47] Speaker 04: Correct. [00:42:48] Speaker 01: And the fact that there was an order here, does that change the whole concept for whether he was put into IDP status to perform? [00:42:58] Speaker 01: The SFIP. [00:43:01] Speaker 04: Which goes back to the point as being ordered to engage was the authorization to engage. [00:43:07] Speaker 04: And nothing else is required. [00:43:09] Speaker ?: OK. [00:43:09] Speaker 04: We have your argument. [00:43:10] Speaker 04: Thank you. [00:43:11] Speaker 05: We thank both sides for your cases today. [00:43:12] Speaker 01: Thank you. [00:43:13] Speaker 01: Your Honor, can I be familiar with the state of this short time? [00:43:18] Speaker 05: We have time limits for both sides. [00:43:20] Speaker 01: And we have a lot of that. [00:43:21] Speaker 01: As an asking question, you say no, you say no. [00:43:24] Speaker 01: That's perfect. [00:43:24] Speaker 05: Thank you. [00:43:27] Speaker 05: Thank you very much.