[00:00:02] Speaker 02: Good morning, Your Honors. [00:00:03] Speaker 02: Michael LaVetter and my colleague Yu Chen Han on behalf of Plaintiff Appellant, Jason Rawls. [00:00:08] Speaker 05: May I proceed? [00:00:09] Speaker 05: And again, thank you. [00:00:09] Speaker 05: I believe you're doing this pro bono. [00:00:11] Speaker 05: Yes, Your Honors. [00:00:11] Speaker 05: Thanks again for stepping up. [00:00:13] Speaker 05: Really appreciate it. [00:00:13] Speaker 05: Yes, Your Honors. [00:00:15] Speaker 02: Your Honors, Mr. Rawls joined the U.S. [00:00:18] Speaker 02: Army in the year 2000. [00:00:20] Speaker 02: Per the military's own doctors, Mr. Rawls experienced 100% service-related schizophrenia while he was serving in the U.S. [00:00:28] Speaker 02: Army. [00:00:29] Speaker 02: As a result of that schizophrenia, Mr. Walls went AWOL. [00:00:34] Speaker 02: To avoid prosecution, he left the Army in the year 2001 with an other than honorable discharge. [00:00:40] Speaker 02: This wrongly characterized discharge continues to harm Mr. Walls to this day in two ways. [00:00:46] Speaker 02: At least, first, he cannot obtain his full veteran's benefits. [00:00:51] Speaker 02: Secondly, he is required to explain his discharge to the public, including to potential employers. [00:00:58] Speaker 02: Mr. Rawls has repeatedly sought to correct his military record and upgrade his discharge to honorable to accurately reflect his military service. [00:01:07] Speaker 02: The latest effort was a request filed in 2018 with the Army Board for reconsideration, which the Army denied. [00:01:16] Speaker 02: This lawsuit challenges that denial. [00:01:19] Speaker 02: We filed this lawsuit in 2023 within the six-year statute of limitations under the Administrative Procedures Act. [00:01:26] Speaker 01: Well, it was within six years of the denial of the recon. [00:01:30] Speaker 02: Yes, Your Honor. [00:01:30] Speaker 02: That's correct. [00:01:31] Speaker 02: As Your Honors are aware, the District Court disagreed. [00:01:35] Speaker 02: It held that the 2018 request itself was untimely, even though the Army did not hold it to be untimely. [00:01:43] Speaker 01: Well, the Army said it looks like it's untimely, but we're going to talk about the merits anyway. [00:01:48] Speaker 02: Correct, Your Honor, that's right. [00:01:50] Speaker 02: And under its own regulations, if it was untimely, it was to send it back and tell them that it wasn't. [00:02:01] Speaker 02: 2018 considering the 2018 decision is untimely the district court looked to the 2015 Decision which was a previous reconsideration attempt and started the six-year statute limitations under the APA under that decision Therefore it dismissed the lawsuit as barred by the central limitations. [00:02:20] Speaker 02: This is incorrect for two reasons and [00:02:23] Speaker 02: First, the 2018 request was not untimely. [00:02:27] Speaker 02: Congress amended section 1552 in 2016, which superseded Army regulations, creating a new right for veterans to present material not previously considered by an Army board at any time. [00:02:42] Speaker 01: But in order for that argument to succeed, the statute would have had to have been retroactive. [00:02:49] Speaker 02: Your Honor, we don't agree with that. [00:02:50] Speaker 01: Why not? [00:02:52] Speaker 02: Section 1552 essentially created a new right. [00:02:56] Speaker 02: In 2016, it stated that members of the military, veterans appealing to the board may proceed with new evidence [00:03:06] Speaker 02: not previously presented to or considered by a board, and the board shall consider that request no matter when filed. [00:03:14] Speaker 02: Mr. Rawls filed the 2018 reconsideration request after the amendment of the statute. [00:03:20] Speaker 02: That's not a retroactive application. [00:03:22] Speaker 02: This new right was created by Congress. [00:03:24] Speaker 02: They had the right to do that and supersede the regulation. [00:03:26] Speaker 01: So in your view, that statute not only applied to your client whose denial was in [00:03:35] Speaker 01: and it would have applied to somebody whose denial was in 1985. [00:03:44] Speaker 02: If they applied for a request for reconsideration, yes. [00:03:48] Speaker 01: And it would bring back what had happened in 1985 or 1975 or 1965? [00:03:53] Speaker 02: It would create a new right for them to file a request for reconsideration post statute. [00:04:00] Speaker 02: I don't think it would allow them to reopen a request filed in 1985 without a new request based on new information. [00:04:08] Speaker 02: But yes, and in announcing this policy, [00:04:13] Speaker 02: The military was clear. [00:04:15] Speaker 02: They issued the CURTA memorandum in 2017, which issued a clarifying guidance for this statute. [00:04:21] Speaker 02: And in announcing that policy, the Department of Defense issued a press release that invited veterans from any era to resubmit reconsideration. [00:04:30] Speaker 02: The Army understood what this meant. [00:04:32] Speaker 02: And in fact, in that press release and in the memo, it has provisions for veterans [00:04:37] Speaker 01: seeking reconsideration within the past 15 years or previously to past 50 so they understood if I understand your argument correctly even if we agreed with you that as to the applicability of 1552 there would still have to be what would have been what would be considered new information in the filing [00:04:58] Speaker 02: That's correct, Your Honor. [00:04:59] Speaker 02: I don't believe there's any dispute. [00:05:00] Speaker 02: At this stage of the proceedings, I don't believe there's any dispute that there's new material in the file. [00:05:04] Speaker 01: Well, I mean, there's no dispute that you call it new material. [00:05:08] Speaker 01: Correct, Your Honor. [00:05:10] Speaker 02: And the district court didn't rise to that issue. [00:05:12] Speaker 01: But we're looking at this de novo. [00:05:15] Speaker 02: That's correct, Your Honor. [00:05:16] Speaker 02: But I think the new material, I think the Army doesn't dispute that this is new material. [00:05:23] Speaker 02: The application in 2018 [00:05:27] Speaker 02: specifically included new material, including that Mr. Rawls was treated at Camp Pendleton for schizophrenia while he was listed in the Army. [00:05:35] Speaker 02: That's at ER 144 and 151. [00:05:38] Speaker 02: Also, that his family made multiple attempts to contact the Army and inform them of his condition before he was discharged. [00:05:47] Speaker 02: That's at ER 145. [00:05:49] Speaker 02: And the Army, in its 2020 decision, in the record of decision, confirms that Mr. Rall submitted this new material. [00:05:57] Speaker 02: It doesn't pass judgment on to whether it's opinion, if that's new material or not, but it makes it clear in the record that this material was submitted and was considered by the board in 2020 when it reached this decision. [00:06:08] Speaker 02: And that's ER 129. [00:06:09] Speaker 05: So Council, if I could ask about that language, no matter when filed. [00:06:13] Speaker 05: Yes. [00:06:14] Speaker 05: We looked to see if any other statute, [00:06:18] Speaker 05: had ever used that language before in terms of a statute of limitations. [00:06:22] Speaker 05: And we couldn't find any other examples of that. [00:06:25] Speaker 05: I was curious, in your work on this case, have you seen that language used in any other statute? [00:06:30] Speaker 02: I agree, Your Honor. [00:06:30] Speaker 02: This is unusual. [00:06:31] Speaker 02: I think that's good for your client that it's unusual. [00:06:34] Speaker 02: But I'm just trying to, is it unusual? [00:06:36] Speaker 02: I do. [00:06:37] Speaker 02: And I think it is unusual. [00:06:38] Speaker 02: And we actually tried to delve into the legislative history to see what was the genesis of that. [00:06:43] Speaker 02: We couldn't find anything. [00:06:46] Speaker 02: In its opposition, both sides look to other circuits to analogize as to how this case, there's the Avery decision, which was an NDCAL decision, which in turn referenced the Davis decision, which was a Sixth Circuit, and the Green Court, which was a Third Circuit decision. [00:07:02] Speaker 02: And in the Green case, they considered facts basically on all fours with hours where an applicant submitted an application [00:07:10] Speaker 02: Where there was new information, now this is pre-1552, I understand that, with new information and the district court said that that restarted the statute of limitations under the APA. [00:07:19] Speaker 02: Now, I have no... [00:07:22] Speaker 02: case or legislative history that links those two together, but it certainly is possible that this new legislation was in some way in a reference to that, that they opened this up to allowing them to consider it no matter when filed in order to redress past wrongs. [00:07:37] Speaker 02: I think it's a little bit of an unusual situation in that [00:07:43] Speaker 02: these discharges reflect circumstances that change over time. [00:07:49] Speaker 02: Different conditions about what qualifies and disqualifies someone for military service, and those change over time. [00:07:54] Speaker 02: And it's plausible. [00:07:56] Speaker 02: I have no direct citation that that is a reference to those changing norms. [00:08:00] Speaker 02: But I agree with Your Honor. [00:08:01] Speaker 02: This is not language we've seen otherwise. [00:08:04] Speaker 02: But it is clear from the plain reading of the statute that this says no matter when filed. [00:08:09] Speaker 02: There are no temporal restrictions on that. [00:08:12] Speaker 05: But the limiting principle you would say is, but it still has to be in the context of a motion for reconsideration. [00:08:18] Speaker 05: It can't just simply be filing the same thing over and over again. [00:08:20] Speaker 05: You have to actually say, no, here's why this is different. [00:08:23] Speaker 02: Correct. [00:08:23] Speaker 02: And if we look at some of these previous decisions, we have seen evidence where the military board has looked at this and said, this is new material. [00:08:31] Speaker 02: This is not new material. [00:08:32] Speaker 02: It's not carte blanche. [00:08:35] Speaker 02: But in the context where you submit new materials for the board to consider, it should consider it. [00:08:42] Speaker 02: Now, independently, if the court does not understand 1552 to grant this unlimited time right, Mr. Rawls' application is still timely under the equitable tolling argument. [00:08:54] Speaker 02: Mr. Rawls submitted his request in 2018. [00:08:59] Speaker 02: while the six-year statute of limitations was still open even under the 2015 decision that the district court looked at. [00:09:05] Speaker 02: That statute is equitably told while the Army considered his request and while Mr. Roles waited for that decision. [00:09:13] Speaker 02: If the rule is adopted that the government advocates and the district court seems to have adopted, it would require Mr. Rawls to proceed in two forums. [00:09:22] Speaker 02: He has an application he submitted in 2018, which the Army accepted, did not return to him. [00:09:28] Speaker 02: And under this rule, he would have then had to file a district court challenge while this is pending. [00:09:35] Speaker 02: That clearly conflicts with the APA's requirement that he exhaust its administrative remedies. [00:09:44] Speaker 02: As we mentioned under 1552, this new right was created by Congress, clearly without. [00:09:50] Speaker 01: So if I understand what you're saying correctly is that seriatim recon motions would toll the statute of limitations forever. [00:10:05] Speaker 02: If it was based on new material not previously presented or considered by the board, that seems to be correct. [00:10:12] Speaker 01: though you could just keep filing them. [00:10:15] Speaker 01: But aren't you saying also that as long as it's under consideration, it tolls it? [00:10:21] Speaker 02: If it's under consideration by the military, I don't think in this case, again, this is an equitable tolling argument. [00:10:27] Speaker 02: I don't think that's a carte blanche rule that that necessarily would toll it. [00:10:31] Speaker 02: But in this case, the Army's regulations state that if an application is submitted and the Army does not consider it untimely, they are to return it [00:10:41] Speaker 02: without action, and quote, advise that the next remedy is an appeal to a court of appropriate jurisdiction. [00:10:48] Speaker 02: If you look at the 2018 request decided in 2020, not communicated to Mr. Rawls until 2021, that states this is a final action. [00:10:58] Speaker 02: We will not consider it. [00:10:59] Speaker 02: And even in that letter, this is [00:11:02] Speaker 02: at ER 129, it specifically states, we will not reconsider this request unless you present us with new material or information not considered. [00:11:11] Speaker 02: So the Army acknowledges the possibility that this could be reopened again. [00:11:17] Speaker 05: You want to reserve some time? [00:11:18] Speaker 02: Yes, Your Honor. [00:11:19] Speaker 05: All right, very well. [00:11:38] Speaker 04: Good morning, your honor. [00:11:39] Speaker 04: May it please the court, Assistant United States Attorney Randy Shea for the Secretary of the Army. [00:11:44] Speaker 04: So I'd just like to respond to a couple of the points made by Mr. Rawls' counsel. [00:11:51] Speaker 04: The first as to retroactivity. [00:11:55] Speaker 04: The counsel states that, and in their briefing, state that they're not seeking a retroactive application of Section 1552. [00:12:04] Speaker 04: But in effect, we believe that what they're asking for is a retroactive application because by the time they submitted their reconsideration application in 2018, the one-year period to file a reconsideration under the old [00:12:25] Speaker 04: regulations had already passed. [00:12:27] Speaker 04: The decision came down in 2015, and by the old regulation, it would have expired by 2016. [00:12:34] Speaker 04: So pursuant to Chang versus the United States, which the district court cited, and under Martin B. Hedricks, which is a Supreme Court case, that basically imposed a new obligation or new burden upon the government, in which case that would be a retroactive application. [00:12:55] Speaker 04: Now, the second point counsel pointed out was that they had new information. [00:13:01] Speaker 04: So the government disputes that. [00:13:03] Speaker 04: In his 2018 application, the only new information that we're aware of is really the Curdham Memorandum and the press release that had been appended with that. [00:13:17] Speaker 04: Other than that, everything else is the same. [00:13:21] Speaker 04: Mr. Rawls here had been aware of his schizophrenia diagnosis essentially since he'd been discharged in 2001. [00:13:31] Speaker 04: His application before the ADRB, the Army Discharge Review Board, in 2002 made note of his schizophrenia, in which the Army Discharge Review Board considered. [00:13:41] Speaker 04: Additionally, in 2015, [00:13:44] Speaker 04: the, you know, the essentially the same records from early on from 2002, 2003, 2004 were presented before the Army Board for Correction of Military Records and they again, you know, it's the same, it was the same issue of his schizophrenia diagnosis. [00:14:01] Speaker 04: So in that sense, by the time we get to 2018, [00:14:04] Speaker 04: There is, you know, the board, the Army is aware of his schizophrenia that has been ongoing, or rather that had been diagnosed essentially 20 years prior. [00:14:14] Speaker 04: And other than the new guidance from the Department of Defense, we're really not aware of any new information. [00:14:20] Speaker 00: So these details about his treatment at Camp Pendleton and his family's attempt to contact, in your view, those aren't new information? [00:14:31] Speaker 04: That's correct, Your Honor. [00:14:32] Speaker 04: Factually, with respect to this case, I believe all that occurred 15 years ago, in 2005, if I'm not mistaken, there were letters from, I believe, Mr. Rawls' grandfather, his grandmother, and other treating providers, and this all occurred [00:14:51] Speaker 04: even before, certainly before the 2015 application, before the ABCMR. [00:14:56] Speaker 01: So in the government's view, if we were to get past the retroactivity argument and just look at new information, in the government's view, the only thing we should be looking at is the CURTA memorandum and the press release. [00:15:11] Speaker 01: And in the government's view, that doesn't count. [00:15:16] Speaker 01: as new information. [00:15:17] Speaker 04: Correct, your honor. [00:15:18] Speaker 04: Certainly, Mr. Rawls, I mean, there's no new evidence with respect to his own personal circumstances or his condition. [00:15:31] Speaker 04: You know, this is just, as the government characterizes it, clarifying guidance for the board. [00:15:38] Speaker 00: So I think you were going there, but can you tell us why, in the government's view, the Curta memorandum is not new information that would affect these proceedings? [00:15:48] Speaker 04: Yes, Your Honor. [00:15:50] Speaker 04: So the Curta memorandum doesn't change anything about Mr. Raul's underlying circumstances or his condition. [00:16:00] Speaker 04: He's seeking an upgrade based on his schizophrenia diagnosis or his condition. [00:16:05] Speaker 04: None of that has changed as a result of the Curda Memorandum. [00:16:09] Speaker 00: But it does change the context of the case in the sense that it's now commanding a liberal treatment of this information. [00:16:17] Speaker 00: Isn't that correct? [00:16:18] Speaker 04: That's correct, Your Honor. [00:16:20] Speaker 04: The board, the ABCMR in its 2015 decision does state that it has made liberal consideration of his medical condition in its decision. [00:16:36] Speaker 04: And certainly also the ADRB in its 2004 decision also upgraded his discharge from an other than honorable to a general discharge based on liberal consideration of his diagnosis. [00:16:51] Speaker 05: So, counsel, let me ask you one thing that puzzles me about this case. [00:16:55] Speaker 05: It's the 2021 denial of reconsideration. [00:16:58] Speaker 05: Yes, your honor. [00:17:00] Speaker 05: Now, in that denial, if I'm correct, they did reach the merits, correct? [00:17:04] Speaker 05: Yes, they did, your honor. [00:17:05] Speaker 05: They did not say, well, hold on a second. [00:17:08] Speaker 05: There's a statute of limitations, and that was one year under the reg, and there's none of that. [00:17:13] Speaker 05: So what do we do with that? [00:17:16] Speaker 04: So the government's position is that we haven't waived our statute of limitations argument there. [00:17:22] Speaker 04: In essence, what I think it would really be an equitable estoppel argument, I think, Your Honor, which [00:17:30] Speaker 04: I don't believe that the appellant had raised here. [00:17:34] Speaker 04: But really, I think if we were to consider it under an equitable estoppel framework, there would have to be one reasonable and actual reliance. [00:17:43] Speaker 04: And also, there'd have to be some sort of an indication of really fraud or misrepresentation on the part of the government, which there isn't here. [00:17:53] Speaker 05: No, no, no. [00:17:53] Speaker 05: And I wouldn't mean to suggest that. [00:17:55] Speaker 05: I'm just trying to understand if it's so clear that this was late. [00:18:00] Speaker 05: then why didn't they say in May 2021, this is late? [00:18:05] Speaker 04: That was a choice made by the ABCMR. [00:18:11] Speaker 05: Right. [00:18:11] Speaker 05: Well, I guess that's what I'm saying, because we're trying to understand this kind of tricky question. [00:18:15] Speaker 05: I mean, I appreciate both the briefing and argument on both sides. [00:18:19] Speaker 05: This has been a very well argued case. [00:18:20] Speaker 05: But this is the part that puzzles me the most, is there was an opportunity for the board, who I would think would know this area of the law better than anybody on the planet, [00:18:29] Speaker 05: And they didn't say what you're saying now. [00:18:32] Speaker 05: It doesn't mean what you're saying now is wrong. [00:18:34] Speaker 05: I'm just trying to say, and I know you weren't part of that decision. [00:18:36] Speaker 05: You never heard of this case back in May of 2021. [00:18:39] Speaker 05: But I'm just trying to understand. [00:18:41] Speaker 05: That seems to me that was the time to say, well, hold on a second. [00:18:44] Speaker 05: It's a one-year deal under the reg. [00:18:46] Speaker 05: This 1552 thing, it doesn't apply in this situation. [00:18:49] Speaker 05: But they actually cite 1552 and then go to the merits, which is kind of what they're telling us to do right now. [00:18:55] Speaker 05: So do we just pretend that that's not part of the record? [00:19:00] Speaker 05: Or you're saying you're not bound by it? [00:19:02] Speaker 04: That's right, your honor. [00:19:03] Speaker 04: So I mean, I certainly understand. [00:19:05] Speaker 04: Yes, they did consider it. [00:19:07] Speaker 04: Yeah, consider the merits. [00:19:08] Speaker 04: But at the same time, though, Mr. Rawls, his claim accrued in 2015. [00:19:14] Speaker 04: He could have filed suit at that very moment. [00:19:16] Speaker 04: He didn't have to file a reconsideration request. [00:19:20] Speaker 04: In fact, I mean, he could have filed a suit before the district court in 2015, 2016, any time before 2018. [00:19:26] Speaker 04: I mean, in terms of why they didn't just [00:19:35] Speaker 04: just rejected outright, that I don't have an answer to. [00:19:38] Speaker 05: But you would agree, and again, you weren't there when the decision was made, but it would be better for your side, I guess what I would say, is if they had said, no, this is late. [00:19:50] Speaker 05: I don't want to put you on the spot. [00:19:51] Speaker 05: I'll say it this way. [00:19:52] Speaker 05: They could have said that, right? [00:19:54] Speaker 03: That's right. [00:19:54] Speaker 05: They could have said that, and they didn't. [00:19:56] Speaker 03: That's correct. [00:19:56] Speaker 05: And then your question is, what do we do with the fact that they didn't? [00:20:00] Speaker 03: Yes. [00:20:00] Speaker 05: And you're saying it's [00:20:02] Speaker 05: not the end of the world, and they are going to say it's the end of the world. [00:20:06] Speaker 04: Right, Your Honor. [00:20:07] Speaker 04: I mean, what, again, we're just going to go, I mean, I would go back to 2015, and again, Mr. Rawls, his counsel was aware that he could have filed suit at that very time. [00:20:18] Speaker 01: I mean, part of the government's argument is, in response to Judge Owens's question, I take it is that the statute of limitations expired on a particular date, and what they said [00:20:30] Speaker 01: in 2021 can't affect the fact that the statute had run. [00:20:36] Speaker 04: Correct. [00:20:36] Speaker 04: So in terms of, well, I mean, I guess there are two statutes at issue here. [00:20:41] Speaker 04: First of all, 1552, whether or not that's retroactive, we take the position that what they're seeking is retroactive, that's one statute, and the other being 3028 USC 2401A, the six-year statute of limitations to file a student district court. [00:21:01] Speaker 04: We cited to Avery, which that cited to Davis. [00:21:06] Speaker 04: And I think that it's a district court case. [00:21:08] Speaker 04: But I think, well, one, it's the only, at the time, the only case addressed within the Ninth Circuit on that issue. [00:21:16] Speaker 04: Now, I think Avery does a good job of detailing the pros and cons of both approaches, the one by Davis and the one by Green. [00:21:25] Speaker 04: And I think Avery kind of discusses [00:21:29] Speaker 04: convincingly why the Davis approach is preferable to that in green, because there are certain pitfalls under the green approach that is discussed in Avery. [00:21:48] Speaker 04: And with respect to the equitable tolling argument raised by the [00:21:57] Speaker 04: by the appellant, we would argue that under Supreme Court jurisprudence, Mr. Rawls would have to be pursuing the claim diligently, and also that there has to have an extraordinary circumstance that stood in his way to essentially defiling suit. [00:22:15] Speaker 04: Now, I would submit that there is not any sort of extraordinary circumstance that stood in his way. [00:22:21] Speaker 04: As we pointed out in the briefing, the Curdham memorandum [00:22:25] Speaker 04: They very well have incentivized Mr. Rawls to apply for a relief, but nothing was impeding him from doing so. [00:22:36] Speaker 04: With that, if there are no further questions from the court, thank you. [00:22:40] Speaker 04: Thank you, counsel, very much. [00:22:41] Speaker 04: Thank you, your honor. [00:23:01] Speaker 02: Your honors, I think you have accurately deduced the conundrum at the heart of this case. [00:23:05] Speaker 02: Mr. Rawls filed his request in 2018. [00:23:08] Speaker 02: The Army considered it. [00:23:09] Speaker 02: They did not return it. [00:23:11] Speaker 02: And now they're saying, throw up their hands and say, you should have filed suit. [00:23:16] Speaker 02: Mr. Shea is correct. [00:23:17] Speaker 02: The statute of limitations did proceed from 2015. [00:23:19] Speaker 02: In fact, that six-year statute of limitations would have expired in April of 2021, after Mr. Rawls submitted his request in 2018. [00:23:29] Speaker 02: Under this rule, what they're saying is, you submitted this new request in 2018, the Army accepted it, but at the same time you're supposed to just file your suit in district court to challenge the 2015 acceptance? [00:23:39] Speaker 02: Again, that's expecting Mr. Rolfe to proceed in two forms simultaneously. [00:23:44] Speaker 02: Again, the APA requires him to exhaust his administrative remedies. [00:23:48] Speaker 02: He certainly is entitled, again, under the doctrine of equitable tolling, to assume that the military had taken this up and they were going to consider this an issue of decision. [00:23:58] Speaker 02: I think that's clear. [00:23:59] Speaker 02: Addressing the retroactivity point, I think we've covered this. [00:24:03] Speaker 02: It's not retroactive. [00:24:04] Speaker 02: It simply says, no matter when filed, this new request was filed in 2018. [00:24:09] Speaker 02: It post-states the statute. [00:24:11] Speaker 02: It's not a retroactive application. [00:24:13] Speaker 02: We're not seeking to reopen a previous proceeding. [00:24:15] Speaker 02: This is an entirely new right under a new proceeding. [00:24:19] Speaker 02: The new evidence is clear in the record. [00:24:20] Speaker 02: Now, whether or not that constitutes new evidence is not before this [00:24:25] Speaker 02: and also was not before the district court. [00:24:27] Speaker 02: If they wanted to raise that argument and challenge that this actually didn't constitute new evidence, that issue could have been litigated, but it was not. [00:24:33] Speaker 02: The court simply rejected it as untimely based on this conclusion that 1552 did not apply retroactively to the 2018 request, and therefore that request was untimely. [00:24:44] Speaker 02: As the panel noted, the Army did not say that. [00:24:49] Speaker 02: The district court just applied that standard. [00:24:51] Speaker 02: Looking at Avery and Green, for example, I think counsel is correct, and those cases have some analogy to this case. [00:24:58] Speaker 02: None of them are binding on this tribunal, but that's exactly the point. [00:25:02] Speaker 02: In Avery, the Army returned the petition as untimely. [00:25:06] Speaker 02: That's exactly the point. [00:25:08] Speaker 02: They said this was untimely, and that triggered the right for him to file his district court case. [00:25:13] Speaker 02: In Green, also not binding on this circuit, however persuasive, the court said, [00:25:19] Speaker 02: When you submit a petition based on new evidence that restarts the sexual limitations now considering the facts of this case where mr. Rawls submitted new application it was accepted by the panel by the board and reconsidered on the merits that either has to restart the sexual limitations or [00:25:38] Speaker 02: or sufficiently be equitably told that he can then challenge that decision in court. [00:25:43] Speaker 02: My last point would be on the equitable tolling argument. [00:25:45] Speaker 02: We agree that Mr. Rawls should be diligently pursuing his rights. [00:25:49] Speaker 02: He was. [00:25:50] Speaker 02: He submitted his application in 2018. [00:25:52] Speaker 02: The Army accepted it. [00:25:54] Speaker 02: And that some extraordinary circumstances stood in his way. [00:25:58] Speaker 02: The Army's own regulations say if the panel was untimely there to return it and advise him to appeal. [00:26:03] Speaker 02: They didn't. [00:26:03] Speaker 02: They accepted this request. [00:26:06] Speaker 02: and asked him to wait. [00:26:10] Speaker 02: He had no choice but to wait until he got the panel back, or he could have proceeded in the district court simultaneously. [00:26:16] Speaker 02: That clearly isn't tenable. [00:26:17] Speaker 02: It risks inconsistent results. [00:26:19] Speaker 02: It's a waste of judicial resources. [00:26:21] Speaker 02: That can't be the rule that you have to preemptively pursue it in the district court. [00:26:25] Speaker 05: So last question for you, counsel, for me. [00:26:28] Speaker 05: So let's say you get what you want in this case. [00:26:30] Speaker 05: And I don't know. [00:26:31] Speaker 05: We've got a conference on it. [00:26:32] Speaker 05: But let's say you get what you want. [00:26:34] Speaker 05: You have been on this case for a number of years. [00:26:37] Speaker 05: I understand you're going to stick with this thing. [00:26:40] Speaker 02: Yes, Your Honor. [00:26:40] Speaker 05: This is not just for appeal and then you're going back to paid work. [00:26:44] Speaker 05: No, Your Honor. [00:26:45] Speaker 05: We plan to pursue this again, yes. [00:26:47] Speaker 05: All right, very well. [00:26:48] Speaker 05: Unless my colleagues have any other questions? [00:26:50] Speaker 05: No. [00:26:50] Speaker 05: All right, thank you very much. [00:26:51] Speaker 05: Thank you to both counsel for your briefing and argument. [00:26:53] Speaker 05: Very helpful in this. [00:26:54] Speaker 05: A lot of dates, a lot of things to keep track of case. [00:26:58] Speaker 05: Yeah, and we're just going to take a, before new counsel comes up, we're going to take a two-minute break. [00:27:02] Speaker 05: We'll be back in just a moment. [00:27:03] Speaker 05: We'll recess for a couple minutes. [00:27:05] Speaker 05: Thank you.