[00:00:49] Speaker 02: Okay, the next target case is number 16-15-12, Kennedy against the United States. [00:00:56] Speaker 02: Whenever you're ready, Mr. Kennedy. [00:01:10] Speaker 01: Good morning, Your Honors. [00:01:11] Speaker 01: May it please the Court. [00:01:13] Speaker 01: My name is Jason Kennedy and I am the plaintiff appellant in this case. [00:01:17] Speaker 01: I respectfully ask for the Federal Circuit to hold that once awarded a midshipman's entitlement to his ROTC scholarship endures until it is lawfully terminated pursuant to statute or regulation. [00:01:32] Speaker 01: In this case, since the plaintiff was never regularly disenrolled nor his scholarship otherwise terminated, this Court should reverse the Court of Federal Claims and direct judgment for the plaintiff awarding the scholarship [00:01:46] Speaker 01: the subsistence allowance, and the cost of litigation. [00:01:50] Speaker 01: I'd like to make three points before the court today. [00:01:53] Speaker 01: First, once a scholarship is awarded, a midshipman's status in the NRTC program is determined through a singular administrative process, which begins before the performance review board and culminates in the secretary's executive decision. [00:02:10] Speaker 01: And that process includes consideration of re-enrollment in Officer Canada School, [00:02:17] Speaker 01: possibly transferring to the Navy option, and any potential financial penalties which the Secretary wishes to impose. [00:02:26] Speaker 03: Let's assume that we were to agree with you, that you had a right to appear before the PRB, that you were denied the, effectively denied the right to appear before the PRB, and that the, was a possibility that the [00:02:46] Speaker 03: the secretary of the Navy advised by the PRB would let you, let's say, re-enroll. [00:02:53] Speaker 03: But suppose there were a determination that the PRB would not have changed its mind if you appeared before it. [00:03:01] Speaker 03: Then why isn't the failure to effectively allow you to appear before the PRB harmless error? [00:03:10] Speaker 01: Allow me to ask a point of clarification to your honor's question. [00:03:14] Speaker 01: Whom would make the determination that the PRB's recommendation would not have been different? [00:03:20] Speaker 03: Well, what I'm hypothesizing is that the, let's say there were a remand here, there would be a determination that that would be the case. [00:03:33] Speaker 03: If there were such a determination that the result would not have been different, then why should you be able to collect anything? [00:03:42] Speaker 01: The answer lies in the legal doctrine governing when harmless error is applicable to military personnel decisions. [00:03:52] Speaker 01: This court should hold that when the military is making a subjective assessment, a subjective assessment of one individual's capacity for military service, the integrity of that assessment is necessarily defined by the process through which the assessment is rendered. [00:04:10] Speaker 01: When the process is fundamentally flawed in a way that undermines the structural fairness of the assessment itself, the integrity of the assessment is destroyed. [00:04:21] Speaker 01: Because the judiciary would be incapable of replicating that merits-based assessment, whether a service member is fit for military service, the harmless error inquiry becomes non-justiciable. [00:04:37] Speaker 01: And the inability of the government to meet their burden on their defense does not defeat the plaintiff's claim. [00:04:44] Speaker 05: Mr. Kennedy, let me get down to the nitty gritty, if I can, a little bit here. [00:04:49] Speaker 05: As you can tell from our request from additional briefing, we're concerned about the question of whether or not you would have an opportunity to return to OCS. [00:04:58] Speaker 05: As I read the rules and regulations at least, if you were barred from returning to OCS permanently and finally by the secretary, then you would be unable to show that you could succeed with your NROTC program and you would be disenrolled. [00:05:20] Speaker 05: That's the way I look at it. [00:05:22] Speaker 05: So that's why we were looking at the question of a return to OCS. [00:05:26] Speaker 05: You hang your hat on, and the question was who has the authority, the final authority, to decide who gets to attend OCS. [00:05:35] Speaker 05: You hang your hat on the Secretary SAV CNAT ENST 153312G Section 305A, right? [00:05:46] Speaker 01: 315A. [00:05:46] Speaker 05: Pardon me, 315A, where it says SEC-NAV makes the final decision. [00:05:51] Speaker 05: The government responded by saying, oh, no, no, that section doesn't apply to you because that section [00:05:56] Speaker 05: only applies to students that are obligated to active service, right? [00:06:01] Speaker 05: You didn't object to that interpretation in your supplemental reply brief. [00:06:10] Speaker 05: I want to have some factual assertion. [00:06:12] Speaker 05: The secretary seemed to think that you had incurred an obligation to active service. [00:06:18] Speaker 00: Yes, Your Honor. [00:06:19] Speaker 05: And so is your view that you were obligated to active service and therefore you fall within 315A, correct? [00:06:25] Speaker 00: Absolutely, Your Honor, yes. [00:06:27] Speaker 05: So when the government says, oh, no, it doesn't apply because it only applies to people that are obligated, they're making a nonsensical argument. [00:06:36] Speaker 01: A factually erroneous argument, Your Honor, yes. [00:06:39] Speaker 01: And I'm sorry, I had not interpreted the Department of Justice's brief to assert that 315A was inapplicable for non-obligated status. [00:06:48] Speaker 01: In this case, when the plaintiff was awarded his three-year ROTC scholarship contract, he entered into an obligated status. [00:06:57] Speaker 01: The statutes and regulations have a few different procedures. [00:07:00] Speaker 05: Well, does it work, though, that you were obligated into service, and if you ended up not succeeding at OCS, they could send you into the regular down to Parris Island as a Marine Corps private, right? [00:07:15] Speaker 05: Correct, Your Honor, yes. [00:07:16] Speaker 05: And that was your obligation to service. [00:07:18] Speaker 01: Correct, Your Honor, yes, and accept a commission if offered. [00:07:21] Speaker 05: And then I believe, isn't it true that if you agreed to pay back the tuition that had been paid, then you no longer were obligated to the service? [00:07:30] Speaker 00: Potentially, yes, Your Honor. [00:07:31] Speaker 05: And that's how that system works. [00:07:33] Speaker 05: I mean, you didn't go to Parris Island. [00:07:35] Speaker 01: Under the statutory scheme in Section 2005, as codified prior to 2006, the Secretary had the option to order a midshipman [00:07:47] Speaker 01: to active duty enlisted status, and indeed required enlistment in the reserves as a condition of receiving the scholarship on the front end, or had the option of ordering reimbursement of the scholarship. [00:08:00] Speaker 01: Those are the two alternatives available to the secretary. [00:08:04] Speaker 01: In the context of the reimbursement provisions, the scholarship is forfeited. [00:08:09] Speaker 01: In the context of being ordered to active duty. [00:08:11] Speaker 02: But in your case, reimbursement was eventually waived, was it not? [00:08:15] Speaker 01: Yes, Your Honor, by the secretary acting through the Board for Correction of Naval Records. [00:08:20] Speaker 01: But if the secretary chooses the second option of ordering active duty enlisted service, the midshipman is entitled to keep his scholarship. [00:08:28] Speaker 01: There's no diminution of the awarded scholarship by ordering active duty status. [00:08:33] Speaker 01: And in the factual context of this case here, your question, Judge Clevenger, the final determination of whether or not the plaintiff as an obligated midshipman [00:08:45] Speaker 01: was to be made by the secretary of the Navy because his review was requisite to changing the plaintiff's status in the NRTC financial assistance program. [00:08:56] Speaker 01: That review by the secretary is not limited by his subordinate's recommendations. [00:09:04] Speaker 01: And that's the point that I made in my letter to the court. [00:09:07] Speaker 05: What I was trying to get at is to say, well, in these circumstances, [00:09:11] Speaker 05: If you want to make the showing that had you attended the PRB, you would have stated your case for being able to go back to OCS and have another trial. [00:09:24] Speaker 05: Yes, Your Honor, or to transfer to the Navy. [00:09:26] Speaker 05: That's right. [00:09:28] Speaker 05: And because it's your view that the ultimate decision as to your disenrollment connected to that lies with the Secretary of the Navy, not with somebody out the commanding officer at Quantico. [00:09:39] Speaker 01: Yes. [00:09:40] Speaker 05: So that's why we asked for this briefing. [00:09:43] Speaker 05: And you are relying on the 315A for the secretary making the final decision. [00:09:49] Speaker 05: We'll hear from the government later on. [00:09:51] Speaker 05: What Judge Dyke, I believe, was asking was, well, let's assume that we send this case back. [00:09:57] Speaker 05: We say that the notion that you could not possibly have achieved any greater relief at the PRB was wrong. [00:10:05] Speaker 05: You might have. [00:10:06] Speaker 05: Then when it goes back, [00:10:08] Speaker 05: can there be a harmless air inquiry? [00:10:12] Speaker 05: That is to say a hearing where the government would say, well, I know we're about ready to go back to the PRB, but it is unnecessary because perchance the secretary has never overruled the commandant at Quantico or for whatever reason. [00:10:28] Speaker 05: I think that was the thrust of his argument. [00:10:31] Speaker 05: Let's assume that you went back to the PRB, right, and the PRB [00:10:37] Speaker 05: heard your case, but said, no, thank you. [00:10:40] Speaker 05: We are not going to recommend you go back to Quantico. [00:10:45] Speaker 05: Do you have relief after that? [00:10:46] Speaker 05: Can you go up the chain of command and seek to get access to the secretary to reverse the recommendation of the PRB? [00:10:54] Speaker 01: I don't believe there's any current mechanism that would provide for such a secondary post hoc review in this case. [00:11:03] Speaker 01: Just as in Wagner v. US, [00:11:06] Speaker 01: There is no body that can make an authoritative decision as to what would have been because the secretary had unbridled discretion, the words used in Wagner, unbridled discretion as to how he would have addressed the plaintiff's status on the first hand. [00:11:24] Speaker 01: In Wagner, not even the secretary himself was able to make a determination [00:11:29] Speaker 01: post hoc to try and remedy the original violation. [00:11:32] Speaker 05: That doesn't help you because the secretary could have used the unbridled discretion to rule against you. [00:11:36] Speaker 05: We don't know how he would have ruled. [00:11:38] Speaker 01: As the court did not know in Wagner as well, yes, Your Honor. [00:11:41] Speaker 05: So I don't know that you know the answer to that. [00:11:43] Speaker 05: But I mean, in this setting, frequently after the fact PRBs or after the fact promotion boards are established all the time to re-review a record that was found to have procedural error. [00:11:58] Speaker 05: But what I was trying to get at is if it goes back to a do-over at the PRB, assuming that you get past a harmless error inquiry, you would argue, I think. [00:12:12] Speaker 05: For example, if the PRB ruled in your favor and said, we would recommend you go back to OCS, you know that the military is going to take that up the chain of command, correct? [00:12:24] Speaker 00: I would assume so, Your Honor. [00:12:25] Speaker 05: So my only question is whether or not the cadet has any right to push up the chain of command from an adverse decision at the PRB. [00:12:35] Speaker 01: Yes, Your Honor. [00:12:36] Speaker 01: The regulations penned by the Department of the Navy require the Navy itself to push it up the chain of command to the secretary for his ultimate decision. [00:12:46] Speaker 01: And it is only his decision that can affect the plaintiff's status in the scholarship program. [00:12:52] Speaker 01: I'd like to make an observation as a matter of law in response to this line of query. [00:12:58] Speaker 01: There is a difference between the plaintiff's ability to prove the sufficient nexus between the procedural error and the adverse action taken against him. [00:13:08] Speaker 01: And that's different from the government's ability to prove harmless error to defeat a promificent case that has already been established. [00:13:18] Speaker 01: In the former context, [00:13:22] Speaker 01: It is incumbent upon the plaintiff to show in some sense that the result might have been different, that there was some form of prejudice. [00:13:31] Speaker 01: And in this case, that prejudice was found by the Board for Correction of Naval Records. [00:13:37] Speaker 01: A different inquiry applies in the context of harmless error as we are in this case. [00:13:42] Speaker 01: It becomes the United States' burden to prove harmless error. [00:13:47] Speaker 01: And the test is fundamentally different. [00:13:50] Speaker 01: Under Texas v. Lassange, the harmless error inquiry requires that the government prove what would have been. [00:14:00] Speaker 01: In the prima facie case, the plaintiff is only required to show that there is a sufficient nexus or relationship between the procedural error and the adverse personnel action, as it was found in this case by the board for correction of naval records. [00:14:16] Speaker 01: I'd like to make another observation regarding the BCNR's determinations in this case. [00:14:22] Speaker 01: It refused to award relief to the plaintiff upon its determination that the facts in the case indicate that disenrollment was authorized, was permitted under the regulations. [00:14:36] Speaker 01: That finding by the Board for Correction of Naval Records does not address the inquiry as to either the nexus [00:14:44] Speaker 01: nor as to harmless error, as this court recognized in Lindsay v. US. [00:14:50] Speaker 01: There, this court said that a determination that adverse personnel action is permissive does not constitute a judgment regarding fitness or retention in the military service. [00:15:07] Speaker 01: So there has been no such determination. [00:15:09] Speaker 01: And under the regulatory scheme as it exists, [00:15:12] Speaker 01: There's no mechanism for making that determination now. [00:15:15] Speaker 01: The special selection boards that this court considered in Porter v. US does not apply to midshipmen. [00:15:23] Speaker 01: It applies to officers, whether an officer should be promoted. [00:15:27] Speaker 01: So the secretary cannot send this case back to a special selection board to decide whether the plaintiff would have been promoted. [00:15:34] Speaker 01: And indeed, promotion is not the relevant inquiries. [00:15:38] Speaker 03: Tell, I'm not sure that I'm following that. [00:15:40] Speaker 03: Why is it that we couldn't send it back to the Court of Federal Claims to order the convening of a PRB and go through the process again? [00:15:50] Speaker 01: Because the PRB process is a unique process to deliberate them in shipment at that point in time. [00:15:57] Speaker 01: These are the officers who are closest to [00:16:01] Speaker 01: the plaintiff's performance in the NROTC program. [00:16:04] Speaker 01: They were the ones who evaluated his status. [00:16:06] Speaker 01: They're no longer at the NROTC unit. [00:16:10] Speaker 01: The regulations require the plaintiff's ability to appear before the PRB to be heard. [00:16:17] Speaker 03: So that can't be recreated. [00:16:19] Speaker 01: That cannot be recreated, Your Honor, no. [00:16:21] Speaker 01: And I see that my time has expired. [00:16:23] Speaker 02: It has. [00:16:24] Speaker 02: We'll see you some rebuttal time. [00:16:25] Speaker 02: And let's hear from the government. [00:16:26] Speaker 01: Thank you, Your Honor. [00:16:27] Speaker 01: I appreciate it. [00:16:35] Speaker 04: Good morning, Your Honors. [00:16:41] Speaker 05: Do you have an immediate response to that problem of whether or not a PRB could be convened on remand? [00:16:49] Speaker 04: I think our answer is a little more complicated with that, but directly can this, and this is something the Board could look at below, Your Honor. [00:16:56] Speaker 04: The Board for Correction of Military Records for the Navy, excuse me, the BCNR. [00:17:01] Speaker 04: board for correction of naval records? [00:17:02] Speaker 05: The case is not in front of the BCN. [00:17:04] Speaker 05: The case is right in front of the Court of Federal Claims now. [00:17:06] Speaker 05: And our question, the Court of Federal Claims ruled that what I will say is the failure of Mr. Kennedy to be able to have attended his PRB was a due process error, but was harmless because the PRB could not have given him any more relief than he got. [00:17:28] Speaker 05: That's what the Court of Federal Claims said. [00:17:30] Speaker 05: That's correct. [00:17:31] Speaker 05: So we have in front of us a harmless due process violation for purposes of argument. [00:17:40] Speaker 04: We have conceded there's a due process violation here, Your Honor, because this was before the board. [00:17:44] Speaker 05: What is the remedy? [00:17:45] Speaker 05: The remedy in a promotion case would be to create a promotion board and go back and send it through again, right? [00:17:51] Speaker 04: The remedy is exactly what the court of federal claims did when we sought a voluntary remand in this case, would be to send it back to the board. [00:17:59] Speaker 04: Excuse me. [00:18:00] Speaker 04: It wasn't sending it back. [00:18:01] Speaker 04: I'm saying that wrong. [00:18:02] Speaker 04: What the court did on our motion was send it to the board for the first time. [00:18:05] Speaker 05: It's been there and in front of the BCNR, Mr. Kennedy argued that he should not have been barred from going back to OCS. [00:18:14] Speaker 05: He made his complete range of arguments that he made to the court of federal claims he made to the DCNR. [00:18:19] Speaker 04: I completely disagree with that, Your Honor. [00:18:21] Speaker 04: He did not make all the same claims at the board that he did at the court of federal claims. [00:18:25] Speaker 04: There was wrongful withholding claims that were brought up for the first time. [00:18:29] Speaker 05: At the court if I don't say what are you suggesting that the proper relief would be for? [00:18:35] Speaker 05: Assuming that we felt that the harmless error decision by the court of defense was wrong Yes, right, then we should send it back to them with orders to them to send it back to the BCNR That is correct. [00:18:47] Speaker 04: Your honor. [00:18:47] Speaker 04: It is to do what to correct mr. Records to evaluate whether mr Well, first off your honor, let me back up and take a step here [00:18:56] Speaker 04: This determination has already been made by this BCNR on pages 38 and 40 of the Administrative Record. [00:19:03] Speaker 04: Mr. Kennedy's briefing only focuses on page 39, on the page where the court found it. [00:19:09] Speaker 05: Before we get there, can I just ask one point? [00:19:12] Speaker 05: This is Mr. Kennedy, in terms of who has the final authority to invite you out to OCS. [00:19:18] Speaker 05: Sure. [00:19:19] Speaker 05: And you say, well, it's the commanding officer at OCS. [00:19:22] Speaker 05: And he says, no, the secretary of the Navy has the final decision. [00:19:26] Speaker 04: Uh, yes, your honor. [00:19:27] Speaker 05: And he cites 315A? [00:19:29] Speaker 04: Right, your honor. [00:19:30] Speaker 05: And you respond saying 315A doesn't apply to him? [00:19:34] Speaker 04: Um, that is actually, that was our second comment, your honor. [00:19:38] Speaker 05: I'm looking, I'm looking at page seven of your reply, your second brief. [00:19:43] Speaker 04: Yes, your honor. [00:19:43] Speaker 04: And I'll quote directly from page seven. [00:19:45] Speaker 04: The only regulation that Mr. Kennedy identifies, CNET Institute. [00:19:48] Speaker 05: Just don't go so fast. [00:19:50] Speaker 04: Oh, sorry, your honor. [00:19:50] Speaker 05: You said that it didn't apply because it only applies to people that are obligated to active service? [00:19:56] Speaker 05: 315A? [00:19:56] Speaker 04: I say that on page 8. [00:20:00] Speaker 05: Yeah. [00:20:01] Speaker 05: That was your reason why 315A? [00:20:03] Speaker 04: No, Your Honor. [00:20:03] Speaker 04: Well, it was our secondary reason. [00:20:05] Speaker 04: Our first reason on page 7 is this- Is your secondary reason incorrect? [00:20:09] Speaker 05: Well, we read that- Has he obligated his acting service yes or no? [00:20:15] Speaker 05: So, Your Honor- Are you familiar with the secretary's action in this case, page 11A, 1162, in the record? [00:20:23] Speaker 05: Mr. Kennedy has incurred an obligation for active enlisted service. [00:20:29] Speaker 04: Well, yes, based upon that, it would appear that our sentence is wrong in our briefing, Your Honor. [00:20:32] Speaker 04: That's correct. [00:20:33] Speaker 05: 100% wrong. [00:20:34] Speaker 04: That sentence is wrong. [00:20:36] Speaker 04: And you knew that. [00:20:37] Speaker 04: No. [00:20:37] Speaker 05: You were unaware of 1162 when you filed your reply. [00:20:40] Speaker 04: I apologize, Your Honor. [00:20:41] Speaker 05: Did you mislead us on purpose? [00:20:43] Speaker 04: I'm sorry, Your Honor. [00:20:44] Speaker 05: Did you mislead us on purpose? [00:20:46] Speaker 04: Of course not, Your Honor. [00:20:48] Speaker 05: Do you agree that 315A gives the Secretary an able final decision here? [00:20:55] Speaker 05: Yes or no? [00:20:56] Speaker 05: No. [00:20:57] Speaker 04: Why not? [00:20:59] Speaker 04: Because if the question is whether or not, the question we were asked, and I certainly will admit that that sentence, as you have shown me right now, is wrong, I was unaware of it, Your Honor, as we only had a couple days to write this document while also preparing for this argument. [00:21:13] Speaker 05: Are you the one that signed? [00:21:14] Speaker 05: I'm sorry? [00:21:15] Speaker 05: Did you sign this piece of paper that was sent to us? [00:21:18] Speaker 04: Yes, Your Honor. [00:21:22] Speaker 04: I apologize, Your Honor, but truly based upon the fact that Mr. Kennedy, they had already recommended him. [00:21:28] Speaker 05: We can appreciate this is all very technical stuff. [00:21:31] Speaker 05: Right. [00:21:31] Speaker 05: Mr. Kennedy has a due process violation that you have conceded. [00:21:38] Speaker 05: The question is, what do we do about it? [00:21:39] Speaker 04: Right, Your Honor. [00:21:40] Speaker 05: And he's arguing that he thinks that if he went back to the PRB, if there was such a thing, [00:21:45] Speaker 05: And he pitched his case, he could convince them, or up to chain of command, he could convince right up to the secretary that he should have been given an opportunity to go back to OCS. [00:21:54] Speaker 04: That is correct. [00:21:55] Speaker 05: And do you now tell me that he could not do that? [00:21:59] Speaker 04: The secretary of the Navy has in [00:22:02] Speaker 04: I want to be very clear about our harmless argument here. [00:22:04] Speaker 05: I want to be very clear about your delegation argument to the CEO at Quantico. [00:22:09] Speaker 04: But I want to start from the beginning here. [00:22:10] Speaker 05: And the secretary overruled the CEO at Quantico on admission to Quantico, yes or no? [00:22:16] Speaker 04: Well, I would imagine that the Koreans would yes. [00:22:18] Speaker 04: Yes or no. [00:22:19] Speaker 05: Yes, he can. [00:22:19] Speaker 05: So Mr. Kennedy's argument has merit that if he went back to the PRB and was able to convince them that he should go back to OCS and they sent it up the chain of command, [00:22:32] Speaker 05: then his disenrollment would have been incorrect. [00:22:34] Speaker 04: Yes. [00:22:35] Speaker 04: Good. [00:22:35] Speaker 04: Absolutely. [00:22:37] Speaker 04: But to go back to 315 here, Your Honor. [00:22:39] Speaker 05: Why didn't you say all that? [00:22:40] Speaker 05: Did you realize what our problem was in this case? [00:22:43] Speaker 04: Well, we addressed that in our brief here, Your Honor. [00:22:45] Speaker 04: We believe that the Secretary has discretion of all personnel. [00:22:49] Speaker 05: So let's go back to where we were before. [00:22:50] Speaker 05: We've now established that Mr. Kennedy has made a showing that you do not rebut, that if he had gone to the PRB, [00:22:57] Speaker 05: he might have been able to make his argument and move forward with his request to go back to OCS, and that that decision could have gone all the way up to the secretary for either approval or rejection either way. [00:23:09] Speaker 05: You've agreed to that. [00:23:11] Speaker 05: Yes, sir. [00:23:12] Speaker 05: Absolutely. [00:23:12] Speaker 05: But in our brain... That much agreed than a court federal claims decision that it would have been unnecessary to go to a PRB because nothing more could have been done. [00:23:25] Speaker 05: That decision is incorrect. [00:23:27] Speaker 05: by the Court of Federal Claims, on the record we have. [00:23:30] Speaker 04: Your Honor, we actually argued that the Court of Federal Claims never should have made that decision. [00:23:34] Speaker 04: Well, fine. [00:23:35] Speaker 05: Assume you're fine. [00:23:36] Speaker 05: They made the decision, and that's the decision we are reviewing today. [00:23:40] Speaker 05: So that decision is wrong. [00:23:42] Speaker 05: You've just admitted it. [00:23:43] Speaker 05: What do we do? [00:23:44] Speaker 04: Well, Your Honor, we believe that because the Secretary has delegated this to the Marine Corps, the decision on behalf of the Marine Corps officers regarding Mr. Kennedy, that he is not allowed back, [00:23:55] Speaker 04: is a decision of the secretary. [00:23:58] Speaker 05: Where is final? [00:23:59] Speaker 05: You just admitted to me that the final decision rests with the secretary and that if Mr. Kennedy was successful through the PRB up the chain of command, the secretary would sign a piece of paper saying he should have been able to go back to OCS. [00:24:15] Speaker 05: Boom. [00:24:16] Speaker 05: His disenrollment was incorrect. [00:24:19] Speaker 05: Boom. [00:24:20] Speaker 05: Right. [00:24:20] Speaker 05: That's what would happen, right? [00:24:22] Speaker 04: Right. [00:24:22] Speaker 05: So now you're trying to tell me that somehow the CO at Commandant made a final decision that the secretary couldn't overrule. [00:24:30] Speaker 04: No, he could have overruled it, but he acted on behalf of the secretary when doing this training. [00:24:35] Speaker 04: The secretary doesn't control. [00:24:37] Speaker 05: You haven't really shown me anywhere the delegation down to the CO. [00:24:43] Speaker 03: No, Your Honor. [00:24:44] Speaker 03: It would be to the Marine Corps rehab, yes. [00:24:46] Speaker 03: I don't understand. [00:24:47] Speaker 03: You keep taking contradictory positions. [00:24:50] Speaker 03: I thought you told Judge Clevinger that the secretary and the PRB could overrule the decision not to let him re-enroll. [00:24:59] Speaker 03: But they had that authority and that it was a due process violation for him not to be able to appear before the PRB. [00:25:06] Speaker 03: I thought those things were clear. [00:25:07] Speaker 04: Yes, Your Honor. [00:25:08] Speaker 04: But our position, including in our brief, has been consistent that [00:25:13] Speaker 04: What happened here is that we did recognize a due process violation. [00:25:17] Speaker 04: The United States recognized that, sought settlement. [00:25:20] Speaker 04: That didn't work out, and then sought a voluntary remand. [00:25:24] Speaker 04: Over Mr. Kennedy's objections, the court did remand this matter to the Board for Correction of Naval Records. [00:25:32] Speaker 04: At that point, the Navy reviewed Mr. Kennedy's arguments, including his arguments that his record should be corrected to say that he should be retained in OCS. [00:25:42] Speaker 04: and found on pages 38 and 40, Your Honors, that, to quote, the CEO of the NROTC unit was justified in disenrolling petitioner based on petitioner's failure to complete the required OCS training and the declaration that he was not invited to return. [00:26:05] Speaker 04: Therefore, even though the board recommended a waiver of recruitment of advanced education benefits received by petitioner, [00:26:12] Speaker 04: It does not recommend any monetary relief beyond a waiver of the debt. [00:26:17] Speaker 04: In the following paragraph, the board discusses what Mr. Kennedy's contention that his condition was temporary as opposed to permanent, and finds that it was in the discretion. [00:26:27] Speaker 05: All right. [00:26:27] Speaker 05: But the BCNR said they solved the due process problem, and they said the BRB could have granted him more relief than it gave him. [00:26:39] Speaker 04: Absolutely, Your Honor. [00:26:40] Speaker 04: Page 38. [00:26:41] Speaker 05: What more could they have given? [00:26:43] Speaker 05: The PRB gave him a waiver of his recoupment requirement. [00:26:47] Speaker 04: That's correct. [00:26:48] Speaker 05: So what else could the PRB have given him? [00:26:51] Speaker 04: His senior year of tuition, Your Honor. [00:26:55] Speaker 04: Right. [00:26:56] Speaker 04: So on pages 38 and 40 of the board, we have a harmless error determination finding that [00:27:03] Speaker 04: In this situation, it was not unjustified to remove Mr. Kennedy from the disenrollment despite his due process. [00:27:09] Speaker 05: The PRB gave him that. [00:27:10] Speaker 05: The PRB didn't give him a senior. [00:27:15] Speaker 04: Yeah, the BCNR, yes. [00:27:19] Speaker 03: And just to be clear. [00:27:20] Speaker 03: What do you want us to do now? [00:27:21] Speaker 03: Let's assume we take your concession there was a due process violation. [00:27:25] Speaker 03: We take your concession that if he'd been in front of the PRB, he could have argued for re-enrollment. [00:27:30] Speaker 03: And that the secretary, the PRB, and the secretary [00:27:33] Speaker 03: could have reversed the decision of the commanding officer. [00:27:37] Speaker 03: What are we supposed to do now? [00:27:39] Speaker 04: Before I mention that, Your Honor, can I just mention the Section 315 that we were discussing earlier? [00:27:44] Speaker 04: And I will certainly answer that question, Your Honor. [00:27:46] Speaker 04: Section 315 demonstrates not the... Now, why don't you try to answer the question, and then you can go on to the... OK, thank you, Your Honor. [00:27:55] Speaker 04: If the court finds that the BCNR's [00:27:58] Speaker 04: decision on pages 38 and 40 of the record are insufficient to be a harmless error determination that the court should have reviewed, then a remand to the court of federal claims to then remand back to the BCNR to explicitly look at this issue with any of the comments that your honors have found this analysis to be insufficient and to review it at that point. [00:28:22] Speaker 04: And that board is capable of correcting. [00:28:24] Speaker 05: I'm just trying to think this through. [00:28:26] Speaker 05: So the BCNR could have said that he gets tuition for senior year. [00:28:35] Speaker 04: Yes. [00:28:36] Speaker 05: Right? [00:28:37] Speaker 05: And the BCNR has already said that he didn't have to pay back tuition for his junior year. [00:28:45] Speaker 05: He's recouped. [00:28:48] Speaker 05: He's now gotten back what he already paid back. [00:28:51] Speaker 04: I'm not sure if he's received the check, Your Honor, but it's been ordered. [00:28:53] Speaker 05: Nobody's contesting that. [00:28:55] Speaker 05: And then that would leave open the question of the sophomore fall term of the sophomore year, which is still in the air. [00:29:03] Speaker 04: Yes, the board could consider that as well. [00:29:05] Speaker 04: Yes. [00:29:07] Speaker 04: So the board has authority. [00:29:08] Speaker 04: As the board explains on pages 38 and 40, it has authority to award these costs, these tuition, [00:29:14] Speaker 05: It just found that a warning... But it has authority to recommend to the secretary. [00:29:19] Speaker 04: Oh, of course. [00:29:19] Speaker 05: And the secretary, as you can see on page 41... Well, the secretary has twice engaged himself in this case. [00:29:28] Speaker 05: Correct. [00:29:29] Speaker 05: You know, once on the disenrollment and then with the recoupment and then with the reversal of the recoupment. [00:29:35] Speaker 04: Right. [00:29:36] Speaker 04: Yes, Your Honor. [00:29:38] Speaker 04: And that brings me exactly to 315, Your Honors. [00:29:41] Speaker 04: When drafting this, we did want to make the point that 315, [00:29:45] Speaker 04: And that is, I apologize, Your Honors. [00:29:50] Speaker 04: I'm just going to pull that up right now. [00:29:55] Speaker 04: It's appendix page 1512 and 1513. [00:29:56] Speaker 04: On 1512, you can see that it's termination of appointment. [00:30:02] Speaker 04: This section is addressing the secretary's authority over terminating the NRTC appointment, not OCS training. [00:30:12] Speaker 04: Of course, the secretary is in charge [00:30:15] Speaker 04: of the Navy and the Marine Corps overall and all personnel and training. [00:30:19] Speaker 04: It is our position that to say that the secretary delegates cannot make a decision regarding a training class would eliminate harmful error overall for military pay cases because no matter what happens, who along the chain of command makes a decision, the secretary always has the authority to overrule that. [00:30:42] Speaker 04: In that case there could never be any harmless error. [00:30:45] Speaker 04: So that is our position as to why the Marine Corps had final authority over Mr. Kennedy's enrollment in OCS. [00:30:55] Speaker 03: But you agreed they didn't have the final authority. [00:30:57] Speaker 03: Why do you keep saying that? [00:31:00] Speaker 03: You corrected your mistake and now you keep reintroducing it. [00:31:03] Speaker 03: I don't understand that. [00:31:04] Speaker 04: Well, I guess Your Honor, I'm just trying to make the distinction between... I guess the [00:31:10] Speaker 04: The distinction I'm trying to make is the secretary certainly has final authority over all parts of the Marines and Navy, but he's delegated certain decisions such as training classes to Marine officers in this instance. [00:31:25] Speaker 05: Where is that specific delegation? [00:31:27] Speaker 05: Did you show us that in your document? [00:31:29] Speaker 05: I couldn't see anything. [00:31:30] Speaker 05: It was really very clear in terms [00:31:32] Speaker 04: There is no regulation, Your Honor. [00:31:33] Speaker 04: I'll be very clear that there is no regulation that's aimed at a specific Marine officer that is in charge and whether or not an individual is eligible for a Marine Corps officer training school. [00:31:45] Speaker 04: Now, when reading 315, Your Honors, we apologize regarding that statement. [00:31:50] Speaker 04: You have shown us that we are wrong and with no intent to mislead. [00:31:54] Speaker 04: But we do believe that in order to preserve a harmless error doctrine in military pay cases, [00:31:59] Speaker 04: decisions made by delegates of the secretary of Navy. [00:32:04] Speaker 04: And we've shown that the Marine Corps has been delegated training over the Marine option students, the NCRT. [00:32:12] Speaker 05: That's an interesting way to create a delegation. [00:32:14] Speaker 05: I mean, ordinarily delegation requires to be very specific when you don't infer it from the existence of a legal doctrine. [00:32:21] Speaker 04: Well, Your Honor, you know, this is a situation, we're talking about training class here. [00:32:24] Speaker 04: We're not talking about NRTC, which is a program that entitles one to money. [00:32:28] Speaker 04: We're not talking about promotion. [00:32:30] Speaker 04: We're talking about this is specifically a training class. [00:32:33] Speaker 04: It's no different. [00:32:34] Speaker 04: I mean, it's practical training, but it's certainly no different than any of the other classes. [00:32:38] Speaker 05: I mean, this particular type of training happens to be quite important because as Mr. Kennedy realizes that he can't show entitlement to go back to OCS, he's disenrolled good for sure, because you cannot possibly succeed in this program if you fall through OCS. [00:32:53] Speaker 04: That's correct, Your Honor. [00:32:54] Speaker 04: But in the same sense, one of the naval science classes that Mr. Kennedy [00:32:57] Speaker 04: was enrolled in, if he had received an F grade in that class, is the secretary required to review that grade? [00:33:04] Speaker 04: Because we could require him to fail out of that class. [00:33:08] Speaker 05: Might it not determine the circumstances under which he got the F? [00:33:12] Speaker 04: I'm sorry, Your Honor. [00:33:13] Speaker 05: Might it not determine the circumstances under which he got the F? [00:33:17] Speaker 05: If he got the F because he was African-American, wouldn't that make a difference? [00:33:22] Speaker 04: Well, yes, Your Honor. [00:33:23] Speaker 05: You're not allowed to bar him from being able to make that argument. [00:33:25] Speaker 05: The answer is no. [00:33:26] Speaker 05: So you don't need to save the harmless error docker in order to be able to assure that you never can challenge these lower level decisions. [00:33:34] Speaker 04: Well, regardless, Your Honors, my final point, because I believe I'm over here, is that the harmless error decisions were made on pages 38 and 40 of the record. [00:33:44] Speaker 04: So further remand would be unnecessary here, because we did seek voluntary remand for this exact question, and it was answered. [00:33:51] Speaker 04: Thank you, Your Honors. [00:33:53] Speaker 02: Any more questions for the government? [00:33:55] Speaker 05: Oh, I have one question. [00:33:57] Speaker 05: Could I ask a question that threw out? [00:34:00] Speaker 05: There have been all of this citation to the CNET instruction 153312G. [00:34:07] Speaker 05: Yes, Your Honor. [00:34:09] Speaker 05: And nobody ever told us the provenance of that regulation. [00:34:12] Speaker 05: Has that regulation come down from the Secretary? [00:34:16] Speaker 05: Is it issued by the Chief of Naval Education and Training? [00:34:21] Speaker 05: It cites as its authority DOD Directive 12158. [00:34:25] Speaker 05: Yes, sir. [00:34:26] Speaker 05: Does that come from on high? [00:34:29] Speaker 04: Again, I think we're following a chain of things down. [00:34:33] Speaker 04: It does come from that DOD instruction. [00:34:36] Speaker 04: And then it is instructions issued by the Chief of Naval Education and Training. [00:34:40] Speaker 04: So it's not issued by the secretary's office. [00:34:43] Speaker 04: It is issued by the CNET, the Chief of Naval Education and Training Office, under the authority of that DOD section. [00:34:50] Speaker 05: Right. [00:34:51] Speaker 05: For example, when that regulation says CNET has been delegated authority to process and direct disenrollments, so long as the cases don't involve obligation for active service or recoupment, that's in 3015D. [00:35:03] Speaker 05: Right. [00:35:04] Speaker 05: Does that mean that the CNET can kick anybody out of the NROTC program so long as it isn't somebody who is obligated to service or it involves recoupment? [00:35:19] Speaker 04: Yes, Your Honor. [00:35:19] Speaker 05: That's an utter delegation down from the secretary or someplace else. [00:35:24] Speaker 05: So that so long as you're not dealing with either obligation to service or recoupment, they have the end authority. [00:35:31] Speaker 04: That's correct. [00:35:33] Speaker 05: But in this case, with regard to recoupment, the secretary has retained ultimate authority. [00:35:39] Speaker 04: That is correct. [00:35:40] Speaker 04: So that would not apply to Mr. Kennedy. [00:35:43] Speaker 05: That's in 14L, right? [00:35:46] Speaker 05: 314L. [00:35:48] Speaker 05: SACNAB may order obligated to make them pay back. [00:35:51] Speaker 05: Yes. [00:35:52] Speaker 05: So all recoupment cases will end up on the secretary's desk for... As they did here. [00:35:59] Speaker 04: Well, the assistant secretary signs in footnote two of our brief. [00:36:03] Speaker 04: We note that the assistant secretary for the Navy has been delegated. [00:36:09] Speaker 05: And a disenrollment of somebody who's obligated to active service, such as Mr. Tanning, that's going to end up on the secretary's desk as well. [00:36:17] Speaker 04: Yeah, so under either Mr. Kennedy's looking at this or our original erroneous looking at this, the Secretary of the Navy makes the final decision on whether Mr. Kennedy belongs in the NROTC. [00:36:30] Speaker 04: We absolutely do. [00:36:31] Speaker 04: Believe that it's the Marine Corps OCS where we argue that the Marine Corps has fun. [00:36:35] Speaker 05: I apologize for getting a little agitated, sir. [00:36:37] Speaker 05: But I spent all day yesterday not watching the Ryder Cuff and not watching the Redskins, but reading all these rules and regulations so I could become prepared. [00:36:46] Speaker 04: I apologize. [00:36:47] Speaker 05: And Mr. Kennedy and I- Accidental slip up on your part. [00:36:50] Speaker 05: Right. [00:36:50] Speaker 05: I must confess, dialed my heat up a little bit. [00:36:53] Speaker 04: I apologize for ruining the Ryder Cuff for you, Your Honor. [00:36:56] Speaker 05: Mutual, like mutual promises, mutual apologies. [00:36:58] Speaker 05: Yes. [00:36:59] Speaker 05: Made and accepted. [00:37:00] Speaker 04: Thank you, sir. [00:37:01] Speaker 04: And thank you very much, Your Honors. [00:37:02] Speaker 02: Thank you, Mr. Grimaldi. [00:37:04] Speaker 02: Mr. Kennedy, you have your rebuttal time. [00:37:14] Speaker 00: Thank you, Your Honors, for the rebuttal time. [00:37:17] Speaker 00: A few observations I'd like to make in response to the Department of Justice. [00:37:22] Speaker 01: First, if there is to be a remand in order to [00:37:27] Speaker 01: ascertain what would have happened, I respectfully submit that current regulations will control that remand decision. [00:37:38] Speaker 01: As I noted in my letter brief to this court, current regulations from the Commandant of the Marine Corps. [00:37:44] Speaker 05: Mr. Fannie, you've given us the regulations that the Commandant promulgated in 2015, which presumably applied going forward, and whether or not those regulations are going to be [00:37:55] Speaker 05: and debate if there is a BC honor hearing or it's a matter for them to decide and not us. [00:38:02] Speaker 00: I'll take that for what it's worth, Your Honor, yes. [00:38:04] Speaker 01: What do the regulations provide? [00:38:06] Speaker 01: The regulation provides that if someone is disenrolled from Officer Candidate School for medical reasons, he will be allowed to re-enroll in Officer Candidate School. [00:38:17] Speaker 01: I understand. [00:38:20] Speaker 01: Thank you, Your Honor. [00:38:22] Speaker 01: The Department of Justice is trying to divorce the decision of whether to allow a midshipman to retain his status in the NROTC scholarship program from the question of whether he should be permitted to enroll in officer candidate school. [00:38:38] Speaker 01: There's no basis in law for that divorce. [00:38:42] Speaker 01: As Mr. Grimaldi conceded before this court, the secretary's discretion in what to do with the plaintiff's status [00:38:51] Speaker 01: is broad and unbridled. [00:38:55] Speaker 01: That includes re-enrollment in Officer Candidate School. [00:39:18] Speaker 05: And your argument presumably is that in response to the government is that the BCNR might have made some type of a harmless error decision if they did in their decision, but it wasn't the one that they would make if this case were sent back to them. [00:39:35] Speaker 01: In this case, the BCNR has already determined, Your Honors, that disenrollment from the NRTC scholarship program was not mandatory before the performance review board. [00:39:47] Speaker 01: Does that answer your question, Dr. Clover? [00:39:48] Speaker 05: Yeah, well, they clearly said more and more relief could be granted. [00:39:53] Speaker 05: I just wanted to make one observation, if I could. [00:39:56] Speaker 05: And I've talked with the panel on this. [00:39:59] Speaker 05: And this is to the government as well. [00:40:00] Speaker 05: I mean, this is the kind of case that cries out for the parties recently to sit down and talk about settlement. [00:40:09] Speaker 05: It's perfectly clear that there's a problem here. [00:40:11] Speaker 05: It's perfectly clear that it's going to take time and money of everybody to try to sort this out. [00:40:17] Speaker 05: We're not talking about huge sums of money here, the kind of relief that BCNR could grant is within the realm of the parties to discuss. [00:40:24] Speaker 05: And so the panel was going to withhold its decision on this case for 30 days, in which time you should report back to us as to whether you had some discussions, and if so, whether they look like they'll bear fruit, and if you need more time for discussion, to tell us specific on what you're talking about. [00:40:42] Speaker 02: Does that make sense to the government? [00:40:44] Speaker 02: We'll just hold off for a minute. [00:40:47] Speaker 02: 30 days and see if there's something or other that you all can work out. [00:40:53] Speaker 01: Absolutely, Your Honors. [00:40:55] Speaker 01: Thank you. [00:40:55] Speaker 01: Thank you, Your Honors, for that opportunity. [00:40:57] Speaker 01: If the panel has no other questions, I believe I've made my argument. [00:41:01] Speaker 02: OK. [00:41:02] Speaker 02: Good. [00:41:02] Speaker 02: All right. [00:41:03] Speaker 02: We'll wait to hear from both of you within 30 days. [00:41:07] Speaker 00: Thank you, Your Honors. [00:41:08] Speaker 02: OK. [00:41:08] Speaker 02: The case is taken under submission. [00:41:12] Speaker 02: All right. [00:41:33] Speaker 04: The Honorable Court is adjourned until tomorrow morning at 10.