[00:00:02] Speaker 00: Case number 19-5204 et al. [00:00:05] Speaker 00: In-raid Navy chaplaincy. [00:00:07] Speaker 00: Chaplaincy of full gospel churches et al. [00:00:10] Speaker 00: Associated gospel churches at Ballant vs. United States Navy et al. [00:00:14] Speaker 00: Mr. Schultz for the Ballant. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Soni for the Appalachian U.S. [00:00:17] Speaker 00: Navy et al. [00:00:20] Speaker 01: Good morning, Council. [00:00:21] Speaker 01: Mr. Schultz, please proceed when you're ready. [00:00:24] Speaker 04: Thank you, Your Honor. [00:00:26] Speaker 04: I may please the court. [00:00:27] Speaker 04: I'm Arthur Schultz. [00:00:28] Speaker 04: I represent 54 chaplain appellants and the Associated Gospel Churches. [00:00:33] Speaker 04: I reserve two minutes for rebuttal. [00:00:36] Speaker 04: The appellees here after the Navy has greatly simplified this case by failing to respond to two of the major issues that the chaplains raised. [00:00:47] Speaker 04: And the precedent is very clear that when a party fails to respond to a major issue, that is waived. [00:00:55] Speaker 04: And I can provide specific citations, if the court is interested, that shows that that applies to both the pundits and the police. [00:01:03] Speaker 04: I want to emphasize that the boards that we're talking about were composed mostly of chaplains, with the exception of one line officer. [00:01:11] Speaker 04: That procedure changed in fiscal year [00:01:14] Speaker 04: 2003 after we filed suit challenging the stacking of boards by denominations unfavorable or hostile historically to my clients and the practice of always having a Catholic chaplain on every board for 54 years with the power to essentially destroy the career of any chaplain for any reason at all. [00:01:36] Speaker 04: The first conceded issue is the fusion of civic and denominational responsibilities on power [00:01:43] Speaker 04: that results from the commissioning of clergy as naval officers. [00:01:49] Speaker 04: Larkin versus Grendel's Bend pointed out that the core purpose of the establishment clause is to prevent the fusion of government and religious power. [00:01:58] Speaker 04: The Navy and the other services address that issue by restricting chaplains to only religious issues, only to ministry. [00:02:07] Speaker 04: They cannot perform the duty of any other officer [00:02:11] Speaker 04: And the question has been asked but not answered. [00:02:14] Speaker 04: Why then if they restrict chaplains from the duties performed by every other officer, do they allow a chaplain to destroy the career of any other chaplain anonymously and without accountability? [00:02:32] Speaker 05: What is the record evidence on the destruction of careers? [00:02:36] Speaker 05: You've pointed about, it says, for another point you were making, [00:02:41] Speaker 05: You noted that somebody who had been passed over in the Navy was hired by the Army. [00:02:48] Speaker 05: Yes, sir. [00:02:50] Speaker 05: Four of them to be exact, Your Honor. [00:02:53] Speaker 05: What is there about destruction of careers in the record? [00:02:57] Speaker 04: Your Honor, those chaplains, the chaplains of the gospel churches, their Navy career was terminated. [00:03:03] Speaker 04: They were hired by the army, but they start, have to start all over again. [00:03:07] Speaker 04: So they start out considerably behind their other peers. [00:03:12] Speaker 04: And plus the fact that that's a violation as I call it to the court's attention to 1642, the Joint Appendix, which is the machine. [00:03:21] Speaker 04: And I'm holding it up here so there's no doubt. [00:03:23] Speaker 04: Oh, I hope you can see this. [00:03:25] Speaker 04: to press the zero button the undisputed testimony is that destroys the chaplain's career no record is kept if who does that nor it and it's the equivalent your honor if if you're on a panel one of your judges can say well i'm going to press this button and i decide the case it overrules the opinion of all the other people on the appellate on the panel the panels there are made up or supposedly [00:03:53] Speaker 04: of other officers. [00:03:57] Speaker 04: And so what happens is essentially no record is kept to this. [00:04:03] Speaker 04: This is the unbridled power that's demonstrated. [00:04:05] Speaker 04: And Chaplain Black, who was then the chief of chaplains in an investigation of that exact happening, described in detail this process called zeroing out. [00:04:17] Speaker 04: You press the zero button and that person's career is over. [00:04:23] Speaker 04: The particular complainant in that case, Mary Washburn, complained and she was zeroed out because she, the female Navy chaplain, disagreed with Washburn's view of ministry. [00:04:42] Speaker 04: Now that's a theological issue. [00:04:45] Speaker 04: And the requirement under Fusion and under the Establishment Clause is that when you grant discretionary civic power to a person defined by their religious identity, there must be effective guarantees. [00:04:56] Speaker 04: Let me say it again, effective guarantees that the power delegated will be used for secular, neutral, and non-ideological purposes. [00:05:04] Speaker 04: And the record shows that is not the case. [00:05:07] Speaker 04: That this process, again, which I'm holding up, you press the zero, [00:05:13] Speaker 04: That can happen for you can do that because you don't like him because somebody check you out. [00:05:17] Speaker 04: And that's shown in the case of the 97-98 boards. [00:05:22] Speaker 04: The other thing that the Navy has not disputed again is the testimony of Rear Admiral Black, Washburn or any other, Rear Admiral Holerby when he admitted to the Naval Inspector General investigating 97 and 98 boards on which some of our clients, my clients were participated. [00:05:41] Speaker 04: He testified that he, as the chief of chaplains, would influence other people because of his rank and the fact that he's the chief. [00:05:49] Speaker 04: He controls the careers of everybody on that board, except for the line officer. [00:05:53] Speaker 05: Mr. Schultz, what did you have to say about Washburn? [00:05:58] Speaker 04: Washburn was a female, and she was a conservative, if I can use that term, in terms of the [00:06:07] Speaker 04: of her theology, she had a conservative view of women in industry. [00:06:12] Speaker 05: And so she, but her complaint, as I understood it in the affidavit, was just that. [00:06:17] Speaker 05: That, that, that, pardon me, that the thing she referred to one of the members of the board as a feminazi and herself as a conservative, right? [00:06:27] Speaker 05: That's correct. [00:06:28] Speaker 05: I'm not sure of the relevance of that, but tell me this, what about the black affidavit? [00:06:34] Speaker 05: That's a, that was just hearsay, right? [00:06:37] Speaker 05: No, sir. [00:06:38] Speaker 05: But she said that she heard about somebody who had heard from somebody else. [00:06:43] Speaker 04: Sir, the black, your honor, the black avid David, he's testifying to what happened on the board. [00:06:47] Speaker 04: He said he became aware that somebody was zeroing out Washburn because of the excellence of her record. [00:06:53] Speaker 04: He became aware of it. [00:06:54] Speaker 04: So what does that mean? [00:06:57] Speaker 04: Well, that's a question. [00:06:58] Speaker 04: It means nothing because it continued. [00:07:00] Speaker 04: And there is no way to stop it. [00:07:01] Speaker 05: Now, what does it mean to say I became aware of it? [00:07:04] Speaker 05: Does that mean he saw something, he inferred it, or he was told? [00:07:08] Speaker 05: Your Honor, I think he looked at the results. [00:07:10] Speaker 05: So he inferred that from the results? [00:07:12] Speaker 04: Yes, Your Honor, let me give you an example, okay? [00:07:14] Speaker 04: If you have five members on board and everybody votes 100, or four of them vote 100, and one votes zero, the motion get is 400. [00:07:25] Speaker 04: So it's obviously something is wrong. [00:07:28] Speaker 04: And he called his tent, he said he called attention to it. [00:07:30] Speaker 04: He said this is a problem in the Navy and he was going to the Navy Chief of Personnel. [00:07:35] Speaker 04: Washburn said she'd been on four, at least six boards. [00:07:38] Speaker 04: So this is not a simple isolated one-off incident. [00:07:42] Speaker 04: This allows denominational preferences. [00:07:44] Speaker 04: When you go to the 97 and 98 board, again, there's evidence there that clearly, Admiral Holderby said he, [00:07:54] Speaker 04: and he could influence the junior chaplains, and then he admitted advocating for one of his own denomination based on a devotional he heard this guy give. [00:08:06] Speaker 04: That's a religious reason, it's not on the record, and B, there's no requirement to give a devotional of the greater commander. [00:08:13] Speaker 04: You have other evidence than that where [00:08:17] Speaker 04: Chaplain Madden went up and says he had to go up above the board, he had to go above the zone to get two Catholics because nobody was else there. [00:08:28] Speaker 04: And the investigator for the Navy looked at those records and said there's something wrong here because these Catholics have terrible records and hold to be admitted that a Chaplain with a perfect record was not selected because of quote the needs of the Navy. [00:08:42] Speaker 04: Now there's no need in the precepts for say we need Catholics priests. [00:08:47] Speaker 05: And I think, I think you're telling us about something that was just that we decided already some years ago. [00:08:54] Speaker 04: Yeah, I'm not sure I understand the case. [00:08:57] Speaker 04: Your honor, the law of the case is determined by Larkin and Gromit. [00:09:01] Speaker 04: Gromit says when the power is delegated to an individual specifically on the basis of religion, that's fusion. [00:09:09] Speaker 04: And in this case, you have to have a chaplain on the board. [00:09:12] Speaker 04: The statute requires that. [00:09:13] Speaker 04: And so the idea that somehow you can put off your denominational hat, so to speak, is absurd because the minute you take it off, [00:09:20] Speaker 04: The board is invalid. [00:09:23] Speaker 04: It's improperly composed. [00:09:24] Speaker 04: There must be a denomination of representative on there. [00:09:27] Speaker 04: That's why definition of what is a chaplain is a denomination of representative commissioned. [00:09:33] Speaker 04: And you have to answer the question, well, if you don't allow this chaplain to exercise the sovereign's power in any other issue, [00:09:42] Speaker 04: In any other aspect, why do you allow him this, which the evidence shows destroys a chaplain's career? [00:09:49] Speaker 04: That's the exercise of power for a denominational preference. [00:09:54] Speaker 04: And the courts, your honor, must have the ability to examine, Grumman requires, says the courts must examine the process that revives a decision to ensure that the fundamental precept of the Establishment Clause, to make sure that one denomination is not preferred over another, [00:10:11] Speaker 04: is the rule of law and all the investigations show that is not the case. [00:10:16] Speaker 02: Mr. Schultz, could I ask you a question about standing for associated gospel churches? [00:10:24] Speaker 02: If we were to affirm the district court on the substance, [00:10:30] Speaker 02: Would that require us to still reach the standing issues for AGC? [00:10:36] Speaker 02: Are there additional claims that AGC has that need to be considered on remand? [00:10:42] Speaker 02: And if you could just help me understand what those claims would be. [00:10:45] Speaker 04: Your Honor, the AGC complained that the [00:10:50] Speaker 04: The process has excluded its chaplains. [00:10:53] Speaker 04: If you look at exhibit number 472, it's a table. [00:10:57] Speaker 04: And this shows that this is based on the number of applicants that were rejected versus the number of applicants that were considered. [00:11:07] Speaker 04: And what you see on there is those conservative churches like AGC [00:11:11] Speaker 04: are below 66%. [00:11:14] Speaker 04: And if you assume, because we're talking about people who meet all the qualifications, they've passed the minimum bar. [00:11:22] Speaker 04: And so if you assume that domination doesn't have an effect, then the acceptance and rejection rates would be about the same. [00:11:33] Speaker 04: They're not. [00:11:35] Speaker 04: And so we're trying to say, why is that? [00:11:37] Speaker 04: And we believe, and there's evidence there that one of his chaplains, who was later actually hired by Army, now rejected by them, he was asked, well, do you pray in Jesus' name? [00:11:47] Speaker 04: Can you do that? [00:11:48] Speaker 04: Well, of course you can do that. [00:11:50] Speaker 04: Faith requires that. [00:11:52] Speaker 04: And so the answer is yes. [00:11:54] Speaker 04: What you're trying to do is make sure that chaplains don't influence the decision based on theological purposes. [00:12:01] Speaker 02: Are those claims for AGC different from the claims for the other parties? [00:12:06] Speaker 02: What are their unique claims that would require us to consider their claims separately, or are there any distinct claims? [00:12:15] Speaker 04: The distinct claims deal with the accession process. [00:12:19] Speaker 04: And primarily, but also they asked to be the representative of their chaplains. [00:12:24] Speaker 04: They have, at this time, there are at least two chaplains in the Adair case. [00:12:29] Speaker 04: There are three or four in the Larsen case in which they joined. [00:12:33] Speaker 04: And so, yes, they want to represent their chaplains. [00:12:36] Speaker 04: And the district court said, no, you can't even be a representative. [00:12:41] Speaker 04: It's completely illogical. [00:12:42] Speaker 01: If I could just follow up on Judge Rao's question. [00:12:45] Speaker 01: You said that the accession claims are different. [00:12:47] Speaker 01: And just to be clear, even if we were to agree with you hypothetically that AGC has demonstrated standing, there'd be no reason to reach that conclusion if the merits of their claims are already resolved by [00:13:01] Speaker 01: the claims brought by other people as to whom the district court did find that there was standing. [00:13:05] Speaker 01: And so there have to be a reason to find that AGC has standing. [00:13:10] Speaker 01: And it sounds like what you're saying is there is a reason to find that they have standing because there's a category of claims, the accession claims, that haven't been resolved yet on the merits. [00:13:19] Speaker 01: That's what we're looking for. [00:13:20] Speaker 01: Are there claims by AGC that have not yet been resolved on the merits? [00:13:24] Speaker 01: Because if all their claims have already been resolved on the merits, then it doesn't matter that they have standing. [00:13:30] Speaker 04: Your Honor, the answer is yes, there are claims. [00:13:32] Speaker 04: And that has to do with the process by which you're assessed. [00:13:37] Speaker 04: I see that I'm past my time. [00:13:38] Speaker 04: Can I continue to answer your question? [00:13:40] Speaker 01: Yeah, you can answer. [00:13:43] Speaker 04: Well, what AGC wants to do is make sure that the process guarantees equal opportunity based on secular objective reasons [00:13:55] Speaker 04: why for a chaplain to be commissioned. [00:13:59] Speaker 04: We're not asking any of these things. [00:14:01] Speaker 04: We're not asking for some new special. [00:14:02] Speaker 04: We're asking for the same process. [00:14:05] Speaker 04: None of the other services have these issues. [00:14:08] Speaker 04: And so the issue is, why is this Navy different? [00:14:10] Speaker 04: And the issue is because they allow chaplains, denominational representatives, to make choices and decisions that affect the other careers. [00:14:18] Speaker 04: And this is under the establishment clause, unless you want to ignore gromit, we've argued that gromit controls. [00:14:27] Speaker 05: But we've decided earlier it doesn't. [00:14:29] Speaker 05: Let me just follow up more specifically, Mr. Schulz. [00:14:32] Speaker 05: You said that basically AGC wants secular objective criteria, correct? [00:14:39] Speaker 05: Yes, Your Honor. [00:14:40] Speaker 05: But that was also true of CFGC, wasn't it? [00:14:42] Speaker 05: It was litigated. [00:14:44] Speaker 05: CFGC was not litigated, Your Honor. [00:14:46] Speaker 05: Pardon me. [00:14:47] Speaker 05: Was the question of having secular objective criteria litigated? [00:14:51] Speaker 05: No, Your Honor. [00:14:53] Speaker 05: It's not been litigated. [00:14:54] Speaker 05: Well, then how did the court seem to me that was exactly what the claim was that the court rejected what it said about the constitutionality of the existing regime. [00:15:08] Speaker 04: Your honor, it said that the criteria was in the Secretary of the Navy's instructions. [00:15:14] Speaker 04: If you read those instructions, they don't talk about secular. [00:15:17] Speaker 04: They talk about subjective things like leadership. [00:15:22] Speaker 04: Your honor, we're dealing with ministry, and that's our main point. [00:15:25] Speaker 04: They're evaluating a subject, but ministry is a religious thing. [00:15:31] Speaker 05: We're also dealing with leadership. [00:15:33] Speaker 05: So you don't think leadership can be a valid criterion then? [00:15:36] Speaker 04: Let me give you an example. [00:15:41] Speaker 04: Jack Holderby looked at a chaplain from his denomination and said, gee, he gave this devotional. [00:15:50] Speaker 04: I'm really touched. [00:15:51] Speaker 04: He belongs. [00:15:52] Speaker 04: He should be a commander. [00:15:54] Speaker 04: Now, that's a religious person. [00:15:55] Speaker 04: There's nothing secular about it. [00:15:56] Speaker 04: And this court cannot look at these decisions and say, gee, this is based on a secular reason. [00:16:04] Speaker 04: You can't do that. [00:16:05] Speaker 04: And what we're saying is it's evidence shows that there are guarantees which are required under grommet, and your ability to review them cannot be. [00:16:15] Speaker 04: And I will say, Your Honor, if the issue of fusion was not addressed by the court, you won't find that term addressed. [00:16:23] Speaker 04: They said, well, the issue is there's a standard, and those standards, the term that Larkin used is effective guarantees. [00:16:33] Speaker 04: And I would suggest that there's a great deal of difference, a constitutional difference between effective guarantees, which the evidence shows there are none. [00:16:42] Speaker 05: In 2012, we said Gromit and Larkin don't govern here. [00:16:46] Speaker 05: Yes, your honor. [00:16:48] Speaker 05: So let's not rehash it. [00:16:49] Speaker 04: It's the law of the case. [00:16:51] Speaker 04: Yes, your honor. [00:16:51] Speaker 04: But you're required, I believe, to look at what the facts show. [00:16:55] Speaker 04: And I'm saying fusion does. [00:16:57] Speaker 04: Are you saying it's not the law of the case? [00:16:58] Speaker 04: Come on. [00:16:59] Speaker 04: What is it you're saying? [00:17:01] Speaker 04: Your honor, what I remember of that previous decision was they said Larkin provides a standard. [00:17:07] Speaker 04: He says this is not a standardless case as in Larkin. [00:17:12] Speaker 04: And yes, Your Honor, but Gromit says, they did not address the fusion of results from the commissioning of a clergy person with the power as is demonstrated by this document, this zeroing out. [00:17:31] Speaker 04: They did not examine zeroing out. [00:17:34] Speaker 04: You won't find in there any reference to Black's testimony or any of the other evidence that showed the denomination played a role. [00:17:42] Speaker 04: And that is the question. [00:17:44] Speaker 04: Effective guarantees. [00:17:45] Speaker 05: Effective guarantees. [00:17:47] Speaker 05: We will not find it where? [00:17:48] Speaker 05: In the 2018 opinion? [00:17:52] Speaker 04: In a 2013 opinion, you won't find any reference to zeroing out. [00:17:59] Speaker 04: You won't find any reference to Admiral Black's testimony, Washburn's testimony, none of the testimony that shows that denomination played a part. [00:18:08] Speaker 04: So if there's an effective standard, how come [00:18:11] Speaker 04: How can denomination play a part? [00:18:15] Speaker 04: It does. [00:18:16] Speaker 04: The evidence before this court is that there are no effective guarantees. [00:18:21] Speaker 04: That's the standard by Gromit. [00:18:23] Speaker 04: That's the standard by Larkin versus Gromit. [00:18:27] Speaker 01: OK, Mr. Schultz, I just want to make sure my colleagues don't have additional questions for you before we let Ms. [00:18:34] Speaker 01: Soni have her time, and then we'll give you rebuttal time. [00:18:36] Speaker 05: No. [00:18:37] Speaker 01: OK, thank you, Mr. Schultz, Ms. [00:18:39] Speaker 01: Soni. [00:18:40] Speaker 03: Thank you, Your Honor, and may it please the court, Sushma Soni for the Secretary of the Navy and the other federal defendants. [00:18:48] Speaker 03: I'd like to start directly with the standing questions that were posed to my opposing counsel. [00:18:55] Speaker 03: When you asked, when your honors asked if there were claims that AGC had, that if they were found to have standing, that they could assert that were not already decided, the answer is no. [00:19:07] Speaker 03: They were asserting the same systemic claims [00:19:10] Speaker 03: that the other plaintiffs asserted. [00:19:12] Speaker 03: They were part of the original Gibson class, which filed suit in 2006. [00:19:18] Speaker 03: There were, at the beginning, some issues about accession. [00:19:25] Speaker 03: Those kind of dropped out during the course of this lengthy litigation. [00:19:30] Speaker 03: My understanding is that the, I don't want to put words in the plaintiff's mouth, but my understanding was that the claim was [00:19:40] Speaker 03: that accessions were allegedly took place according to, that the Navy followed an illegal quota system. [00:19:50] Speaker 03: That was the allegation. [00:19:53] Speaker 03: But even if that allegation were true and we maintain that it is not, there is no question that since the early 2000s, the Navy Chaplain Corps has accessed [00:20:09] Speaker 03: chaplains into the chaplain corps purely on the basis of merit qualifications without regard to religious affiliation, and there are no quotas. [00:20:20] Speaker 03: And there are not even any accession goals at this point, as far as I understand. [00:20:25] Speaker 01: But that sounds like that's your merits response, which may well be persuasive. [00:20:31] Speaker 01: But it sounds like what you're saying is, if we had to go to the merits on the accession claims, here would be our response, and it's foolproof. [00:20:39] Speaker 01: And as I understand what happened, and correct me if I'm wrong, there's a long history here, and there may well have been things in the record that were not completely processing, but as I understand what happens, there were accession claims made at the outset by AGC, and I think by individuals, but at least by AGC, and then those claims were dismissed based on a lack of standing. [00:20:58] Speaker 01: And then they never saw the light of day in terms of resolution of the merits. [00:21:01] Speaker 01: And if that's true, and if, again, just hypothetically, if we were to conclude that the determination that AGC lacked standing was erroneous, then there would be some claims that AGC had that have not yet been resolved on the merits. [00:21:18] Speaker 03: Well, Your Honor, the response is that this alleged policy [00:21:24] Speaker 03: ended before AGC filed suit. [00:21:29] Speaker 03: And they are only asking for a change in the Navy's practices. [00:21:33] Speaker 03: So you can't get standing based on practices that weren't in effect when you filed suit. [00:21:44] Speaker 03: That is why the district court, when it was looking at whether AGC's core mission was at loggerheads with what [00:21:55] Speaker 03: Navy's policy was toward accessing individuals into the chaplain corps. [00:21:59] Speaker 01: But weren't there there were no accession claims that went past 2000? [00:22:05] Speaker 03: No, your honor, they were talking about an alleged policy of this this alleged quota system. [00:22:10] Speaker 03: And there really there is no dispute that since the early 2000s, the Navy has followed this accession policy without regard to religious affiliation. [00:22:22] Speaker 03: In fact, [00:22:23] Speaker 03: Even the process is somewhat different from the promotion and selection board process. [00:22:30] Speaker 03: The applications go to something called the Care Advisory Board. [00:22:35] Speaker 03: It's a different process. [00:22:38] Speaker 01: Can I ask you this question? [00:22:39] Speaker 01: It's more of a practical question along these lines. [00:22:43] Speaker 01: If we were to conclude, again, just if, I know you resist the premise, but if we were to conclude that AGC did have standing, would you be opposed to allowing the district court to sort out what exactly went on with the claims in terms of whether there's claims that were raised at the outset that survived because they were never resolved on the merits? [00:23:00] Speaker 01: Because it seems like at least there's some confusion as to what exactly was raised by whom and when and what exactly was resolved in which opinion. [00:23:09] Speaker 01: Would that be something that the government would oppose? [00:23:13] Speaker 03: Your honor, we would urge this court to decide this case while it is on appeal. [00:23:19] Speaker 03: It has gone on for over 20 years. [00:23:21] Speaker 03: And when your honor references claims made at the outset, there have been four different district court judges. [00:23:29] Speaker 03: that have considered this case? [00:23:31] Speaker 01: I completely understand that this case has gone on for a long time, and it's gone through many judges. [00:23:34] Speaker 01: That's absolutely true. [00:23:36] Speaker 01: But there's also a statute of limitations issue, and everybody agrees now that the statute of limits was applied incorrectly. [00:23:42] Speaker 01: And then there's an equitable tolling question. [00:23:44] Speaker 01: And yes, in theory, the Court of Appeals could resolve that equitable tolling question. [00:23:49] Speaker 01: It's also quite commensurate what courts of appeals normally do in those situations to remand to allow that to be sorted out in the district court. [00:23:56] Speaker 01: And if that were going to happen, then it's going back [00:23:59] Speaker 01: Regrettably, I understand your perspective on this. [00:24:02] Speaker 01: But in any event, for resolution of that. [00:24:05] Speaker 03: Your honor, I would again, that is another point that I wanted to be sure to emphasize. [00:24:12] Speaker 03: We would urge this court to decide the question of equitable tolling in the first instance. [00:24:18] Speaker 03: And it is appropriate for the court. [00:24:20] Speaker 03: This is one of those situations where it is appropriate, entirely appropriate for the court to decide that question in its discretion. [00:24:29] Speaker 03: because the case has gone on for more than 20 years. [00:24:33] Speaker 03: And we are talking about the particular claims that the plaintiffs want to revive are not simply stale. [00:24:43] Speaker 03: They date back to the 70s and 80s, so that when the first of these cases was filed in 1999, those claims were already two decades old, and now would be over four decades old. [00:24:57] Speaker 03: Rather than prolong this, we would ask this court to decide the question of equitable tolling. [00:25:02] Speaker 03: It's also appropriate because one of the things that this court looks at is whether it would be fair to the parties, and the party is absolutely fair to the parties. [00:25:12] Speaker 03: The parties thoroughly brief the question of equitable tolling and fraudulent concealment in the district court at least twice. [00:25:20] Speaker 03: Also, it's appropriate to [00:25:24] Speaker 03: decide that question if the answer is clear. [00:25:28] Speaker 03: And the answer on equitable tolling based on fraudulent concealment is clear. [00:25:33] Speaker 01: Do you think it would be inappropriate for us to remount? [00:25:36] Speaker 01: Is that the government's take? [00:25:39] Speaker 03: Your Honor, it is a question of this court's discretion. [00:25:41] Speaker 03: So it is not inappropriate, but we would simply urge this court to bring these proceedings to a close. [00:25:48] Speaker 05: Let me ask something. [00:25:51] Speaker 05: AGC's standing, pardon me, their claim for standing is based in part on the following quotation from their complaint. [00:26:01] Speaker 05: AGC receives financial support from its chaplains. [00:26:05] Speaker 05: Rejection results in a loss of AGC's resources, et cetera. [00:26:09] Speaker 05: Is there a money claim for the lost dues, as it were? [00:26:16] Speaker 03: Not that I'm aware, Your Honor, my understanding is that this is a suit for declaratory and injunctive relief. [00:26:23] Speaker 03: I mean, setting aside the individual's claims, it is a suit for declaratory injunctive relief to change agency practices. [00:26:32] Speaker 03: So, no. [00:26:32] Speaker 05: The things that we would have to resolve [00:26:35] Speaker 05: would include, I think you said fraudulent concealment, right? [00:26:42] Speaker 05: Yes, Your Honor. [00:26:43] Speaker 05: I think also willfulness, if I'm not mistaken. [00:26:47] Speaker 05: I'm not sure, there were three or so elements I think that would have to be resolved, all of which are factual in nature, correct? [00:26:57] Speaker 03: Well, the fraudulent, my understanding, Your Honor, would be that the fraudulent concealment question would be the one to decide. [00:27:02] Speaker 03: I don't, I have not understood it to be a question of willfulness. [00:27:06] Speaker 03: I mean, here we look at what the plaintiffs have alleged. [00:27:10] Speaker 05: Well, you're right. [00:27:10] Speaker 05: It's a question of whether the Navy engaged in a course of conduct designed to conceal. [00:27:18] Speaker 03: Designed to conceal. [00:27:19] Speaker 05: Which it can't rather than willfulness. [00:27:21] Speaker 03: Okay. [00:27:22] Speaker 05: Right? [00:27:22] Speaker 05: So we look at what they're. [00:27:24] Speaker 05: And then the question of actual or constructive notice. [00:27:28] Speaker 05: on which I'm frank to say, I think you're showing was rather weak and of due diligence. [00:27:35] Speaker 05: So all those things we would have to resolve from up here at 30,000 feet. [00:27:42] Speaker 03: Your honor, in terms of fraudulent concealment, it is a difficult standard. [00:27:46] Speaker 03: It's meant to be a difficult standard. [00:27:49] Speaker 03: And it's not enough [00:27:51] Speaker 03: simply for the defendant to have set back, there has to be some trick or contrivance. [00:27:57] Speaker 05: And what the plaintiffs have alleged- This matter was resolved on the ground that equitable tolling was not possible, correct? [00:28:06] Speaker 05: Yes, Your Honor. [00:28:07] Speaker 05: Not on the ground that it was not warranted. [00:28:10] Speaker 03: That's correct. [00:28:11] Speaker 05: And so would it not be open to the plaintiffs to adduce facts with regard to intent and diligence and so on? [00:28:24] Speaker 03: Your honor, they had seven years to do that. [00:28:27] Speaker 03: If it's not in the record now, there's nothing additional to come out. [00:28:30] Speaker 05: The district court could not accept more evidence on that. [00:28:35] Speaker 05: The court didn't reach it. [00:28:37] Speaker 05: I'm wondering about that. [00:28:38] Speaker 03: Your Honor, there is no need for the court to reopen discovery in this case. [00:28:43] Speaker 03: It went on for seven years, off and on, 9,000 pages of documents, 20-odd depositions taken by the plaintiffs. [00:28:52] Speaker 03: If they don't have evidence of fraudulent concealment now, they are not going to be able to get it. [00:28:57] Speaker 03: And let's look at what they say constituted fraudulent concealment by the government. [00:29:04] Speaker 03: They say that is the hierarchical nature of the military. [00:29:10] Speaker 03: the fact that selection board proceedings can't be disclosed, the fact that personnel files of other people up for promotion are protected by Privacy Act. [00:29:22] Speaker 03: Also, there's an allegation that unspecified members of the Chaplain Corps leadership told plaintiffs that the proceedings were merit-based and not discriminatory. [00:29:39] Speaker 03: And none of that rises to the level of fraudulent concealment. [00:29:43] Speaker 03: It is simply not fraud for the Navy and the Chaplain Corps to follow federal law. [00:29:52] Speaker 03: There has to be something more than this. [00:29:54] Speaker 05: Have they implemented the Secretary's refusal to waive secrecy? [00:29:59] Speaker 03: Your Honor, 613A [00:30:02] Speaker 03: is an absolute statutory privilege. [00:30:05] Speaker 03: The secretary can waive it in certain circumstances, like as it does, as he does, for instance, when there are IG investigations, but not for civil discovery. [00:30:17] Speaker 03: In fact, it's a pretty clear prohibition against that kind of the fishing expedition that civil discovery turns into. [00:30:24] Speaker 05: Was the civil discovery aspect of this also a prohibition not within the power of the secretary to waive? [00:30:33] Speaker 03: there is, would it be within the power of the secretary? [00:30:37] Speaker 03: The secretary can waive it, but does not waive it for civil. [00:30:42] Speaker 03: I mean, Congress made it clear they don't want these proceedings to be coming out in civil discovery. [00:30:48] Speaker 05: Except when the secretary thinks there's good reason. [00:30:51] Speaker 03: There's a good reason to make sure that people can have a frank exchange of their viewpoints when they meet to discuss promotion of people in the military, which the chaplains are. [00:31:03] Speaker 03: It was also just to close the loop on this question about the constructive knowledge and about the fraudulent concealment in general. [00:31:19] Speaker 03: The notion that the Chaplain Corps was able to conceal this evidence of wrongdoing is implausible in light of the fact, which is in the record, that the individual [00:31:33] Speaker 03: individual plaintiffs, when they were up for promotion, the information of who else was up for promotion, who was on the selection board, who was chosen, that was all known. [00:31:47] Speaker 03: That was publicly available information. [00:31:48] Speaker 03: It was disclosed around the time of the selection proceedings. [00:31:52] Speaker 03: And obviously, the plaintiffs themselves knew if they were not selected. [00:31:57] Speaker 03: At the same time, it's a fairly small community, the Chaplain Corps. [00:32:03] Speaker 03: At its peak, it was less than 900 people. [00:32:05] Speaker 03: People served together. [00:32:06] Speaker 03: They know what other people's reputations are. [00:32:09] Speaker 03: They know if there is a chaplain who is spoken of very highly by his peers, if there's a chaplain whose superior officer talks him up, and they talk to each other. [00:32:22] Speaker 03: And that's what the consolidated complaint makes clear. [00:32:24] Speaker 03: The notion that under those circumstances, the Navy could have concealed [00:32:30] Speaker 03: this evidence of wrongdoing, it just isn't plausible. [00:32:34] Speaker 03: And the court doesn't need to remand to the district court to see that. [00:32:41] Speaker 03: I want to make sure that I address any questions the court might have about finality, because the court did ask us to address that. [00:32:50] Speaker 03: And often, that reflects a concern by a court that there was some type of [00:32:58] Speaker 03: arrangement or agreement between the parties to create appellate jurisdiction. [00:33:03] Speaker 03: I want to assure the panel that that was not the case here. [00:33:09] Speaker 03: I see I am almost out of time. [00:33:12] Speaker 03: And we did thoroughly brief the issues in this case. [00:33:16] Speaker 03: I want to make sure that I don't leave you with any questions. [00:33:20] Speaker 03: I mean, it is very easy to get confused in this case. [00:33:23] Speaker 03: So for instance, my opposing counsel referred to [00:33:27] Speaker 03: standards for accession that included some, some particular standards like leadership that are not relevant to accession, but are in fact part of the promotion process. [00:33:38] Speaker 03: So there are many things like that, that it's very easy to get confused. [00:33:43] Speaker 03: And I want to make sure that if there are any questions that I can address them. [00:33:47] Speaker 01: I don't think so. [00:33:48] Speaker 01: Let me double check with my colleagues. [00:33:50] Speaker 01: I think, I think we understand your arguments. [00:33:54] Speaker 01: Thank you, Ms. [00:33:54] Speaker 01: Sony. [00:33:56] Speaker 03: Thank you, Your Honor. [00:33:56] Speaker 03: We ask the panel to affirm. [00:33:59] Speaker 01: Thanks, Mr. Schultz. [00:34:00] Speaker 01: We'll give you your rebuttal time. [00:34:02] Speaker 04: Thank you, Your Honor. [00:34:03] Speaker 04: First off, a declaration of Chaplain Brownlee endorsing the Associated Gospel Church is a matter of record. [00:34:10] Speaker 04: And he identifies specific chaplain applicants that were rejected by the Navy despite a shortage of chaplains. [00:34:18] Speaker 04: And there was no excuse. [00:34:19] Speaker 04: They'd met all of those things, and no reason was given. [00:34:23] Speaker 04: And so the issue of the fact that these are years and there's nothing here that's current is incorrect. [00:34:32] Speaker 04: Secondly, there is asking for a junction. [00:34:35] Speaker 04: These processes are created administratively. [00:34:39] Speaker 04: And so what's administratively correct today may be changed tomorrow, and then we go back to the way it was. [00:34:47] Speaker 04: We're looking for protections to make sure that denomination doesn't become an issue. [00:34:53] Speaker 04: Effective guarantees is the term, which we can't just say. [00:34:58] Speaker 04: Effective guarantees, not some subjective standard, effective guarantees [00:35:03] Speaker 04: And the issue of polling, the question was, why did we not know? [00:35:10] Speaker 04: The only record that shows that supposedly, like the Chatham's were aware of this, was an article in the Army Lawyer and a supposedly some other discussion on a local article in the San Diego paper. [00:35:23] Speaker 02: Mr. Schultz, are you still seeking a remand on the tolling issue? [00:35:28] Speaker 02: Because it seems in your reply brief that you're suggesting we could or it would be appropriate or fine for us to decide that issue in the first instance. [00:35:37] Speaker 02: Are you still maintaining that you think a remand is, are you still seeking a remand on the tolling issue? [00:35:45] Speaker 04: Your honor, my position or our position was that you have discretion. [00:35:50] Speaker 04: But the burden that the defendant has to show is that when you get to self concealing, there has to be widely known, I don't want to go through all of the things. [00:36:02] Speaker 04: And that's just not here. [00:36:03] Speaker 04: They can't show. [00:36:05] Speaker 04: they have not presented evidence of any senior chaplain anybody there at the time that says oh yes I remember Wilkins I remember Wilkins we had training on that it's not there and if that had were widely known there'd be all kinds of people that they could come and say hey here it is which they were aware there's nothing here and so the idea that somehow they perceived this just because of the fact that your promotion is let me emphasize the fact that that the [00:36:31] Speaker 04: You don't know what the other person's record, and the very fact that, as Miss Tony pointed out, the reputation, the record shows that reputation which is not in a record is considered. [00:36:46] Speaker 04: And so how is that? [00:36:49] Speaker 04: Reputation for what? [00:36:51] Speaker 04: If you're a liturgical, you like people that are liturgical. [00:36:54] Speaker 04: If you're a non-liturgical, you prefer people non-liturgical. [00:36:57] Speaker 04: And so that very argument that you were discussing this goes against allowing that. [00:37:02] Speaker 04: Furthermore, these are secret proceedings. [00:37:05] Speaker 01: Let me just make sure my colleagues don't have additional questions for you since we're through your rebuttal time. [00:37:12] Speaker 01: Thank you. [00:37:12] Speaker 01: Thank you, Mr. Schultz. [00:37:13] Speaker 01: Thanks for your argument, counsel. [00:37:15] Speaker 01: Thank you to both counsel. [00:37:16] Speaker 01: We'll take this case under submission, and the court will stand in a short recess before we take up the third case.