[00:00:00] Speaker 04:
Our next case is Coya versus the United States 24-1690.

[00:00:04] Speaker 04:
Give me your seat.

[00:00:10] Speaker 01:
Good morning, your honor.

[00:00:12] Speaker 01:
I represent Ushai Coya, who served on the USS George Washington as a nuclear mechanics mate.

[00:00:20] Speaker 04:
How do you pronounce your name again?

[00:00:22] Speaker 04:
Pardon?

[00:00:23] Speaker 04:
Coya?

[00:00:23] Speaker 01:
Coya.

[00:00:25] Speaker 01:
And the issue before the court is whether or not the Board of Corrections Naval Records erred in failing to determine unfit to perform the duties of his rating in light of his manifest sleep disorder.

[00:00:34] Speaker 01:
And let me just, I'm sure you were aware of it, his name in the service records is Jesse Washington.

[00:00:40] Speaker 02:
Can I ask you a kind of housekeeping question?

[00:00:44] Speaker 02:
Suppose we were to agree with you that the question of fitness for duty needs to go back to the board because

[00:00:58] Speaker 02:
the board didn't apply the specific standards for the nuclear machinists or something like that.

[00:01:08] Speaker 02:
That's the general idea, Kelly.

[00:01:12] Speaker 02:
What other issues would you think would also have to go back?

[00:01:21] Speaker 01:
Well, Judge Raynard, didn't you sit on the B panel on Friday?

[00:01:26] Speaker 01:
Did I say that?

[00:01:27] Speaker 01:
OK, so this case has a lot of overlap with B, but it has some twists.

[00:01:34] Speaker 01:
And the twists are hopefully what this court will resolve because there are conflicts in the Court of Federal Claims below that it would be helpful to resolve.

[00:01:45] Speaker 01:
And I'll get to those in a minute.

[00:01:46] Speaker 01:
I'm not going to spend too much on Kelly.

[00:01:50] Speaker 01:
They just didn't apply it.

[00:01:51] Speaker 01:
What do we know about what his common military tasks are?

[00:01:54] Speaker 04:
Before we go, can you tell the court, what is it that you seek?

[00:01:59] Speaker 04:
What's being sought here?

[00:02:00] Speaker 04:
What's the relief?

[00:02:02] Speaker 01:
Well, I have been trying to get the Court of Federal Claims and this court to recognize that there are certain circumstances where a sailor is unfit as a matter of law.

[00:02:18] Speaker 01:
And therefore, it is not a matter of discretion.

[00:02:20] Speaker 01:
But I have had a lot of trouble convincing judges of that.

[00:02:23] Speaker 01:
Most of the time, and I'm going to ask you to do that today.

[00:02:27] Speaker 01:
And I'm going to ask you to do that today based on the manual for the medical department.

[00:02:32] Speaker 01:
And I guess I'll jump past Kelly, since everybody seems to be.

[00:02:36] Speaker 00:
Well, can I first ask, Kelly, was that issue, was the Kelly issue raised below?

[00:02:40] Speaker 01:
Kelly was raised, well, I don't know if he cited Kelly.

[00:02:44] Speaker 01:
He may have.

[00:02:46] Speaker 01:
In my brief, I pointed out where he thinks he was preserved.

[00:02:50] Speaker 01:
He did argue that they applied the wrong disability criteria.

[00:02:54] Speaker 01:
He did argue that they didn't examine his tasks, for example.

[00:02:59] Speaker 01:
So he preserved the Kelly issue.

[00:03:01] Speaker 01:
I'm not sure if he cited Kelly by name.

[00:03:03] Speaker 00:
So the Kelly issues you see it is that the board failed to consider the specific tasks.

[00:03:08] Speaker 01:
3304 of the disability manual, as is set to list four criteria that have to be applied.

[00:03:14] Speaker 01:
Physical readiness test is not an issue.

[00:03:17] Speaker 01:
The main ones that are issue are common military tasks and deployability.

[00:03:22] Speaker 00:
And he made those arguments below.

[00:03:25] Speaker 01:
This was a pro se case, Your Honor.

[00:03:27] Speaker 01:
Remember that.

[00:03:28] Speaker 01:
Yes, he made those arguments below.

[00:03:30] Speaker 01:
But again, please, this was a pro se case.

[00:03:33] Speaker 01:
I came into this case at the reply brief stage.

[00:03:36] Speaker 01:
I do these things pro bono.

[00:03:39] Speaker 02:
At the reply brief stage in this court.

[00:03:41] Speaker 01:
In this court.

[00:03:42] Speaker 01:
I mean, I was not involved at the BCNR.

[00:03:44] Speaker 01:
I was not involved in the Court of Federal Claims.

[00:03:46] Speaker 01:
And I was not involved until the reply brief.

[00:03:55] Speaker 01:
Relevant, as I just started to say, relevant to the Kelly framework, but not addressed in B,

[00:04:01] Speaker 01:
is the issue of the effect of a medical disqualification on the unfitness analysis.

[00:04:06] Speaker 01:
Mr. Coy had a sleep disorder.

[00:04:11] Speaker 01:
I'm not sure if the government is still disputing whether it's narcolepsy, the PEB, which

[00:04:18] Speaker 01:
You know, it wasn't even a properly constituted P.E.B.

[00:04:20] Speaker 01:
They were told to go get it by the board to get an autopsy test.

[00:04:23] Speaker 01:
They didn't get an autopsy test.

[00:04:25] Speaker 01:
P.E.B.

[00:04:27] Speaker 01:
is physical evaluation board.

[00:04:29] Speaker 01:
Physical evaluation board.

[00:04:30] Speaker 01:
You're much more familiar with the acronyms.

[00:04:32] Speaker 01:
Try to avoid them, please.

[00:04:34] Speaker 01:
OK.

[00:04:35] Speaker 01:
OK.

[00:04:35] Speaker 01:
But whatever he had, it was a sleep disorder.

[00:04:38] Speaker 01:
He had 20 witness statements in the records saying he was falling asleep on the job.

[00:04:43] Speaker 01:
And the manual of the medical department

[00:04:45] Speaker 01:
which the government cites multiple times in its brief, and I believe it concedes is a binding on the Navy, states that in order to work in the nuclear field, you have to have, quote, a very high degree of alertness.

[00:04:57] Speaker 01:
And sleep disorders are disqualifying if they, quote, interfere with safety and reliability or foster a perception of impairment.

[00:05:06] Speaker 01:
So what I would ask the court in response to go back and what the relief is

[00:05:14] Speaker 01:
is I think that it is clear from the record that he is medically disqualified from being a nuclear mechanics mate.

[00:05:23] Speaker 01:
And I would ask the court to say, this is no longer an issue for the board to go back and exercise its discretion.

[00:05:30] Speaker 01:
We can look at the manual.

[00:05:31] Speaker 01:
We can look at what's conceded on the facts.

[00:05:34] Speaker 01:
And we can determine that it would be abusive discretion to say he is anything but unfit.

[00:05:39] Speaker 01:
Because if you are medically disqualified from doing your rating,

[00:05:43] Speaker 01:
you are unfit.

[00:05:44] Speaker 01:
That's the issue that we're trying to get the board to do.

[00:05:47] Speaker 01:
If you're not willing to go that far, then we next go to the issue of what's in the manual, which is the issue of, does he have a condition that is a decided risk to his health or the welfare of other members?

[00:06:04] Speaker 01:
This is in 3302.

[00:06:05] Speaker 01:
3302 was not discussed in Kelly, and there is a split

[00:06:10] Speaker 01:
in the Court of Federal Claims on whether this provision is mandatory, that is to say, dispositive, or whether or not it is permissive.

[00:06:19] Speaker 01:
Judge Davis says it's permissive.

[00:06:22] Speaker 01:
In other words, it doesn't matter if even if your continued service would be a risk to your health or endanger the welfare of others, that's not controlling.

[00:06:32] Speaker 01:
Judge Kaplan says it is even those 3302 uses the terms may consider.

[00:06:39] Speaker 01:
And her opinion in Hasse explains why that has to be so.

[00:06:45] Speaker 01:
So again, to go back to the very beginning, one of the things that this court can do, which would be very helpful in its appellate role, is to clarify, is 3302 mandatory and dispositive, or is 3302 permissive and non-dispositive?

[00:07:01] Speaker 01:
Now I'm going to go to liberal consideration.

[00:07:03] Speaker 01:
Now, why, that was a long argument, Judge Raina.

[00:07:06] Speaker 01:
That went on for an hour.

[00:07:09] Speaker 01:
It was the only argument of the day, if I recall.

[00:07:12] Speaker 01:
So don't expect to see it.

[00:07:13] Speaker 01:
I should hope.

[00:07:15] Speaker 01:
They won the prize.

[00:07:16] Speaker 01:
And a lot of that time was spent on liberal consideration.

[00:07:18] Speaker 04:
They're still suffering from it, too.

[00:07:20] Speaker 01:
Pardon?

[00:07:20] Speaker 04:
They're still suffering from it, too.

[00:07:23] Speaker 01:
So what's different here with respect to liberal consideration?

[00:07:27] Speaker 01:
First.

[00:07:27] Speaker 01:
What is liberal consideration in your view?

[00:07:30] Speaker 01:
You asked for it.

[00:07:31] Speaker 01:
I didn't know the names of the judges.

[00:07:32] Speaker 01:
I looked them up, but I don't know who was asking.

[00:07:35] Speaker 01:
But that was a bicentral question in B, OK?

[00:07:38] Speaker 01:
Now, first of all, we're not dealing with a statutory liberal consideration.

[00:07:42] Speaker 01:
He did not have PTSD.

[00:07:43] Speaker 01:
He did not need to be TBI.

[00:07:45] Speaker 01:
This is purely Curda.

[00:07:48] Speaker 01:
And I don't think you got a satisfactory answer in the B argument, other than the fact that everybody agrees it's a liberal, lessened evidentiary standard.

[00:07:58] Speaker 01:
Well, Curda tells you something.

[00:08:00] Speaker 01:
Curda tells you that if you have, like here, with a VA diagnosis something, and VA says it existed during service,

[00:08:09] Speaker 01:
CURTA member says that's persuasive evidence.

[00:08:17] Speaker 00:
So you have a whole list of things.

[00:08:21] Speaker 00:
Isn't CURTA limited to mental health situations?

[00:08:26] Speaker 01:
That's the second question, how this distaste differentiates from B. The government is saying that narcolepsy is not a mental health disorder.

[00:08:33] Speaker 01:
We're saying, why not?

[00:08:35] Speaker 01:
I mean, it affects your behavior.

[00:08:37] Speaker 01:
Is it any lesser mental health disorder than traumatic brain disorder?

[00:08:42] Speaker 00:
I don't know the answer to you.

[00:08:46] Speaker 01:
And the board didn't answer that question.

[00:08:47] Speaker 01:
The board said, well, you got an honorable discharge.

[00:08:51] Speaker 00:
Hold on.

[00:08:51] Speaker 00:
Hold on.

[00:08:52] Speaker 00:
So is the argument I should remand for the board or the court of federal claims to decide

[00:08:58] Speaker 00:
if narcolepsy is a mental health condition?

[00:09:01] Speaker 00:
Or you could decide it.

[00:09:02] Speaker 00:
It's a question of law.

[00:09:03] Speaker 00:
What would I look to?

[00:09:04] Speaker 00:
Pardon?

[00:09:05] Speaker 00:
What would I look to to decide that question?

[00:09:08] Speaker 01:
That's why everybody spent like 45 minutes in B trying to figure that out.

[00:09:15] Speaker 01:
I guess you would look to whether or not the medical condition affects your behavior as opposed to like

[00:09:27] Speaker 01:
Does it affect, is it impair, like a broken, it's not a broken arm.

[00:09:32] Speaker 01:
It's not an infection.

[00:09:34] Speaker 01:
It's something that affects how you behave on a day-to-day basis, like depression affects how you behave, or a traumatic brain injury, how quickly you make decisions.

[00:09:47] Speaker 01:
It's sort of analogous, in fact, to the kind of impairments you see with a traumatic brain injury.

[00:09:52] Speaker 01:
The lack of concentration.

[00:09:55] Speaker 01:
and the like.

[00:09:55] Speaker 01:
I mean, you can send it back for a more thoughtful analysis by the Court of Federal Claims, or you can try to decide it yourself.

[00:10:01] Speaker 02:
Can I ask, is there also a question about, I guess what I'm thinking about is the limitation of what's our case that begins with D?

[00:10:14] Speaker 01:
Doyan?

[00:10:15] Speaker 02:
Doyan, sorry, yes.

[00:10:19] Speaker 02:
And after Doyan came down, the secretary, the fellow with the V name, who is this?

[00:10:27] Speaker 02:
The Vazirani member.

[00:10:28] Speaker 02:
Vazirani.

[00:10:29] Speaker 02:
And that says liberal construction applies to a request for upgrading a discharge not to an issue like this fitness issue.

[00:10:47] Speaker 02:
That would also be a question.

[00:10:50] Speaker 02:
Is that a question also here?

[00:10:52] Speaker 01:
No.

[00:10:53] Speaker 01:
Why isn't it?

[00:10:54] Speaker 01:
Because Vazirani is limited to three things, PTSD, TBI, and military sexual trauma.

[00:11:00] Speaker 01:
He has neither of those.

[00:11:01] Speaker 01:
So technically, it doesn't apply.

[00:11:03] Speaker 01:
That's the first thing.

[00:11:05] Speaker 01:
The second thing, again, another issue for this court, if it wants to venture down the road, is in, I think it's Williams versus the United States, or is it White?

[00:11:14] Speaker 01:
Judge Bonilla held it in the Court of Federal Claims held that the Vassarani memorandum was unlawful.

[00:11:20] Speaker 01:
It's not explained.

[00:11:21] Speaker 01:
It seems to be on its face and consistent with Doyon.

[00:11:26] Speaker 01:
I don't know how to pronounce that case.

[00:11:32] Speaker 00:
But what the board said is- It seems to me that Vazirani was trying to follow up on CURTA, and its expressed limitation to those conditions suggests that CURTA doesn't apply more broadly than those conditions either.

[00:11:45] Speaker 00:
Why would that be an incorrect reading?

[00:11:47] Speaker 01:
I think the Vazirani memorandum- I think the Vazirani memorandum, whatever it says, is unlawful.

[00:12:00] Speaker 01:
that not only it doesn't apply here, and if it does apply here.

[00:12:04] Speaker 01:
Did you make that argument in the gray brief?

[00:12:06] Speaker 01:
Well, what I said is we were seeking it on step one.

[00:12:09] Speaker 01:
And since I filed that brief, we've had three cases in the United States Claims Court, White, Thomas, and Jean-Pierre, all deciding whether or not it's on the unfitness issue also.

[00:12:23] Speaker 01:
So in light of the change in the law and the need for clarification on the issue, I would urge the court to decide if waivers, of course,

[00:12:30] Speaker 01:
discretionary with the court.

[00:12:31] Speaker 01:
This is a pro se case.

[00:12:33] Speaker 01:
And we do need to have that decided.

[00:12:34] Speaker 01:
Maybe you'll decide it in B, although everybody seemed to concede that the Vazirati memorandum wasn't an issue in B. Although, if you go in favor of Doyon being construed as extending to the unfitness prong, it's effectively going to knock out the Vazirati, because it's a statutory issue.

[00:12:56] Speaker 04:
You're well into your rebuttal time.

[00:12:59] Speaker 04:
Pardon?

[00:13:00] Speaker 04:
You're well into your rebuttal time.

[00:13:01] Speaker 04:
Would you like to reserve the two minutes you've got left?

[00:13:06] Speaker 01:
I do want to talk about the issue of a due profit of a hearing.

[00:13:09] Speaker 01:
All right.

[00:13:11] Speaker 01:
Most quadruples that cuticate government benefits cases allow face-to-face personal hearings.

[00:13:16] Speaker 01:
Social Security, Departments of Veterans Affairs, unemployment benefit compensation.

[00:13:23] Speaker 01:
The board says it will allow such hearings in its regulations.

[00:13:26] Speaker 01:
and on its website.

[00:13:28] Speaker 01:
A veteran has a better chance of being struck by lightning during his lifetime than getting a hearing from the board.

[00:13:33] Speaker 01:
They just don't grant them.

[00:13:36] Speaker 01:
They've granted two since 2015.

[00:13:37] Speaker 01:
Now, you're going to ask me, where is that in the record?

[00:13:40] Speaker 01:
And I can't point you in the record because, well, I put it on my website, shinealightllc.net.

[00:13:46] Speaker 01:
I got a Florida Freedom of Information Act question.

[00:13:48] Speaker 01:
I asked them, how many hearings have you held?

[00:13:50] Speaker 01:
And they said two.

[00:13:51] Speaker 01:
You could also ask, if you have a student, to go through all the places that have been in this court.

[00:13:56] Speaker 04:
I think you're outside of your main argument.

[00:14:00] Speaker 04:
So let's hear from the other side, and I'll restore two minutes of time for rebuttal.

[00:14:05] Speaker 01:
I guess I have a minute for rebuttal.

[00:14:07] Speaker 04:
I said I'd restore two minutes for rebuttal.

[00:14:09] Speaker 01:
You'll give me two minutes for rebuttal.

[00:14:11] Speaker 01:
Thank you, Your Honor.

[00:14:16] Speaker 04:
Counselor Moses.

[00:14:18] Speaker 05:
Good morning, Your Honors, and may it please the court.

[00:14:20] Speaker 05:
Excuse me.

[00:14:24] Speaker 05:
I do want to address a few of the questions that were raised.

[00:14:26] Speaker 05:
One in particular is the standard that's applicable here and that the board applied.

[00:14:31] Speaker 05:
And as section 3301 of SECNAV instruction 1854 E says, again that's section 3301, the sole standard.

[00:14:45] Speaker 05:
to be used in making determinations of physical disability as a basis for retirement or separation is unfitnessed to perform the duties of office, grade, rank, or rating."

[00:14:57] Speaker 05:
And it goes on.

[00:14:59] Speaker 05:
As well, section 3307 says,

[00:15:05] Speaker 05:
that standards and criteria not normally to be used as the sole basis for determining fitness or unfitness would be deployability, physical fitness test, or special qualification.

[00:15:20] Speaker 05:
As the board observed at supplemental appendix page 769, this case has received far more thorough review than most service members received.

[00:15:32] Speaker 05:
through the disability evaluation system process, in addition to a physical evaluation board review.

[00:15:40] Speaker 05:
Mr. Coyer, also his case has been reviewed by the Corrections Board three times.

[00:15:46] Speaker 02:
Can I just ask for you to focus on this question, whether the particular standards for the nuclear machinists or machinists or whatever it is.

[00:16:00] Speaker 02:
I don't remember that the board attended to those particular standards.

[00:16:05] Speaker 02:
And if it didn't, why isn't that a problem?

[00:16:10] Speaker 02:
Mr. Coy has gotten more attention than most veterans.

[00:16:15] Speaker 02:
I understand, Your Honor.

[00:16:17] Speaker 05:
I don't believe that the board specifically called out the explicit criteria or the standards for that particular job duty.

[00:16:29] Speaker 05:
But what this court did say in Hartman v. Nicholson at Pinsite 1315 is that the absence of this explicit language is not necessarily grounds for reversal.

[00:16:39] Speaker 05:
What I'll also mention is that although the court didn't explicitly call out any particular layout that perhaps the job duties itself, it did reference that the physical evaluation board had reviewed the last three performance evaluations at supplemental appendix page 761 to 62.

[00:17:04] Speaker 05:
And on those performance evaluation sheets,

[00:17:09] Speaker 05:
Your Honor, one of which is that supplemental appendix, page 639.

[00:17:16] Speaker 05:
What we have here is a description of Mr. Coya's job duties.

[00:17:22] Speaker 05:
And it goes into lots of information about his performance as it relates specifically to those job duties.

[00:17:31] Speaker 05:
So these factors were considered, just perhaps not

[00:17:35] Speaker 05:
tied in a bow in the way that Mr. Coyah would have liked to have seen them.

[00:17:40] Speaker 00:
And how is that adequate under Kelly?

[00:17:43] Speaker 05:
Well, what Kelly says, Your Honor, at Penn Site 869 is that all relevant criteria should be discussed.

[00:17:50] Speaker 05:
And the relevant criteria here, again, the sole standard to be applied is whether Mr. Coyah was medically fit for duty.

[00:18:00] Speaker 05:
And time and time again, the answer has been yes.

[00:18:04] Speaker 05:
He was there was no limitations on his duty.

[00:18:08] Speaker 05:
And the board, even for the purpose of his analysis, assumed that Mr. Coya, they gave him the benefit of the doubt, I guess you could say, that he had narcolepsy.

[00:18:19] Speaker 05:
And still determined that his narcolepsy, even assuming that he had that in service, had no bearing on the misconduct, which was that he falsified he and another sailor

[00:18:33] Speaker 05:
falsified log entries What about deployability?

[00:18:38] Speaker 00:
Is there any discussion of that?

[00:18:39] Speaker 00:
And if not, why isn't that a problem?

[00:18:42] Speaker 05:
There is no specific mention of deployability, and that is a new issue that has been raised.

[00:18:49] Speaker 05:
Are you saying it's waived?

[00:18:51] Speaker 05:
Yes, Your Honor.

[00:18:52] Speaker 05:
And to the extent the court does not agree with that, again, there was no medical professional that ever placed any restrictions whatsoever on Mr. Coya's duties while he was on active duty.

[00:19:04] Speaker 05:
And this does suggest that he was actually deployable in the sense he could perform

[00:19:10] Speaker 05:
any job.

[00:19:11] Speaker 05:
There were no restrictions whatsoever on him.

[00:19:14] Speaker 05:
And of course, non-deployability would require medical determination.

[00:19:18] Speaker 05:
And there is no evidence of that in the record here.

[00:19:23] Speaker 05:
Indeed, it's hard to imagine how the board could have more liberally considered Mr. Coyas' claim.

[00:19:32] Speaker 05:
And to the questions about whether a liberal consideration even applies here, we don't believe that it does.

[00:19:40] Speaker 00:
Believe that it's irrelevant.

[00:19:42] Speaker 00:
Why doesn't it?

[00:19:47] Speaker 05:
The whole purpose of the liberal consideration policy is to mitigate or upgrade unfavorable discharges.

[00:19:58] Speaker 05:
And what we have here is, particularly in this case, as you can see at supplemental appendix page 628, which is Mr. Coya's DD214,

[00:20:10] Speaker 05:
He has the highest discharge characterization, honorable.

[00:20:15] Speaker 05:
His narrative reason is reduction in force.

[00:20:18] Speaker 05:
There's nothing stigmatizing about that.

[00:20:20] Speaker 05:
There's really nothing to mitigate here.

[00:20:22] Speaker 05:
And also, his re-enlistment code, which was later changed, he has a preferred re-enlistment.

[00:20:32] Speaker 05:
So there's nothing stigmatizing about his discharge.

[00:20:40] Speaker 05:
It's really unclear here what he's requesting that the board would even do on remand.

[00:20:46] Speaker 05:
Because again, the inquiry is whether he was fit for duty.

[00:20:50] Speaker 05:
And in a way, using liberal consideration really doesn't get him anywhere.

[00:20:55] Speaker 05:
It's not like Kelly, where there was stigmatizing information on Mr. Kelly's DD214, and liberal consideration

[00:21:07] Speaker 05:
if applied, perhaps could have opened the door for him to have his fitness determination reconsidered.

[00:21:16] Speaker 05:
So that's not the case here.

[00:21:18] Speaker 00:
Does the government have a view on putting all that aside, whether the Kurtz memo or the Vazirani memo would even apply to the condition of narcolepsy?

[00:21:29] Speaker 05:
We said in our brief, Your Honor, we don't believe that it does.

[00:21:35] Speaker 05:
There's nothing in the record that reflects that narcolepsy is a mental health disorder.

[00:21:40] Speaker 05:
And we don't believe that's within the spirit of the CURTA memo at all.

[00:21:44] Speaker 05:
If the court has no further questions, we ask.

[00:21:46] Speaker 00:
I just have one more.

[00:21:47] Speaker 00:
Sorry.

[00:21:47] Speaker 00:
The hearing.

[00:21:48] Speaker 00:
The hearing argument.

[00:21:52] Speaker 00:
I'm not sure if you think that request is waived.

[00:21:56] Speaker 00:
But Kelly does talk about having a protected property interest.

[00:22:00] Speaker 00:
at stake in these situations.

[00:22:03] Speaker 00:
Why is he not entitled under due process to a hearing?

[00:22:08] Speaker 05:
Well, we do believe, Your Honor, that that is waived.

[00:22:11] Speaker 05:
And Mr. Coyah concedes at his reply brief at 21 that he's not entitled to it.

[00:22:18] Speaker 05:
That is a discretionary decision of the board.

[00:22:20] Speaker 05:
This is not an adversarial proceeding.

[00:22:23] Speaker 05:
And in fact, when it comes to fitness, there's a presumption of fitness.

[00:22:27] Speaker 05:
So again, there's a mismatch here between

[00:22:30] Speaker 05:
liberal consideration world, and fitness.

[00:22:33] Speaker 05:
Because most military service members want to be found fit for duty.

[00:22:40] Speaker 05:
Even if they have some serious injury, they want to continue to go on to serve.

[00:22:45] Speaker 05:
So again, there's a mismatch here.

[00:22:47] Speaker 05:
And Mr. Coya's case has received a robust evaluation.

[00:22:54] Speaker 04:
I have no further.

[00:22:54] Speaker 05:
We respectfully requested the court affirm the trial court's decision.

[00:22:59] Speaker 04:
Thank you.

[00:22:59] Speaker 04:
Thank you, Counselor.

[00:23:04] Speaker 04:
You got two minutes.

[00:23:06] Speaker 01:
Thank you, Your Honor.

[00:23:07] Speaker 01:
Just six here.

[00:23:07] Speaker 01:
Okay.

[00:23:10] Speaker 04:
This is pretty much why we need... Just a second.

[00:23:16] Speaker 04:
He needs two minutes.

[00:23:17] Speaker 04:
Put him down.

[00:23:17] Speaker 01:
Thank you very much.

[00:23:20] Speaker 01:
So this pretty much illustrates why we need a hearing.

[00:23:24] Speaker 01:
Can you just go back to what do you think that

[00:23:31] Speaker 02:
Formal hearing aside.

[00:23:33] Speaker 02:
I want you to put that aside.

[00:23:35] Speaker 02:
What is it that the board would do?

[00:23:39] Speaker 02:
that it hasn't already done if we said you have a Kelly problem here in the sense that you didn't invert to the full set of the regulatory standards.

[00:23:58] Speaker 01:
Just that.

[00:23:59] Speaker 01:
You would look at what his common military tasks are, all right?

[00:24:03] Speaker 01:
For example, one of his common military tasks was to regulate the steam that went to the catapults.

[00:24:10] Speaker 01:
Another of his common military tasks was to regulate the steam that turned the propellers.

[00:24:16] Speaker 01:
A third one was to regulate the water that went into the nuclear reactor.

[00:24:21] Speaker 01:
All of these things are things that you probably don't want somebody who falls asleep on the job doing.

[00:24:28] Speaker 01:
That's what we needed to have in the record.

[00:24:31] Speaker 01:
the kind of granularity that you think is insufficient.

[00:24:38] Speaker 01:
Saying that he worked in the propulsion room and did a good job doesn't tell you why his narcolepsy was a danger to the ship

[00:24:47] Speaker 01:
I lived in Harrisburg at the time of Three Mile Island.

[00:24:52] Speaker 02:
But repeated good job over the period might tell you something.

[00:24:58] Speaker 01:
Well, so did 20 witness statements, which the board found credible, that say he fell asleep on the job constantly.

[00:25:07] Speaker 01:
20.

[00:25:07] Speaker 01:
And I said in my brief, I have a difficulty reconciling his performance evaluations with

[00:25:13] Speaker 01:
Those 20 witness statements.

[00:25:15] Speaker 01:
Now, as somebody who worked in government and did performance valuations, maybe I don't have such much difficulty reconciling, because I know how they figured it, how they filled out.

[00:25:23] Speaker 01:
But yeah, I mean, these witness statements were credible, and the board did not dispute it.

[00:25:31] Speaker 01:
And the board also did not dispute that he performed critical functions, which I just described to you, propellers, nuclear reactor, water, and catapults.

[00:25:42] Speaker 01:
I'm out of time.

[00:25:43] Speaker 01:
Well, I've got 25 seconds.

[00:25:45] Speaker 03:
Do you want to conclude?

[00:25:46] Speaker 03:
Pardon?

[00:25:46] Speaker 03:
Can you conclude?

[00:25:48] Speaker 01:
Well, I guess my conclusion was I respectfully press that the court reverse.

[00:25:53] Speaker 01:
Thank you for the time.

[00:25:55] Speaker 03:
Thank you.