[00:00:08] Speaker 01:
You reserve three minutes of your time for rebuttal, is that correct?

[00:00:13] Speaker 01:
Yes.

[00:00:16] Speaker 04:
May it please the Court.

[00:00:18] Speaker 04:
The trial court errors because the Secretary lawfully authorized a reduction in the Coast Guard's retirement eligible workforce through the CRISP, which selected 400 enlisted members for involuntary retirement with full retirement benefits.

[00:00:37] Speaker 00:
Were these career retention screening panels in existence before this process, or were these specially created and named units to carry out this process?

[00:00:51] Speaker 04:
They were convened for this purpose pursuant to the Secretary's memoranda issued in 2012, 13, and 14 that specifically invoked her reduction in force authority under Section 357J.

[00:01:06] Speaker 04:
And notably, Your Honors, there is no dispute that the Coast Guard had a legitimate reason for conducting these crimes, to rebalance and to ensure the proper functioning of the enlisted military force.

[00:01:20] Speaker 01:
My first question, looking at section 1169, it looks like

[00:01:28] Speaker 01:
It sets out terms when enlisted members of the armed forces can be discharged.

[00:01:34] Speaker 01:
And the first one says, as prescribed by the secretary.

[00:01:38] Speaker 01:
And then when we look at the other statute that's been invoked here, there is another prescription by the law.

[00:01:58] Speaker 01:
broad discretion, and the Secretary has acted within that discretion.

[00:02:04] Speaker 01:
And I don't know if that's a dispute or not.

[00:02:08] Speaker 04:
Your Honor, I couldn't agree more.

[00:02:11] Speaker 04:
Just like this Court determined in Alton, when there is a legitimate military purpose exercised to involuntarily separate enlisted members, that is largely the end of the inquiry.

[00:02:27] Speaker 00:
Can I ask, I was wondering as I was reading the briefs, I think something a little bit similar, but I don't see you having made any argument that 1169 supports, justifies what is challenged here, even if what is challenged here falls outside 357J.

[00:02:50] Speaker 04:
Well, Your Honor,

[00:02:55] Speaker 04:
The secretary invoked both authorities, 1169 and 357.

[00:02:58] Speaker 00:
I didn't ask about what the secretary did.

[00:03:00] Speaker 00:
I asked about what you argued.

[00:03:02] Speaker 00:
I don't see you having made an argument that even if the claims court is right about 357 J, so that this was in fact a reduction in force, that the secretary could do this under 1169.

[00:03:16] Speaker 04:
We did make that argument, Your Honor.

[00:03:18] Speaker 04:
And we cited Lipman for that purpose in, I believe, in our opening brief.

[00:03:31] Speaker 04:
We talked about 11.

[00:03:32] Speaker 04:
On page 12 of our opening brief, we talked about 1169.

[00:03:35] Speaker 00:
I know you talk about it.

[00:03:38] Speaker 04:
And we argue, Your Honor, if I may.

[00:03:42] Speaker 04:
Had any meaning to talk over you?

[00:03:45] Speaker 04:
1169 conferred upon the secretary the authority to prescribe crisps for the involuntary retirement of enlisted Coast Guard members.

[00:03:53] Speaker 04:
See 1169 and Litman.

[00:03:55] Speaker 00:
Right, but in order for the answer to my question to be what I think would help you if applied, you would have to say that these crisps could proceed even in violation of 357J.

[00:04:10] Speaker 04:
No, we're not arguing that.

[00:04:12] Speaker 00:
OK, so the question is whether 357J applies or not.

[00:04:15] Speaker 04:
Certainly, certainly.

[00:04:18] Speaker 04:
Congress did not define reduction in force in 357J or Title 14, but we know what Congress meant because dictionaries speak directly to the plain language, meaning in the military context.

[00:04:35] Speaker 04:
For example, in the military context.

[00:04:39] Speaker 00:
Webster's defines a force as the troops that are assigned so this made me think this kind of argument taking a phrase splitting it into parts looking at dictionaries for the parts and then

[00:04:51] Speaker 00:
Putting it back together made me think of a 2011 Supreme Court decision, you may know it, FCC against AT&T, in which what was at issue was the phrase personal privacy in FOIA, the personal privacy exemption.

[00:05:06] Speaker 00:
And the argument was made, unanimously rejected by the Supreme Court.

[00:05:10] Speaker 00:
that the question was whether a corporation's confidentiality interest could qualify.

[00:05:16] Speaker 00:
And the argument was made, and I think accepted by the lower court, that if you fit personal privacy and you divide it up, well, persons include corporations.

[00:05:26] Speaker 00:
corporations have confidentiality interests.

[00:05:29] Speaker 00:
And the Supreme Court said, that's not what you do with a lot of phrases.

[00:05:32] Speaker 00:
That's not what you're going to do with this phrase.

[00:05:35] Speaker 00:
Why aren't you doing the same thing that the Supreme Court said there you shouldn't do?

[00:05:42] Speaker 00:
Reduction in force is a phrase that stands as a unit with an extremely well-established meaning.

[00:05:49] Speaker 04:
Well, Your Honor, we don't need to slice and dice reduction in force, because we also have in the record

[00:05:56] Speaker 04:
The Random House Dictionary defines a reduction in force in the military context.

[00:06:02] Speaker 04:
A reduction in the personnel of an armed service or the discharge of a person from military service.

[00:06:10] Speaker 04:
Now these definitions, they're all consistent and they don't say anything about military billets.

[00:06:16] Speaker 04:
They speak in terms of the troops and the military personnel that were discharged from service.

[00:06:23] Speaker 04:
And in this respect, the deaf dictionary definitions are entirely consistent with the statutory scheme.

[00:06:30] Speaker 03:
That particular definition is an informal usage of riff, right?

[00:06:35] Speaker 03:
And it's in the verb form.

[00:06:37] Speaker 04:
Well, the use of it as an acronym, yes.

[00:06:42] Speaker 03:
Right, but it says informal verb or something like that.

[00:06:45] Speaker 04:
That's right, because it's being used as an acronym.

[00:06:48] Speaker 03:
It also says especially for economy reasons, right?

[00:06:52] Speaker 03:
That's right.

[00:06:52] Speaker 03:
I didn't hear you read that off, but that's the tail-end of that definition.

[00:06:56] Speaker 03:
yes indeed and that that was a big factor here uh... as well simultaneous with the reduction in what what do we do with the fact that at the time this statue three fifty seven three fifty seven j was enacted there was already a lot of case long books especially our own case law that's did in fact provide a clear understanding of this term production force i understand it's

[00:07:24] Speaker 03:
in a different context.

[00:07:26] Speaker 03:
It's in a federal civil context, not a military context.

[00:07:30] Speaker 03:
But nevertheless, it seems like, aren't we supposed to presume that Congress is well aware of well-established understandings of terms that have been already provided a definition for and through court case law?

[00:07:46] Speaker 04:
Well, to do that, and that's sort of the way that we respectfully submit the trial court lost its way in following this court's precedence in MSPB proceedings, but all of those

[00:08:04] Speaker 04:
case, MSPB cases, involved OPM's regulations, not a congressional statement of what constitutes a reduction in force.

[00:08:14] Speaker 04:
In fact, this court in the Cross case recognized that Congress has not specified the circumstances when a reduction in force is appropriate.

[00:08:24] Speaker 04:
And so the entire landscape in those MSPB cases of discussions of reductions in force

[00:08:32] Speaker 04:
entirely is within the framework of OPM's robust regulatory scheme for reductions in force.

[00:08:41] Speaker 03:
And none of that... I don't recall our cases tying our understanding of reduction in force to a particular definition proposed in the regulations.

[00:08:54] Speaker 04:
They absolutely do, Your Honor, and in fact the

[00:09:00] Speaker 04:
None of the cases actually engages in any form of statutory construction.

[00:09:05] Speaker 04:
They're simply following the regulations.

[00:09:07] Speaker 04:
But the trial court assumes two things.

[00:09:11] Speaker 04:
It assumes that the civilian and the military spheres are the same, and they're not, and I can explain that.

[00:09:18] Speaker 04:
but also assumes that you can't have a reduction in force in the civilian sphere without an elimination of a position, which is also wrong.

[00:09:29] Speaker 04:
So let me take those two assumptions on if I could.

[00:09:34] Speaker 04:
In terms of why the two situations are different, civilian and military, unlike civilian employees,

[00:09:43] Speaker 04:
who are appointed to a position.

[00:09:46] Speaker 04:
Military members are appointed to a grade.

[00:09:49] Speaker 04:
This is why a reduction in military billets does not reduce the number of military members in the force.

[00:09:57] Speaker 04:
Those military members are in a different posture.

[00:10:00] Speaker 04:
They serve on enlistment contracts and are not tied to a particular billet.

[00:10:06] Speaker 04:
And there... Ms.

[00:10:07] Speaker 03:
Tippins, she had a particular position, didn't she?

[00:10:10] Speaker 03:
She had some kind of pizza kitchen manager position.

[00:10:13] Speaker 04:
I'm sure she served in a billet, but military members, they follow orders.

[00:10:19] Speaker 04:
They serve in a billet, and their billet assignments change all the time.

[00:10:26] Speaker 04:
It's completely different from a situation in the civil service where you are appointed to a position.

[00:10:34] Speaker 04:
That position exists in the civil service.

[00:10:36] Speaker 04:
And the civil service is comprised of those positions to which people are appointed.

[00:10:42] Speaker 03:
Another question I have is about the overall structure of Section 357.

[00:10:47] Speaker 03:
If I don't quite yet understand your understanding of 357J's reduction in force in the context of everything else that's going on in 357B through I, which is clearly providing a lot of due process to these service members before they are involuntarily retired.

[00:11:12] Speaker 03:
if we were to adopt your understanding of reduction in force it seems like there's really nothing left for three seventy three fifty seven feet through i did you the government would never need to go through all this due process uh... before retirements not quite your honor it is always true that whenever you have an exception the the rule does not apply

[00:11:42] Speaker 04:
The rule set forth in 357A through H applies unless the secretary from the very apex of military authority in the Coast Guard declares, invokes her reduction in force authority, then those other provisions do not apply.

[00:12:00] Speaker 00:
Why wouldn't the provision, Jay, just say the secretary, if it is actually the secretary, may decide not to follow A through H?

[00:12:12] Speaker 00:
What's what's the word.

[00:12:14] Speaker 00:
What's the phrase reduction in force.

[00:12:18] Speaker 04:
Well the three fifty seven.

[00:12:21] Speaker 04:
Provides that those other provisions are inapplicable when the secretary orders to say I'm picking up on.

[00:12:30] Speaker 00:
at least a version of Judge Chen's question.

[00:12:34] Speaker 00:
Under your view, why wouldn't 357J say the secretary, however, may decide involuntarily to retire the covered Coast Guard people independently of DA through H. That is a phrasing that I just used that never mentioned reduction in force.

[00:13:01] Speaker 04:
You know, I suppose Congress could have said that, but the way the scheme works is the Secretary can under 1169 involuntarily separate any enlisted member as the Secretary may prescribe.

[00:13:14] Speaker 04:
The limitations in 357A through H on that authority do not apply when

[00:13:22] Speaker 04:
the secretary orders a reduction in force.

[00:13:25] Speaker 04:
Then you're back in 1169 territory, and the secretary has broad military discretion.

[00:13:31] Speaker 04:
And that's part of the problem with this trial court's decision.

[00:13:34] Speaker 04:
The trial court intruded on the military's discretion.

[00:13:37] Speaker 04:
This court has held that courts do not review military decisions unless Congress has established tests or standards against which the court can measure the secretary's conduct.

[00:13:51] Speaker 01:
Okay, you will let you vote.

[00:13:54] Speaker 01:
Oh, yes.

[00:13:55] Speaker 01:
Thank you, your honor.

[00:14:01] Speaker 01:
Mr. Menon.

[00:14:07] Speaker 02:
Your honors, may it please support Nathan Mammon on behalf of the plaintiffs.

[00:14:11] Speaker 02:
I'd like to start, if I may, with something that Mr. Edelcheck said, that striving military members as being enlisted to contracts and not appointed positions.

[00:14:21] Speaker 02:
There's nothing that's cited in the breach for that.

[00:14:23] Speaker 02:
He doesn't identify anything today.

[00:14:25] Speaker 02:
And that's actually not correct.

[00:14:27] Speaker 02:
If you look at the way the Coast Guard is organized, like other military services,

[00:14:31] Speaker 02:
The Coast Guard is organized by a hierarchy of organizations with positions.

[00:14:35] Speaker 02:
Coast Guard Commandant has a manual that it publishes, called the Coast Guard Personnel Allowance List, that identifies that every military member will serve in a fillet or a position.

[00:14:46] Speaker 02:
And it makes sense.

[00:14:47] Speaker 02:
The military is a highly organized organization.

[00:14:49] Speaker 02:
Everyone's assigned to a position.

[00:14:51] Speaker 02:
So it's not simply correct.

[00:14:52] Speaker 00:
Is it ever getting prettier that fillet is synonymous with position for present purposes?

[00:14:57] Speaker 02:
I believe that's correct.

[00:14:59] Speaker 02:
And if there's any question in the Coast Guard, the manual is just referring to the Commandant Personnel Allowance Manual.

[00:15:08] Speaker 02:
Commandant Instruction NM 531214.

[00:15:13] Speaker 02:
Billet is identified as a personnel allowance for assignment of a military member.

[00:15:19] Speaker 02:
So no one, I think, is disputing that a bill in this context is a position.

[00:15:24] Speaker 02:
And so, and the fact that matters because the argument as I understand it is, well, you have all these enlisted and if you reduce the positions, or reduce the positions in the Coast Guard for enlisted, then you wouldn't be reducing the Coast Guard because you would still have the enlisted personnel.

[00:15:41] Speaker 02:
Except if you reduce the positions, that then provides the authority under Coast Guard 357 and under Coast Guard manuals for then deciding you no longer need those enlisted personnel.

[00:15:56] Speaker 02:
Enlisted personnel can be discharged before the end of enlistment.

[00:15:59] Speaker 02:
you can not renew enlistments.

[00:16:01] Speaker 02:
I mean, there's ways that the existence of positions does directly affect the number of people.

[00:16:08] Speaker 01:
I understand that this whole CRISPR process is a method to remove, let's say deadwood, or to create an upward

[00:16:17] Speaker 01:
advance in the path of mobility for younger officers.

[00:16:22] Speaker 01:
So you discharge some of the members that have years of experience and you clear their positions for the younger officers.

[00:16:33] Speaker 01:
Is that correct so far?

[00:16:35] Speaker 01:
For the younger listed.

[00:16:37] Speaker 01:
Let me take you where I'm headed.

[00:16:40] Speaker 01:
Why would you eliminate, for these purposes, why would you eliminate billets?

[00:16:45] Speaker 01:
If you do that, then there is no place for the younger officers to upgrade to.

[00:16:52] Speaker 02:
I'm not saying that the Coast Guard would eliminate billets, but the question I think is the protection that Congress saw fit to give to the senior enlisted individuals who served 20 years.

[00:17:03] Speaker 02:
And it's not that the Coast Guard doesn't have tools.

[00:17:06] Speaker 02:
It's not that the Coast Guard couldn't decide to use its tools within the boundaries of law to make space for promotions.

[00:17:14] Speaker 02:
But it has to follow the law that Congress said that if we have Coast Guard members with 20 years of service, they're entitled to protection.

[00:17:21] Speaker 02:
To Judge Ranney, to your point, it's the exact fact that they identified these boards as performance boards.

[00:17:30] Speaker 02:
That's the issue.

[00:17:31] Speaker 02:
Because if you look at 357, to the other judge's questions, 357A2I... I think they were not discharged of performance criteria.

[00:17:40] Speaker 02:
I would respectfully disagree with that.

[00:17:42] Speaker 01:
I mean, if you look at the instructions that the board was given... They were not discharged because they had an unknown discharge or under court martial.

[00:17:52] Speaker 01:
or anything like that.

[00:17:53] Speaker 01:
They were simply discharged because they had over 20 years of experience and I guess the Coast Guard wanted those billets for younger officers.

[00:18:01] Speaker 02:
The Coast Guard, the criteria that the Coast Guard applied for identifying who it would force to retire, it called them a performance and conduct based panel.

[00:18:13] Speaker 02:
And that's an appendix 46, appendix 59 through 60.

[00:18:16] Speaker 02:
The criteria that they used to identify who they thought should no longer serve was performance.

[00:18:22] Speaker 02:
And if you look at what 357, I believe it is B or A1 or B says,

[00:18:29] Speaker 02:
If you're not doing a reduction in force, and if you're identifying for performance reasons, then there's protections that the Congress also provides.

[00:18:39] Speaker 01:
If you're discharging on the basis of performance, then is that a criss-cross issue?

[00:18:48] Speaker 01:
I'm sorry, if you're discharging on the basis of performance... Why do we have to get into this whole question about reduction in force?

[00:18:57] Speaker 01:
Because no one is disputing that the Secretary can discharge officers or members on the basis of performance.

[00:19:07] Speaker 02:
Except they have to follow the boundaries and protections of 357.

[00:19:11] Speaker 02:
The Secretary could, the Coast Guard could have followed 357.

[00:19:15] Speaker 01:
If we find that they will not discharge on the basis of performance, then 357 will not.

[00:19:23] Speaker 01:
Your argument is that 357 will no longer apply.

[00:19:26] Speaker 02:
I don't agree with Nolan's reply because we still have a fundamental point that this was not a reduction in force.

[00:19:31] Speaker 02:
And I think that the point that I'm making about the performance criteria is an indication that this is a telltale way of knowing that this was not reducing the force because it was a performance criteria, not that we have a budgetary restriction that we can no longer fund the positions that these people are in.

[00:19:51] Speaker 02:
And so we would still have that fundamental problem

[00:19:54] Speaker 02:
that the secretary's discretion is limited by statute to being a reduction in force.

[00:20:00] Speaker 02:
And if there's not a reduction in force, the secretary does not have authority to skirt the protections that these senior enlisted personnel are entitled to.

[00:20:09] Speaker 00:
Can I ask you, I guess, sort of the same question I asked Mr. Adelstein?

[00:20:16] Speaker 00:
I did not see in the government's argument here an argument to the effect that 357 as a whole just doesn't apply, or in any event doesn't limit the 1069 or 1169.

[00:20:34] Speaker 00:
authority and that what happened here is independently valid under 1169 even if it would violate 357.

[00:20:44] Speaker 02:
I don't understand the government to have made that argument below.

[00:20:47] Speaker 02:
I don't understand either here.

[00:20:48] Speaker 02:
I mean I think the way I thought we were at a common position that

[00:20:52] Speaker 02:
1169 is a broad statute covered across the board, a lot of scenarios, but 357 is a very specific application that, you know, like the specific always trumps the general, and here we have a specific statute that trumps what general authority or government.

[00:21:11] Speaker 00:
essentially all of 357 has been, was repealed in 2016, maybe except for I, which got moved somewhere.

[00:21:18] Speaker 02:
Right, I might understand all the, you know, what we're here at issue for today is no longer in the code.

[00:21:25] Speaker 02:
It was removed in 2016.

[00:21:28] Speaker 02:
Because the Congress, the Coast Guard asked.

[00:21:30] Speaker 02:
And so, you know, this was a protection that existed.

[00:21:33] Speaker 02:
Congress saw fit to provide.

[00:21:35] Speaker 02:
And, you know, Congress, and they existed and were in effect and, you know, my clients were entitled to while they existed.

[00:21:45] Speaker 01:
Let's come back to this issue of the performance panels.

[00:21:50] Speaker 01:
So there, I understand that the 357 protections that you raised were triggered

[00:22:01] Speaker 01:
That's when 357 protections are triggered.

[00:22:06] Speaker 01:
But those are not the standards by which these personnel are reviewed.

[00:22:15] Speaker 01:
When you say that being the case, you can't argue that they're entitled to 357 protections.

[00:22:27] Speaker 02:
I would respectfully disagree with that from the standpoint of yes, 357B, I may be getting the particular paragraph wrong.

[00:22:38] Speaker 02:
Yes, it sets a standard that has to be met for forcibly retiring for performance reasons.

[00:22:45] Speaker 02:
The fact that they

[00:22:48] Speaker 02:
perhaps, and we don't think they could have met it for these people, isn't a defect in the statute.

[00:22:54] Speaker 02:
It's what the statute existed to protect.

[00:22:57] Speaker 02:
That Congress protected these individuals and said that you're not going to be able to force them to retire unless it's a substantial, significant performance issue.

[00:23:06] Speaker 01:
The problem here is that your individuals don't fall within that category of protection.

[00:23:11] Speaker 01:
I fear the

[00:23:16] Speaker 02:
I mean, I respectfully disagree with that because I think they do fall on that in the sense of if you can't prove that.

[00:23:26] Speaker 02:
They are because they have the 20 years of service and enlisted breaks.

[00:23:39] Speaker 02:
No, Your Honor, I think, as I understand the statute, the 357 protections are triggered by the years of service and grade.

[00:23:46] Speaker 02:
The standard by which the government can force retire is if they meet those performance or dereliction standards.

[00:23:54] Speaker 02:
That's a standard that the government has to meet.

[00:23:56] Speaker 02:
The protections are these people's years in service and rank.

[00:24:00] Speaker 02:
I believe that's in paragraph 8.

[00:24:07] Speaker 02:
is to say that for these people that fall in this protection of having 20 years or more of service or E7 or above, you don't get to force retire unless you meet the standard or you're doing a reduction in force.

[00:24:21] Speaker 00:
And can I just shift focus a little bit on are there statutes that use the phrase reduction in force in the civilian context or is it only a regulation?

[00:24:39] Speaker 02:
I don't know, and apologize not having that answer readily available, but there are plenty of cases that interpret or apply in civilian statutes, such as the WARN Act, such as in the federal civilian practice, where a reduction of force is issued.

[00:24:55] Speaker 02:
And the federal civilian, I believe, Title V, does use reduction of force.

[00:25:01] Speaker 02:
I think that is used there.

[00:25:03] Speaker 02:
And certainly, I believe someone mentioned that there's an extremely well-established meaning of what reduction of force has been defined across cases.

[00:25:12] Speaker 02:
And yes, there were the civilian cases.

[00:25:14] Speaker 02:
But I would submit that if you look at this court's cases involving military reductions in force, they're consistent.

[00:25:21] Speaker 02:
The government cites Alpen as one of its cases.

[00:25:24] Speaker 02:
Alpen was a reduction of individuals in the Navy.

[00:25:28] Speaker 02:
And as this court identified, the reason for that reduction was to meet future planned end strength controls.

[00:25:35] Speaker 02:
And there was a reduction in overmanned job ratings, the positions that they held.

[00:25:39] Speaker 02:
That's an example of where reduction in positions has occurred in the service.

[00:25:45] Speaker 02:
The same thing occurred in Berkeley as well.

[00:25:48] Speaker 02:
which was the case in 2002, where the reduction in force was in response to congressionally mandated reductions in the armed forces, in which the Secretary of the Air Force determined that the Secretary needed to reduce the number of positions.

[00:26:03] Speaker 02:
And so certainly, you have a consistency of interpretation amongst civilian cases, from this court, from Sixth Circuit, from others.

[00:26:10] Speaker 02:
The reduction of force is the reduction in positions.

[00:26:13] Speaker 02:
You have the application that we see

[00:26:15] Speaker 02:
from other examples in the military where, when there's been a reduction of force, it's been a reduction for positions.

[00:26:22] Speaker 02:
This was not that.

[00:26:23] Speaker 02:
There was no reduction of positions.

[00:26:25] Speaker 02:
The government admits that they were firing or retiring these fights.

[00:26:33] Speaker 00:
was to get current position holders out of the position so that those positions would be available to the other officers.

[00:26:42] Speaker 02:
Exactly.

[00:26:43] Speaker 02:
It was to keep the positions.

[00:26:46] Speaker 02:
That was the purpose.

[00:26:47] Speaker 02:
And you're not reducing positions, but you're deciding you don't want that individual in the position anymore.

[00:26:52] Speaker 02:
That's not a reduction of force.

[00:26:53] Speaker 02:
That's just firing.

[00:26:54] Speaker 02:
And maybe ways that the government could do this, the Coast Guard could do this, or maybe it's down.

[00:26:58] Speaker 02:
And it can now, since 2016.

[00:27:01] Speaker 02:
And it can now.

[00:27:02] Speaker 02:
It has procedures that can follow.

[00:27:04] Speaker 02:
But the one thing that it had to follow during this period and did not was that for these service members to fire them or force them to retire, they were entitled to enlist a personnel board, which they did not receive.

[00:27:19] Speaker 03:
what would we what should we do with that dictionary definition of leadership quoted from the military context term reduction in force which

[00:27:30] Speaker 03:
doesn't say anything about eliminating positions or anything like that.

[00:27:34] Speaker 02:
Actually, I think if you look at the full definition, it does support what we're saying.

[00:27:39] Speaker 02:
So the RIF, or two RIF, we talk about that definition, from the random house to discharge a person from the military or civil service, especially as part of the economy program.

[00:27:51] Speaker 02:
That's the last part of it.

[00:27:53] Speaker 02:
The Western's New International, active dismissing a person from the government

[00:27:58] Speaker 02:
employment for reasons of economy.

[00:28:00] Speaker 02:
All these definitions go back to the point we've been making, which is

[00:28:05] Speaker 02:
If there's reduction in positions, typically done because of budgetary controls or whatever, and you're removing the position, that is a riff.

[00:28:13] Speaker 02:
And so I think the definitions definitely don't support what the government is arguing.

[00:28:18] Speaker 02:
I think the trial court will correctly recognize those and actually indicate that consistent with the case law, a reduction of force is a reduction in position.

[00:28:31] Speaker 02:
Unless the court has further questions, thank you for the time.

[00:28:34] Speaker 02:
I'd ask that you affirm the judgment fully.

[00:28:42] Speaker 01:
Thank you, sir.

[00:28:44] Speaker 04:
Thank you, Your Honor.

[00:28:44] Speaker 04:
Just a few quick points.

[00:28:48] Speaker 04:
Council argued that the enlisted members are enlisted to billets.

[00:28:53] Speaker 04:
That's not the case.

[00:28:54] Speaker 04:
Under 10 USC 505, unlike civilian employees that are appointed to a position,

[00:29:00] Speaker 04:
Military members are appointed to a grade.

[00:29:05] Speaker 04:
Furthermore, the statutes in the civilian context do not define reduction in force as this court recognized in the Cross case.

[00:29:19] Speaker 04:
The trial court's error here was to graph judicial statements about OPM civilian regulations onto a military statute, 357J.

[00:29:28] Speaker 04:
But those MSPB cases have no relevance in the military context.

[00:29:34] Speaker 04:
The OPM regulations don't apply to the military, and Congress never made those provisions applicable to the military.

[00:29:41] Speaker 03:
Just so I understand, what is your definition, your bottom line definition for reduction in force you want us to adopt?

[00:29:47] Speaker 04:
We don't have to define all the exact contours.

[00:29:51] Speaker 03:
Is this basically firing an employee?

[00:29:55] Speaker 04:
That would certainly be included, Your Honor.

[00:29:57] Speaker 03:
And without question... If there's a clearer understanding I should be thinking about, I'd like to know.

[00:30:04] Speaker 03:
Because right now I'm just translating your position to...

[00:30:08] Speaker 03:
whenever the secretary wants to fire an employee?

[00:30:11] Speaker 04:
Well, even under OPM's regulations, which are more commonly before this court, like 5 CFR 351.201, you can have a position that's abolished, or you could have a position that's vacated, because the employee is separated and the position is left vacant.

[00:30:30] Speaker 04:
You don't have to abolish positions even in the civilian sphere.

[00:30:33] Speaker 04:
In the civilian context, reductions in force, they're basically like ice cream.

[00:30:37] Speaker 04:
They come in many flavors.

[00:30:39] Speaker 04:
You can have a reduction in people only.

[00:30:42] Speaker 04:
You could have a reduction in positions only.

[00:30:45] Speaker 04:
Or you could have both.

[00:30:47] Speaker 00:
Is it ever something in which the email's purpose is to refill the active employee slot by getting rid of the incumbent?

[00:31:00] Speaker 00:
I've never heard of it in that context.

[00:31:02] Speaker 04:
Well, here you have multiple things going on.

[00:31:06] Speaker 04:
Okay.

[00:31:06] Speaker 04:
It wasn't just that, your honor.

[00:31:08] Speaker 04:
Sure.

[00:31:09] Speaker 00:
The Chris were trying to put it, I guess, in the other direction.

[00:31:15] Speaker 00:
I aren't all of the examples where you've ever seen a reduction in force examples in which there is a slot with a

[00:31:26] Speaker 00:
fully filled active employee and the removal of that employee is for the purpose of not, at least immediately, filling that slot.

[00:31:41] Speaker 00:
Now you slot as an active employee slot as I think what's going on here, whether it's called the billet or a position or a grade,

[00:31:49] Speaker 04:
In the military, they're billets.

[00:31:53] Speaker 04:
In civil service, they're position.

[00:31:56] Speaker 00:
When and if ever does that phrase apply to an employer who is firing the incumbent in a slot

[00:32:13] Speaker 00:
with the intent of filling that same slot with another person, as opposed to economizing by not filling that slot?

[00:32:26] Speaker 04:
Your Honor, I don't know.

[00:32:27] Speaker 04:
But this was economy.

[00:32:30] Speaker 04:
This was for reasons of economy.

[00:32:34] Speaker 00:
In the sense of younger and therefore lower paying positions?

[00:32:38] Speaker 04:
It's more than that, Your Honor, if you could bear with me.

[00:32:41] Speaker 04:
At the exact same time that the Coast Guard was reducing the number of personnel in the retirement eligible workforce, they were also reducing personnel throughout the force.

[00:32:58] Speaker 04:
The billets were going down.

[00:32:59] Speaker 04:
The positions, the numbers of people were going down.

[00:33:05] Speaker 04:
the numbers of retirement eligible were going down.

[00:33:08] Speaker 04:
They were all going down because what was going on, sequestration and all the budget controls that were going on at the exact same time.

[00:33:16] Speaker 04:
This was for economy.

[00:33:21] Speaker 04:
That's where all this started, when in 2012, right before the first crest, the Coast Guard had more personnel than billets.

[00:33:32] Speaker 01:
Providing for the upward mobility of younger service members, that was not the purpose of this report?

[00:33:41] Speaker 04:
It was, but they could talk and chew gum at the same time, Your Honor.

[00:33:44] Speaker 04:
They were doing multiple things, multiple tools.

[00:33:47] Speaker 01:
Could you say that economy overwhelmed the upward mobility?

[00:33:51] Speaker 04:
That was part of the picture, Your Honor.

[00:33:55] Speaker 04:
There's a lot going on at the same time.

[00:33:57] Speaker 04:
And if I could just sum up, the Secretary properly invoked 357 as authorizing the crisps under these circumstances in contemporaneous written memos from the very apex of agency authority.

[00:34:12] Speaker 04:
And because the plain meaning of reduction in force, whatever its precise contours, in the military context, it has to include

[00:34:21] Speaker 04:
discharge of hundreds of military members.

[00:34:26] Speaker 04:
The court should vacate the judgment and remand with instructions for the trial court to enter judgment in favor of the United States.

[00:34:34] Speaker 04:
Thank you.