[00:00:00] Speaker 01:
The last case this morning is Evelyn Rodriguez-Thomas versus the United States, 2023-2154.

[00:00:07] Speaker 01:
Mr. Cassara.

[00:00:12] Speaker 05:
Good morning, members of the court.

[00:00:14] Speaker 05:
It's a pleasure to be back before you.

[00:00:16] Speaker 05:
My name is William Cassara and I represent Dr. Evelyn Rodriguez-Thomas.

[00:00:22] Speaker 05:
question in this case is really fairly straightforward, although as I was preparing again this morning and going through all of these subsections and sections, I'm realizing that that's why I went to law school and not statistical school, because I get lost in numbers sometimes.

[00:00:38] Speaker 05:
But the question is really very simple.

[00:00:40] Speaker 05:
Did the lower court err by ruling that the decision of the United States Public Health Service

[00:00:45] Speaker 05:
Order of corrections was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence when it failed to use the correct retired pay multiplier under 42 USC 212A6.

[00:00:59] Speaker 05:
More specifically, the question is, do the years of plaintiff civil service at the public health service qualify as active service as a member of the uniformed service?

[00:01:09] Speaker 02:
So the Court of Federal Claims, in Appendix 4 at least, gives his analysis, her analysis of the statutory provisions.

[00:01:18] Speaker 02:
Why is that wrong?

[00:01:19] Speaker 05:
Judge, I am having a hard time hearing you.

[00:01:21] Speaker 05:
I'm terribly sorry.

[00:01:22] Speaker 02:
The Court of Federal Claims analyzed the statute.

[00:01:25] Speaker 02:
What's wrong with the analysis?

[00:01:27] Speaker 05:
Sure.

[00:01:28] Speaker 05:
And what's important to remember, Your Honor, is that the standard of review for this Court on a question of statutory interpretation

[00:01:37] Speaker 05:
is reviewed without deference and what is wrong is that the Judge Schwartz did not give credit to the statute says very clearly

[00:01:47] Speaker 05:
Her time in medical school counts as long as she wasn't in the armed services at the time.

[00:01:57] Speaker 05:
And that is where she has been shorted by basically requiring her to pick either her time as civil service or her time in medical school.

[00:02:08] Speaker 05:
And the statute says that you can count both under the alternate theory, as I'll explain in just a moment.

[00:02:14] Speaker 05:
This quote will not disturb the decision

[00:02:16] Speaker 05:
of the Corrections Board unless it is arbitrary.

[00:02:19] Speaker 04:
Where does the alternate theory reach the conclusion that you're arguing for?

[00:02:28] Speaker 04:
Yes, Your Honor.

[00:02:29] Speaker 05:
And I can point to in the Administrative Record at page, I was going to say 20, but I think that's incorrect.

[00:02:38] Speaker 05:
And also in our opening brief at page 10,

[00:02:42] Speaker 05:
in which we state very clearly that the years of active service as a member of the uniformed service include both her civil service... Look at the statute.

[00:02:50] Speaker 04:
I'm looking at the statute, Your Honor.

[00:02:53] Speaker 04:
Which provision of the statute?

[00:02:55] Speaker 05:
Well, it depends on when you say which provision, Your Honor, if you could please clarify what you're asking me.

[00:03:03] Speaker 04:
I'm just asking you to show me where the statute supports your theory that you can both, on the alternative approach, get the medical school and the earlier service and the public health service.

[00:03:17] Speaker 05:
Because the language of the statute... Which language, which section?

[00:03:22] Speaker 05:
42 alpha 4 bravo.

[00:03:27] Speaker 05:
I'm using military nomenclature, I'm sorry.

[00:03:30] Speaker 04:
One of you spent time in the Marine Corps.

[00:03:32] Speaker 04:
Which section of 42?

[00:03:33] Speaker 04:
212?

[00:03:34] Speaker 04:
212A4B.

[00:03:39] Speaker 05:
Okay.

[00:03:40] Speaker 05:
And she can get credit for her active service as a member of the uniformed services, plus up to five years of medical schooling, plus her internship.

[00:03:50] Speaker 05:
The problem with this case, Judge, with the way that the statute has been calculated, is that

[00:03:57] Speaker 05:
As you know, there's sort of a two-step process that has to be undertaken.

[00:04:01] Speaker 04:
And the first of those is... If I understand correctly... I'm sorry, Judge?

[00:04:07] Speaker 04:
If I understand correctly, what OPM said was that the public health service earlier was not as a uniformed member of the public health service, correct?

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

[00:04:19] Speaker 04:
And you don't dispute that, right?

[00:04:22] Speaker 04:
She was not wearing a uniform, if that's...

[00:04:27] Speaker 04:
You're saying that still fits within subsection I?

[00:04:31] Speaker 04:
Well, Judge, it does, and here's why.

[00:04:33] Speaker 05:
If you take the court's interpretation, the trial courts, the Court of Federal Claims, it can lead to the somewhat absurd result that none of her time in the public health service would count.

[00:04:47] Speaker 05:
because of the way that the statute is worded.

[00:04:50] Speaker 05:
The Public Health Service specifically, in fact, if you recall when she was retiring, the Public Health Service specifically included her time towards her retirement and then sort of said, well, but we have to take it out without any explanation as to why they had to take it out.

[00:05:05] Speaker 05:
And the retired pay should have been calculated as five years of medical school, three years, six months, and 27 days of civil service, and her time in the Commissioned Corps.

[00:05:16] Speaker 05:
Because to read the statute the other way would take away all of her time in the public health service.

[00:05:22] Speaker 05:
And the other important thing to realize, Judge, is that you look at the way that the statute is worded when it talks about her medical schooling, and it specifically talks about medical officers,

[00:05:31] Speaker 05:
It says, service comparable to that of a commissioned officer.

[00:05:36] Speaker 05:
The way that the public health service works, as you see from the administrative record, is these people go sort of from a civil service to a uniformed service status fairly fluidly.

[00:05:51] Speaker 05:
which is why the statute is written in a way that it would exclude her time in medical school if she were on active duty at that time.

[00:06:00] Speaker 05:
She was not.

[00:06:02] Speaker 05:
And I believe that that is really where the mistake of the trial court took place, is that you take that five years of medical schooling and internship out of the equation

[00:06:12] Speaker 05:
If she was a member of a uniformed service, for example, and the statute even specifically states, maybe it might be the CFR, but specifically states that if she was at what's called the USPUHS, which is the military's medical school, so if she were going to medical school on the public dime, so to speak, those years would not count.

[00:06:34] Speaker 05:
So one can certainly infer from the opposite of that, that if she was not going to medical school on the public dime, and that if she was paying for her own medical school, that her time in medical school counts towards her active federal service.

[00:06:52] Speaker 05:
To calculate her retired pay, we take the base pay and then we multiply, which is 2.5% of her creditable service.

[00:07:02] Speaker 05:
And then at its core, the education, the calculation rather, is her three base pay times 2.5 years of creditable service.

[00:07:09] Speaker 05:
Everyone agrees on that part of the formula.

[00:07:11] Speaker 05:
The only question is, what calculates years of creditable service?

[00:07:16] Speaker 05:
You determine her retired base pay using the high three average under 10 USC 1407.

[00:07:22] Speaker 02:
getting more confused as the time goes on.

[00:07:25] Speaker 02:
Can I just ask you a very simple question?

[00:07:27] Speaker 02:
Is your claim under the alternative method or the general method?

[00:07:30] Speaker 05:
The alternative method.

[00:07:32] Speaker 05:
We believe that if you calculate it under either method, she's totally right.

[00:07:36] Speaker 02:
And so how do you construe determined without regard to subsection D?

[00:07:40] Speaker 05:
And that's really what this case boils down to.

[00:07:42] Speaker 05:
And then I conclude.

[00:07:44] Speaker 05:
The issue is that 212D differentiates between active service and the uniform service and active service

[00:07:52] Speaker 05:
with the PHS.

[00:07:54] Speaker 05:
But again, it has that little kicker in there that talks about medical schooling as you look towards – you can't just look at – in other words, Judge, I'm trying not to confuse you and myself as I read these things until my eyes – With regard to – it excludes non-uniformed public health service employment.

[00:08:11] Speaker 02:
Does it not?

[00:08:12] Speaker 02:
Yes.

[00:08:13] Speaker 02:
Okay.

[00:08:14] Speaker 02:
So that's what the Court of Federal Claims said.

[00:08:16] Speaker 02:
Because it says, without regard to subsection D, it excludes non-uniform public health service employment from the calculation.

[00:08:24] Speaker 05:
But it is not the only statute that we have to look to when interpreting this.

[00:08:29] Speaker 02:
Because when we... So you're agreeing that this statute is right, but we have to look to something else?

[00:08:33] Speaker 02:
Yes.

[00:08:33] Speaker 02:
Okay.

[00:08:34] Speaker 02:
What's the something else?

[00:08:35] Speaker 05:
And something else says that that time in medical schooling... What's the something else?

[00:08:40] Speaker 05:
Oh, I'm sorry, Judge.

[00:08:42] Speaker 05:
It's the 42 USC 212 alpha, as opposed to 10 USC 1409, which says that the years of active service

[00:08:59] Speaker 05:
in the uniform service that you take out the time if she was a commissioned officer at the time that she was in medical school.

[00:09:10] Speaker 05:
She was not.

[00:09:12] Speaker 05:
And that's really what this case boils down to, is that you cannot look at that particular piece of the statute in a vacuum

[00:09:20] Speaker 05:
and that you have to... Well, I understand.

[00:09:22] Speaker 02:
If you're agreeing that you're going under the alternative method, well, nobody's disputing that the alternative method includes the medical school stuff.

[00:09:30] Speaker 02:
Right.

[00:09:31] Speaker 02:
So she's got that.

[00:09:33] Speaker 02:
She's got that.

[00:09:35] Speaker 02:
The question is the time for non-uniformed service, right?

[00:09:40] Speaker 05:
Right.

[00:09:41] Speaker 05:
And that's when you go back to 10 U.S.C.

[00:09:45] Speaker 05:
14094 Bravo I.

[00:09:55] Speaker 05:
which includes her civil service time.

[00:10:01] Speaker 05:
And my point, Judge, and if you look at AR 3... I'm sorry.

[00:10:04] Speaker 02:
Where is that cited in your brief, that provision?

[00:10:07] Speaker 02:
I want to make sure we're looking at the previous provision.

[00:10:09] Speaker 02:
Sure.

[00:10:09] Speaker 02:
So is it at page 10?

[00:10:11] Speaker 05:
Yes, that is at page 10.

[00:10:21] Speaker 05:
Judge, am I late?

[00:10:22] Speaker 02:
That's under the alternative method, right?

[00:10:25] Speaker 05:
Yes, to be clear, our position is that under either method, she is entitled to 25 years of creditable service.

[00:10:34] Speaker 05:
We are relying upon the alternate method because the statute says that you use whichever one will give her the highest yield, so to speak.

[00:10:44] Speaker 05:
And if you look at the administrative record at page 37, which is the advisory opinion of the

[00:10:54] Speaker 05:
public health credit, the public health service rather, which obviously we disagree with, it points you back to 42 USC 212 B 1 through 3.

[00:11:04] Speaker 05:
So that's where you get the sort of interplay of those two statutes.

[00:11:12] Speaker 05:
But, Judge, I think that we have, at least we have tried in the somewhat confusing nature of the two statutes, if you look at

[00:11:24] Speaker 05:
our brief on page 10.

[00:11:25] Speaker 05:
At the very end, 10 U.S.C.

[00:11:31] Speaker 05:
1409 concludes both our civil service and the uniformed service and the commission time for the court.

[00:11:36] Speaker 05:
And you get that by looking at 1409, 4B, 1 through 3.

[00:11:43] Speaker 05:
Subject to any further questions from the members of the court, I believe that concludes my initial presentation.

[00:11:48] Speaker 01:
We will save you a battle time.

[00:11:50] Speaker 01:
Thank you, Judge.

[00:11:52] Speaker 01:
Mrs. Groves.

[00:12:00] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:12:10] Speaker 00:
Commander Bobbie gives Thomas's interpretation as contrary to the plain language of the statute.

[00:12:14] Speaker 03:
I don't understand what this interpretation is.

[00:12:17] Speaker 03:
Do you understand what he's saying?

[00:12:19] Speaker 00:
No, Your Honor.

[00:12:20] Speaker 00:
It's very clear between the general method and the alternative method.

[00:12:24] Speaker 00:
The general method includes civilian service and the alternate method includes

[00:12:28] Speaker 00:
education without regard to subsection D, which is the civilian service.

[00:12:31] Speaker 00:
And when you look at 10 USC 1409, that just discusses the multiplier.

[00:12:35] Speaker 00:
That doesn't discuss the definition of active service or civilian service for that matter.

[00:12:40] Speaker 00:
So I must admit that I am also unsure what exactly the argument is.

[00:12:45] Speaker 00:
It seems very clear from the language of the statute that Congress intended either

[00:12:50] Speaker 00:
education to be credited or civilian service.

[00:12:53] Speaker 00:
And it's not that her civilian service isn't counted.

[00:12:55] Speaker 00:
It is counted under the general method because she deserves the rate which gives her the highest amount of years.

[00:13:01] Speaker 00:
She's under the alternate method instead.

[00:13:03] Speaker 00:
So her civilian service is being counted.

[00:13:06] Speaker 00:
It's just not being counted in her multiplier because we're using a different method.

[00:13:11] Speaker 00:
So, the fact that she did civilian service is not discounted in the scheme of her career.

[00:13:16] Speaker 00:
It's just not counted in this specific multiplier and in this specific way to calculate.

[00:13:22] Speaker 02:
So, through assuming it's a practical matter, somebody picks and chooses.

[00:13:27] Speaker 02:
You decide if your civilian service is greater than years of education, right?

[00:13:33] Speaker 02:
It's her choice.

[00:13:35] Speaker 00:
It wouldn't be her choice.

[00:13:37] Speaker 00:
It would be the choice under the calculators would look at both the general method and the alternate method.

[00:13:42] Speaker 00:
And whichever method has the most years of service at the end, then yes, you would pick that because she deserves the most amount of years.

[00:13:50] Speaker 00:
Yes.

[00:13:51] Speaker 00:
And she can't combine them.

[00:13:54] Speaker 00:
And if the court has no further questions, the decision of the Court of Federal Claims should be affirmed.

[00:14:00] Speaker 00:
Thank you, Your Honors.

[00:14:01] Speaker 01:
Thank you, counsel.

[00:14:04] Speaker 01:
Mr. Casar has

[00:14:05] Speaker 01:
And the other time, not much to the buck.

[00:14:10] Speaker 05:
Well, I don't want to leave the court any more confused than what the statute itself does, so I'm going to try.

[00:14:16] Speaker 05:
If you look at the administrative record at page nine, which is the original application to

[00:14:34] Speaker 05:
the Public Health Service Board.

[00:14:39] Speaker 02:
You don't mean Appendix 9?

[00:14:41] Speaker 05:
I copied the administrative record and not the Joint Appendix, but the administrative record is at page 9, which is page 7 of our original brief.

[00:14:55] Speaker 05:
Quite honestly, I never know when I come to the court which tree to kill and which papers to bring, so I chose to bring the smaller of the two.

[00:15:04] Speaker 05:
It says, as you can see, active service is defined to include active service in the uniformed service plus active service with the PHS.

[00:15:13] Speaker 05:
That language would not be in there if there was not a distinction between the two.

[00:15:18] Speaker 05:
The distinction between the two is that under the PHS, you can be, as I said, your service can be somewhat fluid and you can go from a civilian status to a military status, wearing a uniform one tour of duty and being a civilian in the other tour of duty.

[00:15:35] Speaker 05:
That is why the Public Health Service has fashioned a retirement system that takes both of those into consideration and would give her 25 years of active federal service.

[00:15:46] Speaker 05:
So just any further questions from the members of the court, that will conclude my presentation.

[00:15:51] Speaker 01:
Thank you to both counsel.

[00:15:52] Speaker 01:
The case is submitted.