[00:00:00] Speaker 00:
Case number 24-5150 et al.

[00:00:04] Speaker 00:
Robert B. Bergdahl versus United States of America, balanced.

[00:00:08] Speaker 00:
Mr. Hinchel, who is more balanced, United States of America.

[00:00:11] Speaker 00:
Mr. Feidl, who I believe Robert Bergdahl.

[00:00:15] Speaker 02:
I think we were starting with government counsel first.

[00:00:20] Speaker 01:
You're quite right, Chief Judge.

[00:00:23] Speaker 01:
We're across appellants, not appellants.

[00:00:25] Speaker 01:
Correct.

[00:00:26] Speaker 02:
And you'll both get rebuttal time.

[00:00:27] Speaker 02:
Thank you.

[00:00:28] Speaker 03:
Mr. Hinchelwood, please proceed when you're ready.

[00:00:32] Speaker 03:
Good morning, Your Honors, and may it please the court, Brad Hinchelwood for the government.

[00:00:44] Speaker 03:
If the district court here purported to vacate the judgments of a court martial, then two military appellate courts established by Congress based on an asserted violation of a military rule and despite the absence of any prejudice to Bergdahl from leaving his voluntary pleas and the sentence in place.

[00:01:00] Speaker 03:
That was erroneous at every step.

[00:01:02] Speaker 03:
District courts lack jurisdiction to vacate or alter court martial judgments.

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That act is the hallmark of appellate jurisdiction, which Congress has entrusted to the military appellate courts and the Supreme Court, not district courts exercising their original jurisdiction.

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Moreover, a federal court may relieve a service member of the race judicata effects of a military judgment only on the basis of a fundamental constitutional jurisdictional error.

[00:01:25] Speaker 03:
Appearance of partiality and apparent unlawful command influence are rule-based prophylactic doctrines, and thus Bergdahl would not be entitled to collateral relief in any event.

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And even if those hurdles could be overcome, Bergdahl would not be entitled to vacator.

[00:01:39] Speaker 03:
He failed to timely raise his appearance of partiality claim in the military courts and suffers no prejudice even from the purported error he identifies.

[00:01:47] Speaker 02:
Can I start off with your threshold position that because this is collateral review and not direct review, vacator was improper?

[00:01:54] Speaker 03:
there's no jurisdiction to retain a suit of this type, I think is really our threshold position.

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

[00:02:01] Speaker 02:
Well, I mean, I take it the main problem is that the vacator was ordered because you can have, if it's

[00:02:12] Speaker 02:
because it's collateral review, vacate or can't be implemented because that's something that can only be done on direct review.

[00:02:18] Speaker 02:
I thought that was the predicate to your first question.

[00:02:21] Speaker 03:
That's certainly correct.

[00:02:21] Speaker 03:
I'm going to distinguish between two arguments.

[00:02:23] Speaker 03:
We have an argument that even if there is jurisdiction and this is a proper sort of collateral suit, applying the legitimate factors, vacant or would not be appropriate.

[00:02:30] Speaker 03:
Sorry, I'm not talking about that.

[00:02:31] Speaker 02:
Okay.

[00:02:32] Speaker 03:
Then there's the threshold point that

[00:02:34] Speaker 03:
there is no way in collateral review to seek vacatur of a court martial conviction.

[00:02:39] Speaker 03:
And I think that's the point that we derive from Councilman.

[00:02:42] Speaker 03:
If you look at what Councilman itself says and how it describes collateral review of court martial judgments and of military judgments generally, it says, look, what a court does in collateral review is it considers whether to relieve someone from the race judicata affects a particular judgment.

[00:02:55] Speaker 03:
It's the same thing a court does in habeas, for example.

[00:02:58] Speaker 02:
So let's suppose that I take your argument that if a collateral action asks for a vacator, if that's the collateral action, we're bringing collateral action and we're seeking vacator, that there's some dissonance there because collateral review is not supposed to encompass vacator because that's what you do on direct review.

[00:03:22] Speaker 02:
In this case, the complaint also talks about expungement.

[00:03:27] Speaker 02:
And what is your theory for why expungement, I assume you think that expungement fits in the same bucket as vacator for these purposes, that there's no jurisdiction to enter expungement either when it's on collateral review as opposed to direct review.

[00:03:44] Speaker 02:
And then if the action seeks expungement, then that's also out of bounds based on your understanding of counselment.

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And I take the point that,

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As in one conceptualization, expungement also operates against a conviction.

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So one could take the position that, well, you can't operate a conviction at all on collateral review.

[00:04:04] Speaker 02:
You can only do that on direct review, and therefore expungement should be in the same bucket as vacator.

[00:04:10] Speaker 02:
Potentially another way to look at it is that expungement actually is distinct from vacator because vacator sets aside the conviction.

[00:04:18] Speaker 02:
Expungement actually doesn't set aside the conviction.

[00:04:20] Speaker 02:
Expungement leaves the conviction in place, but it deals with some of the consequences of the conviction.

[00:04:26] Speaker 02:
And that's more in the can of the type of thing that collateral review can encompass.

[00:04:33] Speaker 02:
Am I thinking about that incorrectly?

[00:04:34] Speaker 02:
What would be your take on why expungement, I assume, in your view, fits within the same bucket as vacator?

[00:04:41] Speaker 03:
Right.

[00:04:41] Speaker 03:
I think a few points about that.

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So one is that I don't take Bergdahl here to dispute that by asking for expungement, what he wanted was the district court to vacate.

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And in fact, he says he wants him to let go.

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Now he wants the district board to in fact bar the military from ever retrying him.

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So I don't see that Murdoch himself perceives any difference between expungement and vacater for these purposes.

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I would also emphasize, I don't understand exactly what difference that would make in this context where we're talking about consequences, all of which are bound up in the judgment.

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the dishonorable discharge, which is the central feature, I think, of the objections that Bergdahl is raising here, is the primary component of the judgment.

[00:05:24] Speaker 03:
I mean, that is its very nature.

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And it's not obvious to me what expungement would do.

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And I'm frankly not aware of situations in which

[00:05:32] Speaker 03:
federal courts direct, for example, state courts to expunge a judgment as opposed to in a suit otherwise within their jurisdiction because there is some basis, grant some collateral relief, whether that's habeas relief, whether that's back pay or something similar in the military context.

[00:05:49] Speaker 03:
I don't really see in this case any daylight between

[00:05:52] Speaker 03:
know, expungement and vacater.

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It's hard to imagine what suing for expungement would get you that's different in this context from vacater of the judgment.

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And the district court clearly understood it that way and Bergdahl has treated it that way.

[00:06:05] Speaker 02:
I mean, you could... At least conceptually, I mean, I understand your position that

[00:06:11] Speaker 02:
expungement could be seen as in the same bucket as vacated for these purposes.

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And I understand your position that there's no federal law of expungement, that there's not a whole, you know,

[00:06:25] Speaker 02:
historical tradition of expungement as collateral review.

[00:06:28] Speaker 02:
But just as a conceptual matter, it seems to me one could draw a distinction between expungement and vacator in that expungement leaves the conviction in place.

[00:06:38] Speaker 02:
So it doesn't actually directly operate against the conviction in the same way that a vacator would because an expungement does leave the conviction in place.

[00:06:46] Speaker 02:
It deals with the consequences of

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the conviction and it says, for example, I think when a state laws have expungement as a possibility in various routes, I don't think those state laws think that what's happening when you expunge a conviction is that you're vacating the conviction.

[00:07:02] Speaker 03:
I think sometimes you think about expungement of records, for example.

[00:07:07] Speaker 03:
But of course, here, Congress established a process by which an individual can seek an alteration to their military records.

[00:07:14] Speaker 03:
I mean, that's the board for correction of military records process.

[00:07:17] Speaker 03:
And in that very process, Congress made clear that can't alter the judgment itself.

[00:07:22] Speaker 03:
And of course, Bergdahl hasn't invoked that process.

[00:07:24] Speaker 03:
He hasn't exhausted that process and doesn't seek review of any decision emanating from that process.

[00:07:29] Speaker 03:
So it's very hard for me to see how, again,

[00:07:31] Speaker 03:
accepting that, you know, the decisions of those boards are subject to review, which we do, it's very hard to see how in this case could possibly be, you know, one in which that remedy could be properly solved.

[00:07:41] Speaker 02:
Because the release on a complaint, at least, is expungement of the conviction itself.

[00:07:45] Speaker 03:
Certainly, that's exactly what the district court here did.

[00:07:48] Speaker 03:
It said, I'm vacating the judgment, the judgment of the Army Court of Criminal Appeals, the judgment of the CAF, all of it, which is something that is flatly inconsistent with counselment.

[00:07:59] Speaker 03:
It's not something a federal court could do with respect, for example, to a state court judgment.

[00:08:03] Speaker 03:
And it's not something that's consistent.

[00:08:05] Speaker 03:
The government didn't point that out to the district court.

[00:08:07] Speaker 03:
No, but we believe it's a fundamental jurisdictional limitation on the district court's power.

[00:08:12] Speaker 03:
The original jurisdiction, conferred by 1331, does not include the power to vacate or alter the judgments of separate and independent court systems.

[00:08:19] Speaker 05:
What about the first grounds or type of relief that was requested, essentially declaratory judgment, a declaration that the conviction and sentence were obtained in violation of the Constitution, Fifth Amendment?

[00:08:38] Speaker 03:
Yeah, I mean, you can seek a declaratory judgment, but the declaratory judgment act that enables you to do that is not itself a source of jurisdiction, nor does it create a cause of action.

[00:08:47] Speaker 03:
It's just an additional remedy courts can enter.

[00:08:49] Speaker 03:
And this court's been very clear about that.

[00:08:51] Speaker 03:
So he would still need to point to a source of jurisdiction.

[00:08:53] Speaker 03:
The only one he's pointed to is 1331.

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And we know that 1331 does not empower courts, district courts, to engage in this kind of revision, alteration, vacatur of the judgments of coordinated court systems.

[00:09:04] Speaker 03:
It can't do it for state court judgments, and it can't do it for military court judgments.

[00:09:07] Speaker 05:
So what are we supposed to do with Avreck v. Secretary of Navy?

[00:09:13] Speaker 05:
I don't know that it was cited in the briefs.

[00:09:19] Speaker 05:
The district court talked about

[00:09:24] Speaker 05:
kind of the companion case to Averick, which was Priest v. Secretary of Navy.

[00:09:32] Speaker 05:
But Priest, decided in 1977 by this court, cites and relies upon Averick.

[00:09:42] Speaker 05:
And in Averick, interestingly, in both of those panels, retired justice Tom Clark was on the panel.

[00:09:53] Speaker 05:
in both of those cases.

[00:09:54] Speaker 05:
And in Africa, the court specifically looks at subject matter jurisdiction and says, and it talks about that the Supreme Court had just kind of recently entertained this issue in councilmen.

[00:10:14] Speaker 05:
And they said, you know, we are confident

[00:10:18] Speaker 05:
that there is jurisdiction to consider this action seeking post-conviction relief.

[00:10:25] Speaker 05:
And I'm trying to recall for certain, but I believe that

[00:10:45] Speaker 05:
It's like if in that case sought declaratory relief, but correct me if I'm wrong.

[00:10:51] Speaker 05:
Are you familiar with the case?

[00:10:52] Speaker 05:
You know what I'm talking about?

[00:10:53] Speaker 03:
I'm familiar with AVERIC from its first iteration.

[00:10:56] Speaker 03:
I'm not recalling the specific, sounds like a post councilman on remand revisitation of AVERIC from this court.

[00:11:02] Speaker 03:
But as you've described it, it sounds not dissimilar from priest or other cases where this court has simply made statements about the availability of review without describing what kind of review is being engaged in, exactly what the basis for jurisdiction was, or the relief that was sought beyond the declaratory judgment.

[00:11:19] Speaker 03:
I mean, there are certainly circumstances where a court might issue declaratory relief in addition to other forms of relief.

[00:11:25] Speaker 03:
And in the cases where this court has, in fact, specified, it's done so either without analysis really at all, as in New, where it said 1331 was the basis of jurisdiction in a single sentence, not briefed, with no citation even to a case.

[00:11:41] Speaker 03:
Or in HMSI, for example, which predates Councilman, HMSI there, the action was brought as a federal officer mandamus action to challenge a decision of the Board for Correction of Military Records.

[00:11:50] Speaker 03:
And so that, we agree, presents a situation where a court can engage in that kind of review.

[00:11:55] Speaker 03:
I think the extent you've described, Everett, to me, it sounds no different from the other cases in which this court simply hasn't engaged with the relevant questions or the analysis of councilmen itself.

[00:12:05] Speaker 03:
And that's what we're urging the court to do here.

[00:12:07] Speaker 03:
We think it's imperative, frankly, that this court address that question and provide guidance to the district courts, because as we noted, we're seeing an increasing number of these suits.

[00:12:15] Speaker 05:
Everett was decided just a few months after councilmen, and they made the point of saying,

[00:12:20] Speaker 05:
saying, you know, councilmen in the court took briefing on jurisdiction.

[00:12:30] Speaker 05:
We've long held in our circuit that there is collateral review in district courts for non-custodial plaintiffs.

[00:12:40] Speaker 05:
And our court construed councilmen to not affect

[00:12:50] Speaker 05:
its prior holdings, including a case called Gallagher and others prior to Councilman, that there was jurisdiction.

[00:13:00] Speaker 05:
And to take your point that footnote 13 of Councilman in the text where the court seemed to adopt the reasoning of the First Circuit in those two cases, Davies and Ash, I think they are

[00:13:15] Speaker 05:
seems to endorse the First Circuit's reasoning, and the First Circuit was critical of our Circuit's view of this in Gallagher.

[00:13:30] Speaker 05:
So one could say,

[00:13:32] Speaker 05:
that perhaps the Supreme Court was kind of impliedly criticizing the expansive view that had been previously adopted in the DC Circuit.

[00:13:51] Speaker 05:
All of those are kind of like fair points that could be made, but

[00:13:55] Speaker 05:
That issue seemed to be directly before the court in average, and it didn't think that Councilman affected its prior precedent at all.

[00:14:07] Speaker 05:
So why aren't we bound by that?

[00:14:10] Speaker 03:
So I'd make three points about that, Char.

[00:14:11] Speaker 03:
First of all, I think all those cases have to be understood in the context of the dispute that had arisen about the effect of Article 76 of the UCMJ.

[00:14:19] Speaker 03:
and USC 876 that was at issuing Councilman and was issuing Gallagher and other cases that predated Councilman, which is that the government had taken the position that Article 76 actually stripped all jurisdiction for any collateral review, even collateral review that pre-existed the UCMJ.

[00:14:37] Speaker 03:
And what this court had rejected in Gallagher and what other courts had rejected at times was that broad theory of jurisdiction.

[00:14:43] Speaker 03:
And that's exactly what the Supreme Court rejected in Councilman.

[00:14:47] Speaker 03:
It said, look, Article 76 doesn't have that broad effect.

[00:14:50] Speaker 03:
And so what this court's statements since Councilman, and it sounds like Averick is in this category as well, have said is, well, yeah, the Supreme Court and Councilman held that we're not limited to the Article 76

[00:15:03] Speaker 03:
does not bar collateral review of court martial judgments and doesn't strip our jurisdiction to entertain those suits.

[00:15:10] Speaker 03:
And that's absolutely correct.

[00:15:11] Speaker 03:
It's just that what councilman says is that there has to be, you know, relief has to be sought in an action otherwise within the court subject matter jurisdiction.

[00:15:19] Speaker 03:
So, I mean,

[00:15:21] Speaker 03:
It's just that, you know, in cases where the court has not focused on the question of what the relief is sought, what relief is being sought and what the basis of that jurisdiction is, the fact that it acknowledged the plain holding of Councilman, which is to reject the government's broad jurisdictional argument, is I think not- And in Councilman itself, what was that otherwise basis for subject matter jurisdiction?

[00:15:44] Speaker 03:
So the particular suit in Councilman was an injunctive action against the secretary in an effort to stop an ongoing court-martial.

[00:15:52] Speaker 03:
And so there, 1331 was the basis of jurisdiction because that's the basis of jurisdiction for any sort of injunctive suit against a federal officer brought on the basis of a federal question.

[00:16:02] Speaker 03:
So that was the basis for the suit there because it was an injunctive action.

[00:16:06] Speaker 03:
It didn't seek to vacate or alter a court-martial conviction because there was no conviction to vacate or alter.

[00:16:13] Speaker 03:
And the court and councilman wins it pains to say, look, you know, there is no direct ability to review the judgments of a court-martial.

[00:16:22] Speaker 03:
At that time, Supreme Court didn't even have certiorari jurisdiction.

[00:16:25] Speaker 03:
to review the judgments of the highest military court.

[00:16:29] Speaker 03:
So it starts out from that basic premise and then says, look, just the basic principles of the law of judgments, the well-settled principles that govern collateral review of judgments across court systems apply with full force to court martial judgments.

[00:16:42] Speaker 03:
And so what you need is some action otherwise within district court subject matter jurisdiction.

[00:16:47] Speaker 03:
And then you can seek relief from the collateral consequences.

[00:16:50] Speaker 03:
That's a habeas action.

[00:16:51] Speaker 03:
That's a back pay suit.

[00:16:52] Speaker 03:
There may be others.

[00:16:53] Speaker 03:
But I mean, those are kind of the

[00:16:54] Speaker 03:
quintessential.

[00:16:56] Speaker 05:
In the First Circuit case that Councilman approving the sites at footnote 13 and you talk about in your brief, the First Circuit held that there was jurisdiction and indeed granted relief and granted an injunction

[00:17:12] Speaker 05:
based on the Sixth Amendment, ineffective assistance of counsel claim that they found had been established.

[00:17:20] Speaker 05:
But the injunction was to order the military authorities to reconsider an administrative

[00:17:33] Speaker 03:
So Ash, the case you're referring to, the first of the two First Circuit cases that are cited in Councilman.

[00:17:39] Speaker 03:
Ash, the service member, went to the Board for Correction of Military Records.

[00:17:42] Speaker 03:
He followed that process.

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And the Board for Correction of Military Records denied an alteration in the character of the discharge.

[00:17:49] Speaker 03:
And then he sought mandamus under the federal officer mandamus statute, 28 U.S.C.

[00:17:53] Speaker 03:
1361, and said, no, no, you have a duty to upgrade my discharge because the conviction on which it is based is void.

[00:18:01] Speaker 03:
And the first circuit said, yes, we have jurisdiction to entertain that kind of suit.

[00:18:05] Speaker 03:
And we grant the writ of mandamus.

[00:18:07] Speaker 03:
We think that that was correct.

[00:18:09] Speaker 03:
But then a few years later in Davies, which is the second case, we have an individual who comes in and says, that individual actually already gotten an upgrade from the board.

[00:18:19] Speaker 03:
But then he comes in and he files an action for a declaratory judgment.

[00:18:21] Speaker 03:
And he says, I need you, federal court.

[00:18:24] Speaker 03:
to wipe out this judgment and totally eliminate it.

[00:18:29] Speaker 03:
And the First Circuit says, well, we can't do that.

[00:18:32] Speaker 03:
We have no direct jurisdiction to review the military courts.

[00:18:36] Speaker 03:
And unlike Ash, which sought, quote, collateral administrative relief, you're just here asking us to vacate, alter, ignore, declare void a judgment of a coordinate court system, and we can't do that.

[00:18:49] Speaker 03:
And that's exactly what the distinction that footnote 13 and council modes are referring to

[00:18:53] Speaker 03:
sets up.

[00:18:54] Speaker 03:
It says, look, you'll compare these two cases.

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That's the difference.

[00:18:56] Speaker 03:
You can go through the administrative process.

[00:18:58] Speaker 03:
You can seek review.

[00:18:59] Speaker 03:
Bergdahl, of course, hasn't done that here.

[00:19:01] Speaker 03:
But that is another available route by which you can question the validity of the judgment.

[00:19:07] Speaker 03:
And then there is an action otherwise within the court subject matter jurisdiction to get review of that in federal district court.

[00:19:14] Speaker 04:
Can I take you back to expungement for a minute?

[00:19:18] Speaker 04:
Because I had the same reaction as the chief judge.

[00:19:20] Speaker 04:
It's not quite sure what to make of it.

[00:19:24] Speaker 04:
So I look at the jurisdictional framework, and it seems pretty obvious to me that district court cannot formally vacate the judgment of conviction.

[00:19:40] Speaker 04:
That sounds appellate.

[00:19:42] Speaker 04:
But some kinds of collateral relief are available and the obvious ones are habeas for custody and back pay for money and those address some but not all consequences of a judgment.

[00:19:59] Speaker 04:
There's another.

[00:20:03] Speaker 04:
theory of lateral review.

[00:20:07] Speaker 04:
I believe courts, there's a mechanism to, for administrative correction records.

[00:20:17] Speaker 04:
And that sounds to me

[00:20:20] Speaker 04:
Like, what happens in that sort of action and how is that different from expungement?

[00:20:28] Speaker 03:
You're talking about the military's process for administrative correction of records.

[00:20:31] Speaker 03:
Right.

[00:20:31] Speaker 03:
So an individual can petition one of the relevant board for correction of military records.

[00:20:35] Speaker 03:
There's one for each.

[00:20:36] Speaker 04:
And what happens if you get the record corrected?

[00:20:40] Speaker 03:
Well, so what Congress has said is that with respect to court martial judgments, those boards are limited in their power.

[00:20:48] Speaker 03:
They may upgrade the character of a discharge for purposes of clemency, but they cannot act on the conviction itself.

[00:20:54] Speaker 03:
They cannot vacate, eliminate, alter the judgment, except insofar as they may grant clemency and upgrade the character of a discharge.

[00:21:01] Speaker 03:
Can they reinstate the service member?

[00:21:03] Speaker 03:
I don't believe that's an available remedy, because I think that, you know, but I'm not sure for someone who's, I mean,

[00:21:11] Speaker 03:
Commonly, these are brought by people who are already out of the service and generally don't want to go back in the service.

[00:21:16] Speaker 03:
They generally want.

[00:21:17] Speaker 03:
So I'm not aware that they could do that.

[00:21:19] Speaker 03:
I haven't looked to see precisely.

[00:21:20] Speaker 04:
But at a minimum, it just seems like one plausible line between appellate and collateral review is, will the judicial relief wipe away all the consequences of the judgment?

[00:21:39] Speaker 03:
I certainly think that's one way to think about it.

[00:21:41] Speaker 03:
And I think that the relevance of that administrative process is just to illustrate how remarkable it would be if a federal district court could have more authority than the very bodies Congress has tasked with reviewing these requests and could, in some sense, eliminate these judgments in a way that that very body isn't empowered to do after someone has exhausted all their direct appeals within the military boards and had a fully-affirmed judgment.

[00:22:09] Speaker 03:
I think the analogy to state court proceedings is helpful.

[00:22:11] Speaker 03:
I mean, I'm not aware of cases in which individuals come in and say they would like, you know.

[00:22:17] Speaker 03:
federal court order the expungement of state court judgments or try to wipe out all the effects.

[00:22:23] Speaker 03:
Typically, what you see is a habeas petition.

[00:22:25] Speaker 03:
And everyone recognizes in habeas that you're not reviewing the judgment.

[00:22:29] Speaker 03:
You're reviewing the lawfulness of the detention itself and that the judgment itself is ultimately unaffected.

[00:22:36] Speaker 03:
It's going to remain on the books.

[00:22:37] Speaker 03:
You may be able to go pursue some state process to get that judgment wiped away in some fashion after you've been granted habeas.

[00:22:44] Speaker 03:
But habeas itself doesn't act

[00:22:45] Speaker 04:
This administrative correction thing, it only happens pursuant to the statutorily authorized scheme, administrative review, and then whatever limited judicial review is available from that.

[00:23:02] Speaker 04:
It never happens through 1331 as a purportedly original action.

[00:23:08] Speaker 03:
Right.

[00:23:09] Speaker 03:
I mean, this court has not been specific about what jurisdictional basis it reviews those decisions under, whether that's 1331, which is, of course, the basis for most suits under the APA.

[00:23:20] Speaker 03:
And the cases where it has been specific, such as HMSI, it specified it was reviewing it as a matter of the federal officer mandamus statute using 1361.

[00:23:29] Speaker 03:
So, but to my knowledge, a lot of the other court, this court's other decisions review other decisions not related of the boards, not related to, you know, void court martial convictions.

[00:23:39] Speaker 03:
I don't know if they've specified which source of jurisdiction is being invoked.

[00:23:43] Speaker 02:
So there is collateral review of that administrative apparatus.

[00:23:49] Speaker 03:
I mean, calling it collateral review is a little awkward.

[00:23:51] Speaker 03:
It's collateral review of the judgment of the military courts in the sense that you can call into question the validity of the judgment.

[00:23:57] Speaker 03:
It's a sort of direct review of the administrative decision.

[00:24:01] Speaker 03:
It's a little bit awkward.

[00:24:02] Speaker 03:
Terminology is.

[00:24:04] Speaker 04:
If you see it.

[00:24:06] Speaker 04:
If a military administrative board declines to correct records, that can be reviewed.

[00:24:17] Speaker 03:
Correct.

[00:24:17] Speaker 03:
That is HMSI.

[00:24:18] Speaker 03:
That is what happened in HMSI.

[00:24:20] Speaker 03:
This court, the individual was denied relief by the board for correction of military records.

[00:24:25] Speaker 03:
The district court

[00:24:26] Speaker 04:
And that goes to district court.

[00:24:27] Speaker 04:
There's no specialized review scheme channeling it to a court of appeals.

[00:24:32] Speaker 04:
I believe that's correct.

[00:24:33] Speaker 04:
Yes.

[00:24:33] Speaker 03:
And in fact, in HMSI, it went to district court first.

[00:24:35] Speaker 03:
It came to this court, and this court actually affirmed the grant of mandamus relief on the ground that there had been a fundamental constitutional error in HMSI's court martial.

[00:24:44] Speaker 03:
And therefore, the board was required as a matter of federal officer mandamus statute.

[00:24:49] Speaker 02:
In the military system, is there

[00:24:51] Speaker 02:
military court review of the administrative body's determination before there's no... Not that I'm aware of, no.

[00:24:59] Speaker 02:
Okay.

[00:24:59] Speaker 02:
Can I ask this question that I think tries to figure out what the dividing line might be between what could be permissible vis-a-vis expungement and what puts expungement in the vacator category and under your theory, which has some force, would be impermissible under collateral review?

[00:25:18] Speaker 02:
And by impermissible, I mean no jurisdiction, not the

[00:25:22] Speaker 02:
the how you do vacator.

[00:25:25] Speaker 02:
If somebody brings an action, suppose Bergdahl brought an action that says, I'm bringing a 1331 action against the secretary of the army.

[00:25:34] Speaker 02:
And what I want the secretary of the army to do is to not expunge my conviction, but expunge the record of my conviction.

[00:25:46] Speaker 02:
So it's expunging the records, not expunging the conviction itself, because I take the point that expunging the conviction, I don't know what the distinction is between expunging the conviction and vacating the conviction.

[00:25:54] Speaker 02:
Maybe there is one, but there are expungement of records which leave the conviction intact.

[00:25:59] Speaker 02:
And suppose the suit that's brought

[00:26:01] Speaker 02:
There may be all kinds of other issues with the suit, but I'm just, for the purposes of this particular argument, that there's no jurisdiction for a district court to take up an action that seeks the relief of the kind that you think is being sought here.

[00:26:17] Speaker 02:
Would that be remedied if the way the suit was framed is not one against the United States that seeks expungement of a conviction, but one against the secretary of the force that seeks expungement of the records of the conviction?

[00:26:31] Speaker 03:
So two threshold things about that.

[00:26:33] Speaker 03:
So first of all, by suing the officer, you would obviously avoid the sovereign immunity problem that this suit is plagued with.

[00:26:38] Speaker 03:
So I mean, that's one reason I assume that you put that part of the hypothetical in there.

[00:26:43] Speaker 03:
So separately, as we pointed out, there's a sovereign immunity problem with this particular suit.

[00:26:48] Speaker 03:
And then separately, of the second, of course, because I think I've pointed out, that isn't the remedy that was actually granted here.

[00:26:54] Speaker 03:
So at a minimum, it couldn't support this judgment.

[00:26:56] Speaker 03:
But it's not obvious to me whether

[00:27:01] Speaker 03:
I certainly agree there would be numerous problems with that suit, whether that's failure to exhaust administrative remedies, whether the provision of those administrative remedies by Congress implicitly forecloses other remedies such as the expungement of the records themselves.

[00:27:17] Speaker 03:
I think all of those issues would be raised.

[00:27:20] Speaker 03:
I think it might present a somewhat different question.

[00:27:22] Speaker 03:
Again, I don't see how you draw the distinction between

[00:27:25] Speaker 03:
expungement and vacancy for purposes of this case, or what records beyond the records of the court martial, frankly, Murdoch cares about having.

[00:27:34] Speaker 02:
In state systems, there's ways to get records of criminal proceedings.

[00:27:40] Speaker 02:
Sometimes it's arrest, sometimes it's indictment, but there's also ways to get records of a conviction expunged.

[00:27:46] Speaker 02:
And in a colloquial way, that's a collateral proceeding because it actually isn't seeking to have anything done with the conviction itself.

[00:27:53] Speaker 02:
It's just saying, I want to be relieved because I was acquitted.

[00:27:58] Speaker 02:
Well, that wouldn't be a conviction, but I want to be relieved because of X, Y, and Z reasons because it's a minor offense and I've been rehabilitated.

[00:28:04] Speaker 02:
And therefore, I just want the record of the conviction gone.

[00:28:07] Speaker 02:
I'm not saying that I want the conviction gone.

[00:28:08] Speaker 02:
The conviction happened.

[00:28:09] Speaker 02:
Right.

[00:28:10] Speaker 03:
So I'm not aware that that is available in federal court.

[00:28:14] Speaker 03:
And even to the extent, as I understand it, I was going to say,

[00:28:17] Speaker 03:
As I understand it, to the extent courts have suggested that it is available, it is because it is the court exercising power over its own records and over its own conditions.

[00:28:26] Speaker 02:
I totally understand.

[00:28:26] Speaker 02:
None of which would be true here.

[00:28:27] Speaker 02:
I get that too.

[00:28:29] Speaker 02:
That would be kind of in the direct revision.

[00:28:30] Speaker 02:
All I'm saying is, and this is not meant to say that on this case, it makes a difference.

[00:28:35] Speaker 02:
What I'm saying is, if the complaint had been styled in that way,

[00:28:40] Speaker 02:
then there may be all kinds of other problems with it, but it seems to me there'd be at least a reasonable basis for thinking it doesn't fall prey to your threshold submission, which is this case is problematic for purposes of appellate review because it's seeking vacator of the conviction or the effective equivalent of vacator of the conviction, but a suit against the secretary that only seeks expungement of the records as opposed to the conviction itself just strikes me for those purposes as potentially being distinct.

[00:29:07] Speaker 03:
I think you could reserve the question of whether a suit like that could go forward, whether under this theory or otherwise, and obviously recognizing the other problems with it.

[00:29:14] Speaker 03:
We certainly don't need you to decide that today for us to win and for this particular judgment to be vacated.

[00:29:20] Speaker 02:
I'm trying to understand the conceptual parameters of your argument.

[00:29:23] Speaker 03:
Right.

[00:29:23] Speaker 03:
I mean, it gets into some questions that obviously weren't briefed here about the availability of an expungement remedy and how that might apply across court systems, which I tend to think just

[00:29:36] Speaker 03:
from my knowledge of that area, at least that I have it, it'd be pretty remarkable to think that there's some power to do that.

[00:29:42] Speaker 03:
Whether that's properly phrased as a 1331 problem or something else, I think the court could leave that for another day.

[00:29:48] Speaker 02:
And just based on your threshold argument, and then can I just follow up on this basis that you've brought up the sovereign immunity question a couple of times.

[00:29:54] Speaker 02:
So when you brought up sovereign immunity in your briefing, it's always kind of the tag along paragraph at the very end that's just

[00:30:00] Speaker 02:
an appendage to the argument that you're already making, as opposed to a standalone, hey, this should be dismissed for sovereign immunity purposes.

[00:30:06] Speaker 02:
And is the reason for that because if the suit were restyled to be one against the secretary, but essentially was the same suit, then that there wouldn't be a sovereign immunity problem.

[00:30:16] Speaker 02:
And that's why you don't have a separate argument heading that this should be dismissed based on sovereign immunity or was there something else going on?

[00:30:23] Speaker 03:
I think the whole premise of the Larson Dugan and Ex parte Young sort of constructs is that you can plead around sovereign immunity.

[00:30:29] Speaker 03:
And part of the reason that we foregrounded the broader question is, as we pointed out in our brief, there has been a certain degree of confusion or at least mission creep from the district court in terms of what it thinks it can do with respect to the military courts and their judgments, what it can review, what questions it believes are in front of it, whether it can enter relief of this type, this district

[00:30:50] Speaker 03:
has seen I think far more suits in the last few years as we pointed out in our brief than any district has seen maybe ever and that's I think in part a product of some of the loose language in some of this court's prior opinions and I think that's why we've would urge the court to reach and decide that question because we think it's critical to giving guidance to the district court.

[00:31:09] Speaker 03:
Of course you could separately you know reverse this on the simple ground that there's no waiver of sovereign immunity

[00:31:15] Speaker 03:
but we think it's imperative that the court reach the more central question, jurisdictional question here that applies more broadly.

[00:31:24] Speaker 05:
Make sure my colleagues don't have additional... Just getting to the merits, assume we need to get to the merits.

[00:31:38] Speaker 05:
Isn't it the case that there are

[00:31:45] Speaker 05:
recusal issues that rise to the level of due process violation and the standard seems to be based on Caperton and all of the cases at its sites and you kind of follow it back simply whether looking at it, the judge sitting on the case

[00:32:10] Speaker 05:
whether it would offer a possible temptation to the average judge to lead them to not hold the balance nice, clear, and true is what the standard is.

[00:32:22] Speaker 05:
So, do you disagree that that's the standard to establish a due process violation?

[00:32:31] Speaker 03:
Caperton certainly sets out the relevant standard, and it emphasizes that that standard is a very high bar.

[00:32:37] Speaker 03:
There are certainly lots of circumstances that would be covered by the rules that are not due process issues.

[00:32:43] Speaker 03:
And that's why the number of cases in which the Supreme Court has found a due process problem with an adjudicator are, you can count them pretty much on one hand.

[00:32:52] Speaker 03:
So I don't dispute that Caperton lays out the relevant standard, but it's not that

[00:33:01] Speaker 05:
Well, you portray this as just simply a case where maybe there was a violation of a rule or of a statute, but it's not a violation of due process.

[00:33:13] Speaker 05:
And I just wanted to engage with you on that when the Supreme Court hasn't said that there's got to be a direct pecuniary kind of benefit

[00:33:30] Speaker 05:
for a judge sitting on a case for it to violate due process.

[00:33:37] Speaker 05:
The judge can have a kind of pecuniary interest that's like indirect and still meet due process.

[00:33:51] Speaker 05:
In here, you have a situation where the allegations are that the judge

[00:33:57] Speaker 05:
was applying for a job with the United States in the executive branch, which is headed by the president.

[00:34:07] Speaker 05:
The president wanted a specific outcome, made that very clear.

[00:34:12] Speaker 05:
The applicant even touted this case

[00:34:20] Speaker 05:
on his job application as one of the key parts of why he was qualified for this job in the executive branch and went so far as to include a ruling he had made on a key issue in this case as his writing sample.

[00:34:45] Speaker 05:
So the applicant linked this case

[00:34:50] Speaker 05:
kind of wanted to ride this case as a basis to get this job, which obviously would provide a pecuniary benefit if he got it.

[00:35:07] Speaker 05:
Instead of sitting on his porch in his rocking chair collecting his military pension, he can double dip.

[00:35:16] Speaker 05:
get another salary and continue a continuous legal career.

[00:35:21] Speaker 05:
So why in the world doesn't that meet the Caperton stand?

[00:35:28] Speaker 03:
I think when you go back and look at TUME and the pecuniary interest cases specifically that address the due process standard, what those cases make clear is that it does have to be a relatively direct relationship between the claimed interest and the judicial decision.

[00:35:42] Speaker 03:
So I mean in TUME it was you get paid only if you convict and it's immediate dollars in your pocket.

[00:35:49] Speaker 03:
In Lavoie, what the Supreme Court said was, well, one justice who has a pending claim whose value will absolutely skyrocket if he decides the claim is viable, in another case, that person has a conflict.

[00:36:01] Speaker 03:
But the other justices of the Alabama Supreme Court who are just potential class members in that lawsuit don't have a disqualifying interest as a due process matter, that their interest is too speculative and remote.

[00:36:14] Speaker 03:
So that kind of tight nexus is what the Supreme Court has looked for.

[00:36:18] Speaker 03:
And so here what you have is a situation where there are a lot of things that have to happen between Judge Nance submitting his application and getting the job.

[00:36:28] Speaker 03:
any of which could lead to him not getting or getting the job, independent of anything going on in this case.

[00:36:34] Speaker 03:
There's no allegation that his military salary or his military pension is in any way dependent on his decision here.

[00:36:39] Speaker 03:
It's all about the speculation of, okay, well, if he does this, if he does that, if he succeeds at the interview, if he impresses the right people, if his resume is good, if they have enough positions, maybe he'll get hired.

[00:36:49] Speaker 03:
That's a much more attenuated chain than anything the court

[00:36:53] Speaker 05:
But he has put an issue that if you think I've done a good job in this case, in this very important case, that's the reason why you should hire me.

[00:37:05] Speaker 03:
Your honor, that's no different, I would just say, from anybody campaigning for a judgeship.

[00:37:09] Speaker 03:
And we don't think that's a due process problem.

[00:37:11] Speaker 03:
I think, if anything, this is less problematic than someone campaigning for a judgeship who is obviously their activities on the bench are going to be known if they're running for re-election.

[00:37:20] Speaker 03:
But at the same time, just on those facts, I just want to point out

[00:37:25] Speaker 03:
The particular writing sample he submits is repeatedly critical of the president's statements.

[00:37:30] Speaker 03:
And in fact, says that the statements, he denies the motion in that writing sample for reasons that are legal reasons that are uncontested here in the district court did not question.

[00:37:41] Speaker 03:
And in the event, we know that what Judge Nance did did not look anything like what the president requested.

[00:37:47] Speaker 03:
And in fact, the president was relatively displeased with the ultimate result.

[00:37:52] Speaker 03:
I think it's a little hard.

[00:37:53] Speaker 05:
Things he could have done that he didn't do was to say this should be a special court march, right?

[00:37:59] Speaker 03:
No, Judge Nance could not have done that.

[00:38:01] Speaker 03:
That's not within Judge Nance's power.

[00:38:02] Speaker 05:
That was only within the convening authority's power.

[00:38:06] Speaker 03:
Judge Nance, at the time, the only things Judge Nance did from the time he submitted the application to the time

[00:38:13] Speaker 03:
relevant here is that Judge Nance accepted Bergdahl's voluntary guilty pleas, which Bergdahl does not suggest were involuntary or weren't serious, and then sentenced Bergdahl to the sentence that Bergdahl himself requested, which was a dishonorable discharge.

[00:38:27] Speaker 03:
He denied the third unlawful command influence motion, but the third unlawful command influence motion requested as its relief either a sentence of no confinement or a punitive discharge.

[00:38:41] Speaker 03:
That's what Bergdahl asked for.

[00:38:42] Speaker 05:
That's what he got.

[00:38:43] Speaker 05:
It requested what?

[00:38:46] Speaker 03:
So the third motion, which was filed after the plea, Bergdahl requested as the relief, not dismissal of the case, which is what he had requested in the first two motions, but instead requested either no punishment or no confinement sentence.

[00:39:02] Speaker 03:
That was the relief requested in the motion.

[00:39:04] Speaker 03:
The district court here, erroneously at a couple of points in his opinion, says that he requested dismissal.

[00:39:08] Speaker 03:
We've cited the relevant pages of the record that show that's not correct.

[00:39:12] Speaker 05:
And a discharge other than dishonorable discharge was not an option.

[00:39:20] Speaker 03:
I don't know if that would have been an option.

[00:39:22] Speaker 03:
But remember, Bergdahl himself had requested a dishonorable discharge.

[00:39:26] Speaker 03:
And as the Army Court of Criminal Appeals pointed out, it would have been pretty remarkable not to accept that, given that, frankly, he could have, and in the prosecution's view, should have, gotten a much more severe sentence that included confinement.

[00:39:42] Speaker 04:
Sorry.

[00:39:43] Speaker 05:
No, I'm finished.

[00:39:46] Speaker 04:
Assuming we reach the merits, what do you think should be our scope and standard of review?

[00:39:54] Speaker 04:
That's another area in which our cases might have some tensions.

[00:39:58] Speaker 03:
Right.

[00:39:58] Speaker 03:
Well, I think while you correctly point out that this court has expressed some difficulty figuring out exactly what the standard is for non-custodial cases, the one commonality across habeas and non-custodial cases is that the error

[00:40:13] Speaker 03:
asserted has to be juris

[00:40:17] Speaker 03:
And the district court here, I think everyone recognizes, ruled solely on a rule-based issue.

[00:40:22] Speaker 03:
So all the rule-based things fall out.

[00:40:25] Speaker 03:
Yes.

[00:40:25] Speaker 03:
And I think that's why there's now this argument about sort of a to me type due process problem, which the district court did not accept.

[00:40:33] Speaker 03:
And in fact said it wasn't finding any actual bias here.

[00:40:35] Speaker 04:
Do you accept that with regard to constitutional due process claims, the standard of review is de novo?

[00:40:46] Speaker 03:
Well, there's a few issues wrapped up in there.

[00:40:51] Speaker 03:
So one is, to the extent the military courts have already considered a particular question, that's not something that a federal court can, in collateral review, necessarily revisit.

[00:41:02] Speaker 03:
And what Councilman itself says about non-custodial cases is that only certain errors are going to rise to the level of

[00:41:09] Speaker 04:
He said, jurisdictional or constitutional.

[00:41:12] Speaker 04:
Sort of fundamental constitutional areas.

[00:41:14] Speaker 04:
To focus on the constitutional.

[00:41:15] Speaker 04:
Is it de novo review?

[00:41:17] Speaker 04:
I mean, that seems kind of extraordinary since we don't do that in regular civil habeas.

[00:41:24] Speaker 03:
We don't.

[00:41:24] Speaker 03:
And I think, again, where the military courts have considered a question, I don't think, for example, if you look at the 10th Circuit's military habeas jurisprudence, which is by far the most developed because of Fort Leavenworth, I think they make very clear they are looking, first of all, for constitutional errors.

[00:41:38] Speaker 03:
And then they're providing where the military courts have engaged in full and fair review of those questions.

[00:41:43] Speaker 03:
They are not going to question those to the extent that those courts have engaged those questions.

[00:41:50] Speaker 03:
The complication here, of course, is that Bergdahl did not timely raise this particular claim before the military courts.

[00:41:55] Speaker 03:
And so I think his submission is, well, you should review it de novo because it was never.

[00:42:01] Speaker 03:
passed upon by the military courts.

[00:42:03] Speaker 03:
We think that falls to the extent there are comparable doctrines.

[00:42:06] Speaker 03:
It's doctrines of procedural default and other things that come out of the habeas context where he would have to show cause and prejudice and other things.

[00:42:16] Speaker 04:
But to overcome the Army Court of Appeals ruling on essentially procedural default.

[00:42:25] Speaker 03:
Yes, I think that's right, that he would need to show that, you know, what the Arctic Corps and Colonel Bill held on his quorum nobis petition was that he could and should have raised this question earlier, and he had failed to do so.

[00:42:38] Speaker 03:
And that application by a military court of the military's own procedural rules and own procedural precedence is not a basis on which the district court can revisit that particular question.

[00:42:49] Speaker 03:
federal courts and habeas for state convictions don't sit to review state court's applications of their own procedural timeliness rules and other rules, and it's no different for the military courts.

[00:43:03] Speaker 04:
default ruling itself violates due process.

[00:43:06] Speaker 03:
Right.

[00:43:07] Speaker 03:
And I don't think there's any real claim of that here, particularly where, I mean, he briefed the question of whether he had timely raised it.

[00:43:13] Speaker 03:
He knew he had to brief it.

[00:43:15] Speaker 03:
It's throughout, it's one of the primary issues in the briefing on the Quorum Novus Petition and the Army Court of Criminal Appeals rejected on precisely that ground.

[00:43:24] Speaker 03:
That judgment shouldn't, it's not something a court can revisit in any event.

[00:43:28] Speaker 03:
seems plainly correct insofar as Bergdahl clearly knew about Judge Nance's application at the time that the CAF's judgment was issued.

[00:43:37] Speaker 03:
Judge Nance had been announced as an immigration judge.

[00:43:39] Speaker 05:
How do you say he clearly knew about it?

[00:43:40] Speaker 03:
Because he submitted a FOIA request for it the same day that the CAF issued its opinion.

[00:43:44] Speaker 03:
So clearly he knew about it that day.

[00:43:46] Speaker 03:
He's never said when he learned about it, presumably

[00:43:50] Speaker 03:
before that date or at the latest that date.

[00:43:56] Speaker 05:
But I mean, that's what I'm trying to get at.

[00:44:00] Speaker 05:
Why is the presumption that he had to know about it the day before he submitted?

[00:44:06] Speaker 03:
I'm not saying there's an assumption he had to know about the day before, but he's never said that he learned about it the day of the CAFS decision.

[00:44:12] Speaker 03:
He has never said when he learned about it, which he would have needed to show to demonstrate that he'd acted in a timely way.

[00:44:17] Speaker 03:
But I think the inference you can draw from that is that he knew before the day of the CAFS decision.

[00:44:23] Speaker 03:
And if that's true, then there's every reason to think that he should have sought the application the day before the CAFS decision, or two days before, or a week before, whenever he learned about it.

[00:44:36] Speaker 02:
Thank you, Council, for your time for rebuttal.

[00:44:44] Speaker 01:
Thank you.

[00:44:45] Speaker 01:
Good morning.

[00:44:46] Speaker 01:
May I please record with me at the council table is Professor Frank Rosenblatt, co-council with me in this case from the beginning.

[00:45:03] Speaker 01:
Let me

[00:45:06] Speaker 01:
Let me begin with what I think the court ought to be focusing on.

[00:45:19] Speaker 01:
And I will be happy to respond to a number of the points that were made in the government submission and in response to some of the questions from the bench.

[00:45:35] Speaker 01:
It seems to me, and I have to confess, I'm torn on what I'm about to say, but it seems to me that the chief question before this court is, does this court grasp the nettle and address the unlawful command to influence issue based on a full record that includes the various problems?

[00:46:00] Speaker 01:
What I'll call for shorthand the Nishiri piece

[00:46:04] Speaker 01:
or does this court remand to the district court, to Judge Walton, to do what we think should have been done in the first place.

[00:46:18] Speaker 01:
To this instant in time, no court has taken

[00:46:23] Speaker 01:
Colonel Nance's job situation and his representations as to his personal plans into account in connection with the unlawful committed influence issue to which Your Honor averted before.

[00:46:39] Speaker 01:
No court has done that.

[00:46:43] Speaker 01:
The Army Court of Criminal Appeals on Corum Nobis

[00:46:52] Speaker 01:
did not do that.

[00:46:55] Speaker 01:
They said we were too late.

[00:46:57] Speaker 01:
And we've fully gone into this in the briefs.

[00:47:02] Speaker 01:
I don't know what more we can say.

[00:47:03] Speaker 01:
Until we obtained the job application, we did not know that Judge Colonel Nance had applied during the trial.

[00:47:14] Speaker 01:
And we could not have known that his representations to us about his future plans were frugal with information.

[00:47:27] Speaker 01:
And as a result, as we briefed this, we were not on inquiry notice to turn over every stone.

[00:47:37] Speaker 01:
And if I can say very, very briefly on this point, and then I'd like to move on to a number of the other points and the quandary that I referred to at the beginning, the Supreme Court, excuse me, the Sixth Circuit and the

[00:47:58] Speaker 01:
The case that we cited in the Listeki case said, look, the problem on a nondisclosure of a potential disqualification rests with the judge who should have made the disclosure.

[00:48:16] Speaker 01:
And if you go back and look at the, and I may be mispronouncing this case name too, the Lilliburg case, you'll see that the last point in the Supreme Court's opinion says, look, we wouldn't even have this problem

[00:48:31] Speaker 01:
had the trial judge made a candid disclosure of the concerning conflict of interest.

[00:48:37] Speaker 01:
So this whole fixation that the government has had about who knew what when, PS, they never disclosed when they first found out that Judge Colonel Nance had filed to become an immigration judge is besides the point.

[00:48:54] Speaker 01:
The burden here was on Colonel Nance to disclose rather than for us to go rummaging and make a FOIA request.

[00:49:01] Speaker 02:
Can I take you to, and there may well be questions about that to understand some of the dynamics in terms of the dates and those things, but can I just take you back to the threshold argument that the government makes, which is that there's no jurisdiction on collateral review to do what the district court did here and I think what you asked for.

[00:49:22] Speaker 02:
And in terms of what you asked for, I'm looking at the conclusion of your brief before us

[00:49:27] Speaker 02:
which ends by saying, the case should be remanded with instructions to set aside the court martial and all related proceedings and dismiss the charges and specifications with prejudice.

[00:49:38] Speaker 02:
So I take it what you're asking for in this case is set aside, which I think is vacator.

[00:49:46] Speaker 02:
Dismissal with prejudice means nothing can ever be brought again.

[00:49:51] Speaker 02:
How is that appropriate for a district court to do on collateral review?

[00:49:56] Speaker 02:
Because that's not collateral relief.

[00:49:59] Speaker 02:
That's the kind of relief you get on direct review.

[00:50:02] Speaker 02:
All collateral review, as far as I'm aware,

[00:50:06] Speaker 02:
takes the judgment as a given and then deals with consequences of the judgment.

[00:50:11] Speaker 02:
But by your own framing of the conclusion if you're briefed before us, you're not taking the judgment as a given.

[00:50:17] Speaker 02:
In fact, you're trying to set aside the judgment, which just seems like the type of thing one would do on direct review, including cert in the Supreme Court, but not before us and not before the district court.

[00:50:28] Speaker 01:
Got it.

[00:50:29] Speaker 01:
I want to make a couple of remarks in that connection.

[00:50:32] Speaker 01:
The first is,

[00:50:35] Speaker 01:
The reference to the collateral review of other court systems is really a reference to state court systems.

[00:50:49] Speaker 01:
The prosecution in this case was a prosecution in the name of the United States.

[00:50:53] Speaker 01:
This is not some foreign court.

[00:50:54] Speaker 01:
It's not a court of the state of Maryland.

[00:50:58] Speaker 01:
So there's a kind of category error, I believe.

[00:51:01] Speaker 01:
But let me assume that there's some metaphysical

[00:51:06] Speaker 01:
harmony between those two points.

[00:51:10] Speaker 01:
To me, that's a major issue.

[00:51:12] Speaker 01:
Section 1331 doesn't have an exception.

[00:51:15] Speaker 01:
It talks about all federal questions.

[00:51:20] Speaker 01:
And this is a federal question.

[00:51:21] Speaker 01:
So there's a sense in which we're on a different wavelength entirely from the government on this.

[00:51:27] Speaker 01:
But setting that aside, if you look back to what we requested

[00:51:37] Speaker 01:
from the Court of Appeals for the Armed Forces, which I'll call CAF for convenience purposes.

[00:51:48] Speaker 01:
We requested their dismissal with prejudice or in the alternative, a sentence of no punishment.

[00:51:53] Speaker 01:
In the complaint, which I think is the ultimate governing document,

[00:52:04] Speaker 04:
I have it right here.

[00:52:06] Speaker 04:
Order that the conviction be expunged and that all rights, privileges and property of which he has been deprived by reason of the conviction be restored.

[00:52:22] Speaker 04:
You are asking for a formal set aside, a set aside as a formal matter, and you are asking for all of the relief you would get on direct review as a substantive matter.

[00:52:37] Speaker 01:
Judge Katz, you neglected to read the proceedings.

[00:52:41] Speaker 01:
prayer, which is the first one, which reads as follows on page 487 of the Joint Appendix.

[00:52:48] Speaker 01:
We pray that the court enter judgment declaring that his conviction and sentence were obtained in violation of the Fifth Amendment RCM 104A1 and 902 and rule 2.1, one of the rules of judicial conduct for army trial and appellate judges.

[00:53:02] Speaker 01:
That was the primary relief we asked for.

[00:53:05] Speaker 01:
Sorry, go ahead.

[00:53:08] Speaker 04:
That doesn't get you anything more.

[00:53:10] Speaker 04:
raises the question whether the Declaratory Judgment Act gives you an independent basis for jurisdiction.

[00:53:17] Speaker 01:
The basis of jurisdiction is section 1331 and the Fifth Amendment raises a federal question as do the other regulations.

[00:53:28] Speaker 02:
I think the logical upshot of that would be I think that

[00:53:33] Speaker 02:
than on collateral review.

[00:53:36] Speaker 02:
And it has to be collateral review because there's habeas challenges that are brought.

[00:53:40] Speaker 02:
Nobody thinks that habeas is something other than collateral review.

[00:53:44] Speaker 02:
So then you could always bring a 1331 action that seeks nothing other than a declaration that a court marshal was invalid.

[00:53:54] Speaker 02:
invalid under the Constitution and a federal rule?

[00:53:57] Speaker 02:
Yes.

[00:53:58] Speaker 02:
So that's your submission is that put aside your second prayer for relief, paragraph B, just paragraph A. If this was only a paragraph A suit, then every time there's a court martial goes all the way up to the Supreme Court search denied, then the person who's the subject of the court martial can always bring

[00:54:15] Speaker 02:
a 1331 collateral action that seeks nothing other than a declaration that the court marshal was invalid.

[00:54:21] Speaker 02:
Yes, that is our submission.

[00:54:24] Speaker 02:
OK, then can I ask you on B, put aside A for a second and just let me ask you about B, which is the expungement period.

[00:54:34] Speaker 02:
Is there any difference between what you're seeking in B and asking for set aside of the conviction?

[00:54:49] Speaker 01:
I see.

[00:54:50] Speaker 01:
I take your point now.

[00:54:51] Speaker 01:
I'm following.

[00:54:54] Speaker 01:
You could argue that a conviction can be expunged.

[00:55:02] Speaker 01:
Expungement means expunging records typically.

[00:55:07] Speaker 01:
that a conviction could be expunged and yet continue to enjoy some juridical status.

[00:55:15] Speaker 01:
For example, I'm thinking on my feet here, but the law, as I understand it, with respect to pardons,

[00:55:25] Speaker 01:
is that a pardon leaves the conviction intact.

[00:55:28] Speaker 01:
And please correct me if I'm mistaken on that.

[00:55:31] Speaker 01:
So there is some possibility here.

[00:55:34] Speaker 01:
We're dealing in a bit of metaphysics.

[00:55:36] Speaker 01:
But there is some possibility that a conviction could survive.

[00:55:41] Speaker 01:
in some ethereal way.

[00:55:44] Speaker 02:
I mean, that could be the case with the pardon.

[00:55:46] Speaker 02:
It depends on various things.

[00:55:48] Speaker 02:
But is that what you're talking about?

[00:55:49] Speaker 02:
Because then why in your brief to us are you saying the case should be remanded with instruction to set aside the court martial and all related proceedings and dismiss the charges and specifications with prejudice?

[00:56:00] Speaker 01:
If you were to read that,

[00:56:04] Speaker 01:
Excuse me, if you were to enter an order declaring the conviction to have been obtained in violation of the Fifth Amendment, et cetera, that would be substantial relief as to which we do not believe there is a significant jurisdictional question.

[00:56:23] Speaker 01:
That's on the declaration part.

[00:56:25] Speaker 02:
What's that?

[00:56:26] Speaker 02:
That's on the declaration part.

[00:56:28] Speaker 02:
Now, what would happen?

[00:56:30] Speaker 02:
A declaration doesn't set aside a conviction.

[00:56:32] Speaker 02:
I'm sorry?

[00:56:32] Speaker 02:
A declaration doesn't set aside a conviction.

[00:56:35] Speaker 01:
Yes, that is correct.

[00:56:37] Speaker 01:
It doesn't.

[00:56:38] Speaker 01:
So my friend has invited the court's attention to the record correction process.

[00:56:45] Speaker 01:
And I know the panel has had some questions about that.

[00:56:52] Speaker 01:
And they have faulted us for failing to go to the correction board.

[00:56:56] Speaker 01:
You don't have to exhaust a futile remedy.

[00:57:00] Speaker 01:
And the statute, if you look at the statute for the correction of records, it says that you cannot get relief other than for clemency purposes from the board for correction of military records.

[00:57:11] Speaker 01:
So that is not responsive to the matter at hand.

[00:57:17] Speaker 01:
We cannot go there and ask.

[00:57:19] Speaker 01:
It would be a complete waste of everybody's time and effort to go to the correction board.

[00:57:23] Speaker 01:
That's the remedy.

[00:57:25] Speaker 01:
It's like the sign you see in the Tex-Mex restaurants.

[00:57:30] Speaker 01:
Tenemos pero no hay.

[00:57:31] Speaker 01:
We have it, but we don't have any.

[00:57:34] Speaker 01:
It's an illusory claim.

[00:57:37] Speaker 01:
The correction boards cannot grant that relief.

[00:57:41] Speaker 01:
So that is just in response to that.

[00:57:43] Speaker 01:
But I wanted to make a couple of other observations, if I may.

[00:57:47] Speaker 05:
I'd like you to respond directly to the argument made that I think is the linchpin of the government's lack of jurisdiction argument.

[00:58:01] Speaker 05:
Yes.

[00:58:01] Speaker 05:
That the sentence that precedes footnote 13 of counselment

[00:58:06] Speaker 05:
when it says that the type of collateral attacks that the court says are proper are those that are necessarily incident to relief otherwise within the court's power to grant.

[00:58:25] Speaker 05:
So you can get your declaration that a judgment is void, but it has to be part of some other cause of action that the court necessarily has the power to grant relief.

[00:58:42] Speaker 05:
Well, the declaration... Do you agree that that is the way we should be thinking about

[00:58:50] Speaker 05:
are the jurisdiction of the district court?

[00:58:53] Speaker 01:
I actually don't.

[00:58:55] Speaker 01:
I actually don't.

[00:58:56] Speaker 01:
I think that this court's repeated entertainment of cases seeking collateral review in non-custodial settings are the law of the circuit.

[00:59:12] Speaker 01:
and that these cases can properly proceed.

[00:59:17] Speaker 01:
And this court's repeated cases getting to the merits speak to that.

[00:59:24] Speaker 01:
It's interesting, if you read the court's precedent, somehow the court always winds up talking, ultimately connecting with the merits of the case, as I think it should do in this case.

[00:59:34] Speaker 05:
What about the fact that Councilman favorably cites

[00:59:39] Speaker 05:
these two first circuit cases, Ash and Davies.

[00:59:46] Speaker 05:
Ian Davies takes a completely different view of subject matter jurisdiction than our circuit and says that it does.

[00:59:57] Speaker 05:
Shouldn't we consider that to be significant?

[01:00:05] Speaker 01:
No, and here's why.

[01:00:07] Speaker 01:
This court has repeatedly had cases in which questions of jurisdiction have come up.

[01:00:14] Speaker 01:
And these are post-Counselman cases, obviously.

[01:00:19] Speaker 01:
And it's never read that footnote to be part of the Supreme Court's holding in the case.

[01:00:25] Speaker 01:
A random citation.

[01:00:27] Speaker 05:
And by the way, in Councilman, it also cites the restatement

[01:00:32] Speaker 05:
the then current 1942 version of the statement of judgments, which I printed out and read, and it seems to be consistent with the government's argument.

[01:00:46] Speaker 01:
Well, the full Court of Appeals would have to overturn a number of its own prior decisions then in order to reach that.

[01:00:55] Speaker 05:
The government's argument is that, you know, the Supreme Court has said that drive-by jurisdictional rulings aren't precedent that have to be respected.

[01:01:08] Speaker 05:
Right.

[01:01:08] Speaker 05:
And that this specific point

[01:01:12] Speaker 05:
our court has never fully engaged with, whether the collateral review has to be a part of something else that the court has jurisdiction to do, whether it's a mandamus of an official to correct the record or back pay or whatever it is, that that issue has never been squarely joined.

[01:01:38] Speaker 01:
Here's my problem.

[01:01:39] Speaker 01:
The drive by is a wonderful phrase that's lively and it suggests its own conclusion.

[01:01:44] Speaker 01:
But my concern is I have yet to hear from the government what exactly is left.

[01:01:57] Speaker 01:
Do they really want us to take this case over to the claims court?

[01:02:03] Speaker 01:
and sue for back pay?

[01:02:06] Speaker 01:
Do they really want that after all these years?

[01:02:09] Speaker 01:
And are we going to meet the same kind of argument again at the claims court?

[01:02:16] Speaker 01:
We know we can't go to the correction board.

[01:02:17] Speaker 01:
That's pointless.

[01:02:19] Speaker 01:
I have the impression that there's actually no there there.

[01:02:26] Speaker 01:
And what the government's position would be is to turn collateral review for people who are either no longer behind bars or never were behind bars.

[01:02:37] Speaker 01:
into an illusion and I don't think this court should lightly go down that path.

[01:02:44] Speaker 02:
Did you see Supreme Court review?

[01:02:47] Speaker 01:
Did you seek Supreme Court review?

[01:02:48] Speaker 01:
We did not seek Supreme Court review.

[01:02:50] Speaker 01:
And what I can say on that subject is for collateral review, recourse to the Supreme Court is not required.

[01:02:59] Speaker 01:
I'm familiar with the law in habeas because there's a lot of it.

[01:03:03] Speaker 02:
And you don't have to go to the Supreme Court in order to... I'm not suggesting that there's an exhaustion requirement.

[01:03:08] Speaker 02:
I was just wondering whether in terms of what you could have done, their direct review would include

[01:03:14] Speaker 02:
a certain petition?

[01:03:15] Speaker 01:
Well, Chief Judge, that's, yes, it's a not unfair question.

[01:03:22] Speaker 01:
I have to say, though, that the way the case, the posture of the case, leaving, you know, when the military justice, when the military appellate courts had finally gotten done with it, was so encrusted procedurally that there was absolutely no way the, it would have been a futile, not only futile, but

[01:03:42] Speaker 01:
virtually frivolous to try to shoehorn it into the Supreme Court's docket.

[01:03:49] Speaker 01:
There are cases that are good vehicles, there are cases that are terrible vehicles, and this would not have been a good vehicle.

[01:03:57] Speaker 01:
But I do, may I make a few other

[01:04:01] Speaker 01:
Comments?

[01:04:04] Speaker 02:
On what?

[01:04:06] Speaker 01:
On what I started to say, which was what I think is the problem in the case.

[01:04:14] Speaker 01:
What I think is the problem in the case.

[01:04:16] Speaker 01:
I'll briefly, by the way, just sharp shoot one point.

[01:04:21] Speaker 01:
That is the sovereign immunity question.

[01:04:24] Speaker 01:
And I'll just refer the court to Trudeau against the Federal Trade Commission, which says, look, there's no sovereign immunity problem.

[01:04:34] Speaker 01:
We didn't ask for money.

[01:04:36] Speaker 01:
This is for declaratory and injunctive relief.

[01:04:39] Speaker 01:
As I understand the jurisprudence on sovereign immunity, it's a non-issue, therefore.

[01:04:44] Speaker 01:
I'll leave it at that.

[01:04:45] Speaker 05:
For now, we relied on APA 702 and APA 701 defines the waiver of sovereign immunity with respect to agencies and officers of agencies, and that is not who is on the backside of the V.

[01:05:07] Speaker 05:
Correct.

[01:05:08] Speaker 05:
In your lawsuit.

[01:05:10] Speaker 01:
Right.

[01:05:10] Speaker 01:
Number one, my understanding is that in cases where the United States is sued as opposed to a particular officer or official, that

[01:05:23] Speaker 01:
That resolves into a question of the relief as opposed to who is the proper party.

[01:05:29] Speaker 01:
That's my understanding of the case law.

[01:05:31] Speaker 01:
The additional point is if you look at the footnote that I'm sure you're focusing on, the footnote says, look, this is not confined to APA cases.

[01:05:43] Speaker 05:
I understand it's not confined to APA cases, and we've held that repeatedly, but it is confined to parties.

[01:05:53] Speaker 01:
I believe the case law, and I will be happy to file something on this if you would like, Your Honor, but I believe the case law is that the focusing on the party goes to whom an order would be issued as opposed to who is in the caption.

[01:06:13] Speaker 05:
It's also, you know, even if that's the case,

[01:06:19] Speaker 05:
If the party that the order would go against is not someone who falls within section 701, then how do you get a waiver of sovereign immunity?

[01:06:34] Speaker 01:
It's because we're not asking for money damages at all.

[01:06:41] Speaker 04:
Does the Secretary of Defense have authority to modify a CAF judgment?

[01:06:49] Speaker 04:
But no, you're right.

[01:06:50] Speaker 04:
I would think not.

[01:06:51] Speaker 04:
No.

[01:06:52] Speaker 04:
So how can this?

[01:06:54] Speaker 04:
How can this work?

[01:06:56] Speaker 01:
The order has to run against the CAF and the courts underneath it.

[01:07:03] Speaker 01:
I actually think not with all respect, Your Honor.

[01:07:05] Speaker 01:
How is it redressable?

[01:07:06] Speaker 04:
You can amend the complaint to sue the Secretary of Defense, and then you're just trading a sovereign immunity problem for a redressability problem, because the Secretary of Defense can't undo the CAF judgment.

[01:07:21] Speaker 01:
However, Your Honor, if you look at the

[01:07:24] Speaker 01:
What I'll say is the core of our complaint, which is the first item in the prayer, a declaratory judgment, is a declaration to the world.

[01:07:33] Speaker 01:
It's not a declaration to the Secretary of Defense or whatever his title is this week.

[01:07:42] Speaker 01:
with, if I may, I would like to.

[01:07:45] Speaker 02:
Well, you're going to have three minutes for rebuttal and to address anything in the Crossifield for rebuttal purposes.

[01:07:54] Speaker 02:
I just want to make sure my.

[01:07:55] Speaker 01:
Well, I want to, but what I wanted to say, Your Honor, it's not in the nature of rebuttal to something that counsel might say on his rebuttal, but it's in the nature of

[01:08:04] Speaker 01:
my affirmative case.

[01:08:06] Speaker 01:
So you could take very briefly, take a minute to do that.

[01:08:11] Speaker 01:
You're very kind.

[01:08:13] Speaker 01:
What I would like to do is invite the court's attention to Judge Walton's opinion on reconsideration in which, and this gets to Judge Katsas' point is, what is the standard of review here?

[01:08:29] Speaker 01:
And if you look at the

[01:08:36] Speaker 01:
We briefed this in some detail.

[01:08:40] Speaker 01:
The test that the court has most recently stated is there should be a close look.

[01:08:47] Speaker 01:
What's the difference between a shrug, closed look, hard look?

[01:08:52] Speaker 01:
It can be phrased a number of ways.

[01:08:54] Speaker 01:
But here's the concern.

[01:08:55] Speaker 04:
If you look at what Judge Walton- One can extract from the Kaufman case going all the way back to the 60s a suggestion of de novo review on non-custodial collateral review.

[01:09:13] Speaker 04:
That seems an awful lot.

[01:09:17] Speaker 01:
Well, don't be so fast on that, Judge Katz.

[01:09:24] Speaker 01:
Here's why.

[01:09:24] Speaker 01:
We wouldn't do that in ordinary habeas.

[01:09:28] Speaker 01:
Well, except, and this is Burns v. Wilson, except if the military courts have not addressed an issue.

[01:09:36] Speaker 01:
Where they've not addressed an issue, Burns v. Wilson says, then it's subject to de novo review.

[01:09:43] Speaker 01:
And that's what we're dealing with.

[01:09:45] Speaker 01:
What issue was not addressed?

[01:09:46] Speaker 01:
The military courts never addressed Colonel Nance's problem with the immigration judge.

[01:09:51] Speaker 04:
Even if the military courts apply something like a procedural default rule, which state courts do all the time to

[01:10:04] Speaker 01:
frustrating habeas.

[01:10:05] Speaker 01:
Well, you'd have to unpack that, including judicial review, including, may I say, a serious recusal issue that infected the military court's consideration on that specific point.

[01:10:18] Speaker 01:
And the district court thought, well, it didn't make any difference because one of the judges happened to be married to a person who worked in the criminal law division that's responsible for high profile cases, of which this is one of the highest.

[01:10:33] Speaker 01:
With all respect to Judge Walton, that was incorrect.

[01:10:36] Speaker 01:
I think factually it was incorrect because Colonel Walker's husband was not simply one of 10 lawyers in the Criminal Law Division.

[01:10:46] Speaker 01:
He was the head of the Criminal Law Division, which we think disqualified Colonel Walker and therefore removes any ground for reliance on the Army Court of Criminal Appeals decision

[01:11:03] Speaker 01:
on the Corum Nobis, which is the only time they confronted the issue of Judge Colonel Nance's job and his frugality with information.

[01:11:22] Speaker 02:
Okay.

[01:11:22] Speaker 02:
Let me make sure my colleagues don't have additional questions for you at this time.

[01:11:24] Speaker 02:
We'll give you a little time for rebuttal.

[01:11:26] Speaker 02:
Thank you very much, Ross.

[01:11:35] Speaker 02:
Mr. Hinchelwood, I'll give you three minutes.

[01:11:38] Speaker 03:
Sure.

[01:11:39] Speaker 03:
Your Honor, just very briefly, with respect to the primary basis of our appeal, I did not hear my colleague offer really any basis on which you could affirm this particular judgment.

[01:11:52] Speaker 03:
Or do I think there's any real distinction that can be drawn between the request for relief here and what he in fact got, which was a vacator of all the decisions.

[01:12:00] Speaker 03:
So whatever else you might think about other avenues for collateral review, this plainly was not and could not be that.

[01:12:06] Speaker 03:
With respect to the apparent unlawful command influence claim, which I think forms the basis of the cross appeal, just a couple of quick points.

[01:12:13] Speaker 03:
One being that that would equally be unavailable for review on the jurisdictional theory we've advanced.

[01:12:21] Speaker 03:
And in addition, apparent unlawful command influence, like an appearance of partiality under the federal rules or under rule for court martial 902A, is a statutory prophylactic doctrine, not itself a due process problem.

[01:12:33] Speaker 03:
that's distinct from potential actual unlawful command influence, which Bergdahl never raised before the military courts.

[01:12:39] Speaker 05:
The Supreme Court said that they don't have to find actual bias to find the due process violation, that it can be an appearance.

[01:12:52] Speaker 03:
Well, the Supreme Court in Caperton distinguished, made clear that it's an objective inquiry for the sort of due process problem, and that that is nevertheless distinct from an appearance problem.

[01:13:04] Speaker 03:
That appearance rules are themselves more prophylactic.

[01:13:07] Speaker 03:
That is the very nature of those rules.

[01:13:09] Speaker 03:
Remember, appearance recusals didn't exist under federal law until 1974.

[01:13:13] Speaker 03:
So I mean, there was a long period, almost 200 years, where federal courts had no such rules with respect to judges.

[01:13:20] Speaker 03:
But it is certainly an objective inquiry, but it's not one that's overlapping with or the same as the appearance inquiry.

[01:13:27] Speaker 03:
That's a central focus of Caperton itself.

[01:13:30] Speaker 03:
And with respect to unlawful command influence, I mean, apparent unlawful command influence, which is the only basis

[01:13:36] Speaker 03:
that Bergdahl presented to the military courts and has pursued here is itself another sort of prophylactic doctrine that is not constitutional in nature.

[01:13:47] Speaker 03:
And in fact, as we pointed out, it may be that Congress has abolished that doctrine, the CAF hasn't.

[01:13:53] Speaker 03:
settled that question yet, to my knowledge, but certainly military appellate courts have understood recent amendments by Congress to abolish that doctrine altogether.

[01:14:02] Speaker 03:
So even again, assuming that there was some jurisdictional hook here, the unparent unlawful command influence claim that he presses is not one on which he could obtain collateral relief in any event.

[01:14:14] Speaker 03:
If there are no further questions, I would simply rest on our briefs.

[01:14:18] Speaker 02:
Thank you, counsel.

[01:14:19] Speaker 02:
Thank you.

[01:14:21] Speaker 02:
Mr. Fidel will also give you three minutes.

[01:14:23] Speaker 02:
I'll ask you to keep it to three minutes, but feel free to discuss what you'd like.

[01:14:26] Speaker 02:
Thank you.

[01:14:28] Speaker 01:
First, with regard to the government's claim that we never raised the apparent UCI issue in the military courts, we obviously raised it repeatedly.

[01:14:44] Speaker 01:
The government said that we

[01:14:50] Speaker 01:
We did not request dismissal with prejudice.

[01:14:55] Speaker 01:
At the time, President Trump, as he was in his first term, spoke in the

[01:15:09] Speaker 01:
Rose Garden at a news conference and said that everybody knows what I believe.

[01:15:17] Speaker 01:
We actually objected time and time again, and importantly,

[01:15:23] Speaker 01:
Although we didn't request this missile with prejudice in the motion that followed the Rose Garden incident, we presented the case to the Court of Appeals for the Armed Forces from the beginning as the entire cluster

[01:15:39] Speaker 01:
of apparent unlawful command influence, including President Trump's subsequent description of the sentence in this case as a complete and total disgrace to our nation and our armed forces, and the late Senator McCain's meddling in the administration of justice way up front.

[01:15:57] Speaker 01:
That's point one.

[01:15:58] Speaker 01:
Point two is I would like to say that if it turns out

[01:16:03] Speaker 01:
that this court concludes that it cannot do anything to remedy the problem raised by Colonel Nance's behavior.

[01:16:16] Speaker 01:
That would mean that

[01:16:21] Speaker 01:
unlawful belligerence tried before the military commissions get better protection in terms of judicial independence and judicial disclosure than American GIs.

[01:16:34] Speaker 01:
And I must say that is a perverse outcome.

[01:16:38] Speaker 01:
Finally, I'd like to point to, again, Judge Walton's

[01:16:45] Speaker 01:
opinion on reconsideration.

[01:16:50] Speaker 01:
He makes a number of points, one of which is you're getting all the relief you're entitled to

[01:17:00] Speaker 01:
I don't have to rule on your UCI complaint because you're getting all the relief you're entitled to on the Nishiri front.

[01:17:11] Speaker 01:
The answer is relief for UCI includes dismissal with or without prejudice among other remedies.

[01:17:22] Speaker 01:
quite startled by what counsel said just now that maybe Congress has repealed the apparent UCI doctrine.

[01:17:30] Speaker 01:
That is directly contrary to the legislative history.

[01:17:33] Speaker 01:
I'm proud to say it.

[01:17:34] Speaker 01:
I believe in legislative history.

[01:17:36] Speaker 01:
Sue me.

[01:17:37] Speaker 01:
But I believe in it, and the record is perfectly clear that Congress rejected an attempt by the administration to zero out, in so many words, the apparent UCI doctrine that Kaft has created and nourished over the years.

[01:17:51] Speaker 01:
So I think that's a point that really has to be hammered.

[01:17:55] Speaker 01:
Additionally, and I'm... Can I ask you to bring it to a close?

[01:17:58] Speaker 01:
I hereby do that.

[01:18:00] Speaker 01:
The factors cited by Judge Walton for

[01:18:05] Speaker 01:
declining to interfere with the CAF decision.

[01:18:11] Speaker 01:
Don't wash.

[01:18:11] Speaker 01:
They have nothing to do with UCI, whether the government proved its case beyond a reasonable doubt, which was its burden under CAF law or not.

[01:18:20] Speaker 01:
Thank you very much for your patience, Your Honor.

[01:18:22] Speaker 02:
Thank you, counsel.

[01:18:23] Speaker 02:
Thank you to both counsel.

[01:18:24] Speaker 02:
We'll take this case under submission.