[00:00:00] Speaker 04: is number 16-1627, Laughlin versus United States. [00:00:06] Speaker 04: Mr. Montalvo. [00:00:10] Speaker 02: Good morning, Your Honors. [00:00:13] Speaker 02: May it please the Court. [00:00:16] Speaker 02: This is about an enlistment case. [00:00:21] Speaker 02: And the issue that's in the center of it is Commander Laughlin, who is in the courtroom, ADO. [00:00:29] Speaker 02: And so sometime during 2003, there was a discussion between the deputy chief of the Naval Corps and Commander Laughlin, Mr. Laughlin at the time. [00:00:43] Speaker 02: And they said the Navy had a need. [00:00:45] Speaker 02: And the need was to bring him on to active duty. [00:00:48] Speaker 02: And the benefit of that bargain for Commander Laughlin was that he was about to get a concurrent time for coming on to active duty. [00:00:58] Speaker 02: which is different from what would normally be the case. [00:01:02] Speaker 02: So the Navy's benefit was they had a manpower need. [00:01:05] Speaker 02: And this is described in the record. [00:01:07] Speaker 02: And they needed to bring on a sailor in this particular bill to fulfill a need for the Navy's manpower. [00:01:16] Speaker 04: But just to clarify here, if one looked just at the regulations, there wouldn't be any error in computing the active duty obligation, correct? [00:01:26] Speaker 02: The math of nine, [00:01:28] Speaker 02: is a correct. [00:01:30] Speaker 02: So there is, if you do four plus, you know, three plus one, if you do the math, Your Honor, then the math would not change. [00:01:39] Speaker 02: So the issue is not about the math. [00:01:40] Speaker 04: So in other words, under the regulations, it was computed correctly? [00:01:45] Speaker 04: No, Your Honor, because if... I'm leaving to one side the contract issue for the moment, but under the regulations, the active duty obligation was calculated correctly. [00:01:55] Speaker 02: Well, it depends, Your Honor, if you're looking at concurrent or consecutive time. [00:01:59] Speaker 02: So the total amount of time, if Your Honor is referring to, the total is nine. [00:02:05] Speaker 03: But if you view it as if you... What do the regulations say on the page? [00:02:09] Speaker 03: Don't they say it's not concurrent? [00:02:12] Speaker 02: No, Your Honor. [00:02:13] Speaker 02: So if you look at 10 USC 2123, it defers to the... Where do we find that? [00:02:24] Speaker 04: Is that in the brief? [00:02:25] Speaker 04: I'm sorry. [00:02:28] Speaker 02: It's one of the... [00:02:30] Speaker 02: Statutory authorities, Your Honor. [00:02:32] Speaker 04: Yeah, but where do we find it? [00:02:33] Speaker 02: So we can look at it when you're talking about it. [00:02:37] Speaker 02: Excuse me, Your Honor. [00:02:44] Speaker 02: The one I didn't mark always gets away. [00:02:47] Speaker 03: 2 and 10 will be reassigned. [00:03:00] Speaker 02: What I'm looking at, Your Honor, is 10 USC 2123 Echo 3. [00:03:07] Speaker 02: And so this is discussing the members of the program active duty obligation. [00:03:13] Speaker 04: Is it quoted in the brief? [00:03:16] Speaker 02: I believe so, Your Honor. [00:03:17] Speaker 02: I don't think so. [00:03:20] Speaker 04: Go ahead. [00:03:25] Speaker 02: May I? [00:03:26] Speaker 02: Go ahead. [00:03:27] Speaker 02: So I'll quote the subsection I'm referring to. [00:03:30] Speaker 02: It says, the Secretary of Defense shall prescribe regulations regarding the manner in which alternative obligations be given under the subsection. [00:03:38] Speaker 02: And so this is one of the titles that is referred to. [00:03:42] Speaker 03: So that's the authority for prescribing the regulation. [00:03:45] Speaker 03: In part, yes, Your Honor. [00:03:47] Speaker 03: So what are the pertinent regulations? [00:03:49] Speaker 02: What are the pertinent regulations? [00:03:50] Speaker 02: So if you then go to 52, [00:03:55] Speaker 02: 10, or I'm sorry, 52, 20, 41, then you'll see that the, because what we have is Mr. Laughlin coming on to active duty. [00:04:07] Speaker 04: Do the regulations say that this can't be concurrent? [00:04:12] Speaker 02: They're silent on that, Your Honor. [00:04:13] Speaker 04: The regulations are silent? [00:04:15] Speaker 02: That's correct. [00:04:15] Speaker 02: If you look at DOD 6000, let me pull that up. [00:04:27] Speaker 02: And if you look at subsection 6, tact 6, tact 3, tact 2, which is the civilian facility provision, it is silent on whether or not the obligation can run concurrent. [00:04:46] Speaker 02: It doesn't address that. [00:04:47] Speaker 03: Can I just back away for a second? [00:04:49] Speaker 03: I mean, the questions were background questions to figure out what the law or the regulations said about concurrent as opposed to consecutive. [00:04:59] Speaker 03: And the short of the matter is, in your brief, I don't understand you to be challenging the mayhem. [00:05:04] Speaker 03: The appeal you're bringing here isn't saying that the numbers got computed the wrong way. [00:05:09] Speaker 03: I understand your appeal to be that you want the Court of Federal Claims to send your case back to the Board for Correction for Naval Records. [00:05:16] Speaker 03: because there's something they didn't understand when they made their decision in your case. [00:05:22] Speaker 02: Yes, Your Honor. [00:05:22] Speaker 02: And what they didn't. [00:05:23] Speaker 03: I mean, so I don't understand. [00:05:24] Speaker 03: I mean, the actual numbers that were run up that the court of honor claims premised in its opinion, you're not challenging that in your appeal. [00:05:34] Speaker 02: The math of nine is not being challenged, Your Honor. [00:05:36] Speaker 02: It's the concurrency of how the obligation is to be paid back. [00:05:41] Speaker 04: So what you're saying is that as a matter of contract, [00:05:45] Speaker 04: the government agreed to allow these to go concurrently, and that that's not contrary to the regulations, because the regulation doesn't say anything about concurrent or consecutive. [00:05:56] Speaker 02: Is that a fair statement? [00:05:57] Speaker 02: Yes, Your Honor, the subordinate regulation doesn't, and the 10 USC 2123 does provide for the service secretaries to waive obligations. [00:06:07] Speaker 02: So it's within the secretary's discretion how they're going to [00:06:11] Speaker 04: I don't understand waiver of the regulation. [00:06:14] Speaker 04: You say the regulation doesn't deal with a concurrency issue. [00:06:17] Speaker 04: There's no waiver issue. [00:06:19] Speaker 02: Well, if you look at the BUMED policy memo that came out, and I'll cite to that. [00:06:26] Speaker 04: Is that where the concurrency obligation comes from or a rule comes from? [00:06:30] Speaker 02: Well, what ended up happening in the record factually? [00:06:34] Speaker 03: Where do you say that the regs don't deal with this? [00:06:37] Speaker 03: I'm reading, looking from the opinion, Appendix 3, third opinion, citing the regulations to say that the regulations for the FAP statute say no portion of the activity may be satisfied concurrently with any other active service duty. [00:06:53] Speaker 02: That's serving. [00:06:55] Speaker 02: There's a quote, and I think that's recording back to 6. [00:07:00] Speaker 03: That's citing DODI 6000.13. [00:07:06] Speaker 02: Yes, sir. [00:07:07] Speaker 02: Yes, Your Honor. [00:07:08] Speaker 02: And that's, I believe, a reference to the subparagraph in that regulation, 6.4.9. [00:07:15] Speaker 02: And so that's dealing with a separate period of time that we're talking about. [00:07:20] Speaker 02: If we're looking at... What kind of a separate period? [00:07:24] Speaker 03: I mean, the court fair claims judge was of the view that the regulations on their face said that you have to serve these things consecutively. [00:07:34] Speaker 02: Right. [00:07:35] Speaker 02: There was a misunderstanding as to that particular issue, Your Honor, and if I may. [00:07:38] Speaker 03: I didn't understand you to be appealing that. [00:07:42] Speaker 02: No, Your Honor. [00:07:43] Speaker 02: The issue, though, is [00:07:44] Speaker 02: So your honor is raising a question. [00:07:46] Speaker 03: We're now talking about whether or not the regulations have anything to say at all about the concurrent versus consecutive. [00:07:52] Speaker 03: And I'm certain the government is going to tell us what their views are. [00:07:55] Speaker 03: Sure. [00:07:55] Speaker 03: So the relevance... Your theory is a implied, in fact, contract theory, right? [00:08:00] Speaker 03: Yes, Your Honor. [00:08:01] Speaker 03: That you believe that you can sustain your contract theory based on promises made to you. [00:08:06] Speaker 02: Yes, Your Honor. [00:08:07] Speaker 03: And you believe you've got some evidence showing that at least [00:08:10] Speaker 03: two people who are now retired from the service benefited from the promise that you believe you had. [00:08:16] Speaker 02: Yes, sir. [00:08:17] Speaker 03: And there are other people who, for a short period of time, benefited from the promise, but the Navy changed its mind. [00:08:23] Speaker 03: Yes, sir. [00:08:24] Speaker 03: As to the others. [00:08:25] Speaker 02: Yes, sir. [00:08:26] Speaker 02: And in addition to that, so there are two subsections that the court is potentially referring to. [00:08:32] Speaker 03: Where does your case fall on the schism? [00:08:37] Speaker 03: If you look at schism, schism says that there is no such thing operable. [00:08:44] Speaker 03: A contract theory is not operable, where what is at stake is military pay or benefits that are basically dictated by statute or regulation. [00:08:57] Speaker 03: And so there are outlier cases that deal with promises as to the particular type of training you may get when you go into service. [00:09:06] Speaker 03: For example, if the recruiter promises that you'll learn plumbing skills, but the military doesn't supply those, there's a contract cause of action, implied, in fact, contract cause of action for them. [00:09:20] Speaker 02: Yes, Your Honor. [00:09:20] Speaker 03: Why don't the benefits that you're asking for here fall on the other side in schism? [00:09:25] Speaker 02: So in schism, the focus was on an entitlement, such as military care. [00:09:32] Speaker 02: And so this is not an entitlement case. [00:09:34] Speaker 02: This isn't trying to offend a lack of authority. [00:09:38] Speaker 03: I understand this isn't a square case falling clearly on one side of schism. [00:09:44] Speaker 03: Schism has a dividing line. [00:09:46] Speaker 03: And the dividing line says certain types of claims can be made under contract, certain can't. [00:09:53] Speaker 02: And so we believe that this falls into the enlistment negotiated bargain for benefit category, which SCISM refers to GROKEY as well. [00:10:05] Speaker 02: And then we also have Cincerelli. [00:10:07] Speaker 03: But your case also involved years of service, years of service in tail pay, correct? [00:10:14] Speaker 02: Yes, sir. [00:10:14] Speaker 03: So your case at heart is the term of service. [00:10:19] Speaker 02: Yes, Your Honor. [00:10:19] Speaker 02: So if you look at Cincerelli, which is 662F2nd, 73. [00:10:23] Speaker 03: There's no question here of a denial that your client was denied the dentistry training that he was seeking to get. [00:10:33] Speaker 02: Well, it's not a training issue, Your Honor. [00:10:35] Speaker 02: It's a contract entitlement. [00:10:37] Speaker 03: That's why I'm trying to find out where your case falls on the schism law. [00:10:40] Speaker 02: Yes, Your Honor. [00:10:41] Speaker 02: So in the negotiated bargain for him to come on active duty, he gave up something and the Navy gained something. [00:10:46] Speaker 04: Well, what I understand you to be saying, maybe I'm mistaken about this, is that this is not a subject that is concurrent versus consecutive. [00:10:54] Speaker 04: It is not a subject that is dealt with in the statute or regulations. [00:10:59] Speaker 04: And therefore, it could be the subject of a contract. [00:11:02] Speaker 04: No? [00:11:02] Speaker 02: No. [00:11:03] Speaker 04: Why is what I said wrong? [00:11:05] Speaker 02: Yes, Your Honor. [00:11:07] Speaker 02: There are multiple pieces of this regulation. [00:11:10] Speaker 04: Explain to me why what I said is wrong. [00:11:12] Speaker 02: Yes, Your Honor. [00:11:12] Speaker 02: Because some of what the regulation addresses, the subordinate regulation, [00:11:16] Speaker 02: Talks about what you can do on waivers and what you can do with obligated time. [00:11:20] Speaker 04: Forget about that. [00:11:21] Speaker 04: Just address my question. [00:11:23] Speaker 04: My question is, you're arguing that the regulations don't deal with concurrent versus consecutive. [00:11:29] Speaker 04: Is that correct? [00:11:30] Speaker 04: They don't address the waiver. [00:11:32] Speaker 04: Waiver? [00:11:33] Speaker 04: I don't understand waiver. [00:11:35] Speaker 04: Do they deal with concurrent versus consecutive? [00:11:38] Speaker 02: In this specific case, Your Honor, they do not address specifically the issue that is presented in the facts in this case. [00:11:45] Speaker 04: That's not answering my question. [00:11:47] Speaker 04: Do they deal with concurrent versus consecutive? [00:11:50] Speaker 02: There is language that addresses concurrent and consecutive, but as it relates to his presence in a civilian facility, it is silent as to whether it could be concurrent or consecutive. [00:12:02] Speaker 02: So the authority is delegated to the service secretaries. [00:12:05] Speaker 02: They can determine how they are going to manage their manpower strength. [00:12:09] Speaker 02: There are certain benefits, bonuses. [00:12:12] Speaker 02: The court is well aware of the history of recruitment bonuses and incentives. [00:12:15] Speaker 02: We're talking about professional. [00:12:17] Speaker 02: We're talking about a little bit of a different discussion, whereas a regular contract person would come in. [00:12:22] Speaker 02: This is not just four years and go. [00:12:24] Speaker 02: It's we're trying to bring in a medical professional because there's an acute need. [00:12:28] Speaker 04: So at the time of the benefit of the bargain... If we conclude that the regulations say that it can't be concurrent, how can it be that a contract could vary what's provided in the regulation? [00:12:39] Speaker 04: That seems to be schism. [00:12:41] Speaker 02: Because in schism, you're talking about is there authority, right? [00:12:45] Speaker 02: to do the thing that you're doing. [00:12:47] Speaker 02: And so what I'm suggesting is the federal statute, which is governing, does grant the service secretary the discretion to make determinations as to the obligated time. [00:12:59] Speaker 02: And that is 2123. [00:13:01] Speaker 03: So the law... [00:13:04] Speaker 03: Statute says we delegate down to make rules and regulations. [00:13:09] Speaker 03: Correct, Your Honor. [00:13:09] Speaker 03: 2123 itself doesn't say you can go either way. [00:13:13] Speaker 03: It says you can make a regulation. [00:13:16] Speaker 03: So then we look at the regulation. [00:13:18] Speaker 03: 2123, as I understand it, is simply an authorizing, a power authorizing, a delegating provision. [00:13:27] Speaker 03: Yes, Your Honor. [00:13:28] Speaker 03: As the way you cited it too. [00:13:29] Speaker 02: So the section in 6000, DODI 6000, TAC 13, [00:13:34] Speaker 02: And the subsection 6.632. [00:13:36] Speaker 02: 3.2, Your Honor. [00:13:39] Speaker 02: So it's on page 14. [00:13:44] Speaker 02: And so this is under the heading minimum terms of service in ADOs for health professional officers. [00:13:56] Speaker 02: And then it goes to in a civilian facility. [00:13:58] Speaker 02: So as the commander was at the time, he was in a civilian facility doing his training. [00:14:05] Speaker 02: So when they approached him to negotiate this, he was in a civilian facility continuing his training. [00:14:10] Speaker 02: So as a member subsidized by the Department of Defense during training civilian facilities shall incur an ADO of one. [00:14:16] Speaker 02: And then it goes through the math. [00:14:17] Speaker 02: Then the secretary of the military department may permit [00:14:21] Speaker 02: The last half of the incurred obligation to be satisfied by service in the selected reserves for a time period equal to the remaining EDO. [00:14:30] Speaker 02: And that's all it says. [00:14:32] Speaker 02: And so what they did in this particular case is not addressed by the regulation. [00:14:36] Speaker 02: And that is the section that addresses his service in the civilian facility, Your Honor. [00:14:44] Speaker 02: And so then you say, does the service secretary have the authority [00:14:47] Speaker 02: to do what they did in this case. [00:14:50] Speaker 04: No, it's not a question of whether the service authority has it. [00:14:53] Speaker 04: It's a question of whether the particular individuals that you say made these promises had authority to do it. [00:15:00] Speaker 04: And what's the basis for concluding that they had authority? [00:15:03] Speaker 02: That's correct, Your Honor. [00:15:04] Speaker 02: So if we look at the BUMED instructions, the service secretary, so DODI then says the service secretaries will manage this internally to their departments. [00:15:14] Speaker 02: And then the secretary of the Navy [00:15:16] Speaker 02: has delegated that authority to the head or the chief of the naval department. [00:15:20] Speaker 02: And the chief of the naval department in the record is reflected as the one who granted the authority for Commander Laughlin to be transferred from his civilian status on to active duty status. [00:15:30] Speaker 02: Because normally you would have to apply for a board, and Commander Laughlin did not do that. [00:15:35] Speaker 02: He did not say, I want to do this. [00:15:36] Speaker 02: He didn't solicit this from the Navy. [00:15:38] Speaker 02: The Navy went to him and said, [00:15:40] Speaker 02: We need you to do this, and this is the benefit that you're going to get. [00:15:43] Speaker 01: Can you argue this in your briefs? [00:15:45] Speaker 01: Because I read your briefs as predominantly going to the point that you submitted some additional evidence, and you want to have the case remanded to the board for consideration of that evidence. [00:15:57] Speaker 01: So I'm just confused. [00:15:59] Speaker 01: Did you make this particular point in your brief? [00:16:01] Speaker 01: And if so, where would that be? [00:16:04] Speaker 02: The brief's focus, Your Honor, was on the fact that after the BCNR made their decision, [00:16:09] Speaker 02: additional evidence was gathered in the administrative record that they did not previously consider. [00:16:16] Speaker 03: And that evidence goes to the... It was considered by the secretary. [00:16:20] Speaker 03: When you appealed up to the secretary from the board, this additional information had been included in the administrative record by then. [00:16:29] Speaker 02: Mr. Woods... Correct. [00:16:33] Speaker 02: ...considered part of it, Your Honor. [00:16:34] Speaker 02: Correct. [00:16:34] Speaker 02: Yes, yes. [00:16:35] Speaker 03: Yes, Your Honor. [00:16:36] Speaker 03: So the information was in front of the secretary. [00:16:40] Speaker 03: And the secretary declined the relief that you sought. [00:16:43] Speaker 02: Mr. Woods declined to overturn the BCNR's decision. [00:16:47] Speaker 03: Right. [00:16:47] Speaker 03: But he had in front of him the additional information that you believe if we sent it back to the BCR, the BCR would change its mind. [00:16:57] Speaker 03: Yes, Your Honor. [00:16:59] Speaker 03: But that information was in the hands of the secretary, became part of the administrative record. [00:17:05] Speaker 02: Yes, Your Honor. [00:17:06] Speaker 03: And that information was in front of the Court of Federal Claims. [00:17:09] Speaker 02: It was, Your Honor. [00:17:11] Speaker 03: However, what's the purpose of a remand? [00:17:15] Speaker 02: The remand, if we look at the discussion that was had in the original petition and we look at the additional evidence, we believe that the board's reconsideration of the additional evidence in totem would give them an opportunity to reconsider the position. [00:17:34] Speaker 02: I think if you look at the discussion that Mr. Woods had, he relied heavily on Admiral Wagner, [00:17:39] Speaker 02: in making the determination. [00:17:41] Speaker 02: But if you look at Admiral Wagner's discussion back and forth with Mr. Woods, the issues were, first of all, she came up with two or three different calculations for the number, his ADO. [00:17:53] Speaker 02: And then she originally said, I do agree that he should be getting the 2012. [00:17:59] Speaker 02: I will support that, because there was an issue. [00:18:01] Speaker 04: I think Mr. Mantella, we're out of time. [00:18:04] Speaker 04: We'll give you three minutes for rebuttal. [00:18:05] Speaker 04: Yes, sir. [00:18:20] Speaker 04: Mr. Muller. [00:18:22] Speaker 00: Please, court. [00:18:23] Speaker 00: Good morning. [00:18:24] Speaker 00: Before getting to any of the issues that were raised on this particular appeal, there is one thing I'd like to highlight. [00:18:31] Speaker 00: It's the government's position that on the assumption that Commander Laughlin is seeking pay at this point, which we believe is distinct from what he was seeking at the BCNR the first time he was there, there is no obstacle to him filing a new petition at the BCNR. [00:18:50] Speaker 00: does not need a remand from this court or the Court of Federal Claims to get before the BCNR again. [00:18:58] Speaker 04: OK, so what do the regulations tell us about concurrency? [00:19:05] Speaker 00: It's our position that Judge Lettshoe got it absolutely correct. [00:19:08] Speaker 03: He's run us through it. [00:19:10] Speaker 03: It's the chapter and verse. [00:19:12] Speaker 00: OK, so the DOD instruction 6000.13 says that no [00:19:19] Speaker 00: Is this quoted in the briefs? [00:19:22] Speaker 00: Not in my briefs. [00:19:24] Speaker 00: OK. [00:19:24] Speaker 00: This is in the decision. [00:19:26] Speaker 03: So are you referring to DODI 6000.13? [00:19:29] Speaker 03: I am. [00:19:30] Speaker 03: And then it's section 6.62? [00:19:36] Speaker 00: Yes, and then 6.49. [00:19:37] Speaker 00: OK. [00:19:39] Speaker 03: So that's where this regulation is promulgated pursuant to the authority that's been cited by your adversary? [00:19:45] Speaker 00: I believe so, yes. [00:19:46] Speaker 03: So there's a proper delegation of that authority, right? [00:19:50] Speaker 03: And something that's referring to all the periods of service he's talking about here. [00:19:55] Speaker 03: I mean, he has several. [00:19:56] Speaker 03: He's gone to school, and then for a couple times, then he goes to a place for one year, and then he goes someplace else. [00:20:02] Speaker 00: Yes. [00:20:03] Speaker 03: Is all of that service governed by this regulation? [00:20:06] Speaker 03: Yes. [00:20:07] Speaker 03: And this regulation states on its face, right? [00:20:12] Speaker 03: that no portion of the active duty service can be satisfied concurrently with any other active duty service or an obligation incurred? [00:20:20] Speaker 00: Correct. [00:20:21] Speaker 00: And we believe the no that begins that no portion is global, is encompassing. [00:20:27] Speaker 00: So unless there is an exception, there is an exception for training performed at a military facility, which Commander Laughlin did not do, then it all has to be consistent. [00:20:37] Speaker 03: His training was all in civilian facilities? [00:20:39] Speaker 03: Yes. [00:20:40] Speaker 03: And this covers that? [00:20:41] Speaker 03: Yes. [00:20:43] Speaker 03: And it's a blanket provision. [00:20:45] Speaker 03: So let me ask you my schism question. [00:20:48] Speaker 03: Which side of schism does this case fall on? [00:20:53] Speaker 03: I know the department was randomly chastised by Judge Friedman many years ago for arguing a case that got us on the other side. [00:21:02] Speaker 03: But this one doesn't fall neatly in the form of military pay or retirement benefits. [00:21:08] Speaker 03: That's schism. [00:21:09] Speaker 00: Correct. [00:21:09] Speaker 00: Right, right. [00:21:10] Speaker 03: So, right, schism doesn't... And it is governed by statute and regulation. [00:21:15] Speaker 00: Yes. [00:21:16] Speaker 00: So the part of schism that the government always prefers, that it's governed by statute and regulation, I think, as Mr. Montal was making clear, that this isn't directly a contract that he's arguing for, directly for the military incentive pay that he's seeking, rather that it's a contract concerning Commander Laughlin's active duty obligation [00:21:35] Speaker 00: that has some downstream effects potentially based on what Commander Loughlin was thinking that he wanted to do with his career that may implicate the special incentive. [00:21:45] Speaker 00: So to the extent that there's, so if we're going to go to the ability to contract outside the scope of these regulations we've just talked about to determine someone's. [00:21:58] Speaker 04: Well, the ability to contract in contradiction to the regulations. [00:22:03] Speaker 00: Thank you. [00:22:03] Speaker 00: where I was going to go. [00:22:05] Speaker 00: Yes, in contradiction, the one statute we haven't talked about, but Judge Leto cites, 10 USC 2005, provides generally that the secretary may require written agreements from service members as a condition of receiving advanced education, just like Commander Laughlin did. [00:22:22] Speaker 03: That's 10 USC 2005, you said? [00:22:25] Speaker 01: Yes. [00:22:25] Speaker 01: And those kinds of agreements were achieved here? [00:22:28] Speaker 01: There are agreements. [00:22:29] Speaker 00: There are agreements like this. [00:22:30] Speaker 00: There was some issue. [00:22:32] Speaker 00: I don't believe that it's being litigated here as to whether Commander Laughlin signed one of those. [00:22:37] Speaker 03: Would the agreements go to the number of years involved? [00:22:40] Speaker 03: Is that what it is? [00:22:42] Speaker 00: They do. [00:22:42] Speaker 00: And in the subpart, that's what I was going to say, subpart A describes what the agreement shall include. [00:22:48] Speaker 04: Well, they deal with the concurrency issue, too, right? [00:22:52] Speaker 00: Well, the way they, yes, they refer to the regulations. [00:22:55] Speaker 03: Do we have all these agreements in the record? [00:22:57] Speaker 00: You do. [00:22:58] Speaker 00: And in the appendix, I believe. [00:23:00] Speaker 03: Can you tell us where? [00:23:03] Speaker 03: Well, maybe somebody can look it up and tell us. [00:23:07] Speaker 03: The briefing, personally, hasn't been very helpful to me to try to resolve some of these issues we're talking about now. [00:23:15] Speaker 03: And to be sure, we raised schism for you that hadn't been raised in the briefs. [00:23:21] Speaker 00: Right. [00:23:22] Speaker 00: We were under the impression that this was a request for a remand. [00:23:24] Speaker 03: Do these agreements deal, for example, with a particular type of training that Commander Laughlin was expecting to receive? [00:23:32] Speaker 00: Yeah, in general, they're for his undergraduate, for his graduate. [00:23:35] Speaker 03: With the type of training, that tends to make it look like the case falls on the safe side of schism. [00:23:41] Speaker 00: Yes. [00:23:42] Speaker 03: Assuming that there isn't a bar to the contract theory simply because of the fact of the regulation. [00:23:49] Speaker 00: I would say, look back at the statute, 10 U.S.C. [00:23:52] Speaker 00: 2005, it stipulates that the agreement shall include the type of training that's going to be received. [00:23:59] Speaker 00: then that there will be an active duty payback obligation. [00:24:03] Speaker 00: The service member has to perform both. [00:24:05] Speaker 00: Subsection A2 provides that if the service member fails to complete the education, that service member still has to fulfill the active duty obligation, service subsection three. [00:24:16] Speaker 00: If the service member doesn't complete the active duty or doesn't fulfill the training obligation, they're subject to repayment. [00:24:25] Speaker 00: In such other conditions as the secretary [00:24:27] Speaker 03: may prescribe, subsection B. You have to serve the extra time if you don't complete? [00:24:32] Speaker 00: If you don't, yeah. [00:24:34] Speaker 03: Basically, if you sign up for Act. [00:24:35] Speaker 03: I mean, that went into a two-year training period, and he's going to have to do two more years of service as a result of that. [00:24:41] Speaker 03: Yes. [00:24:41] Speaker 03: But he flunked out after the first year of the two-year training. [00:24:44] Speaker 03: He was still owed two years. [00:24:46] Speaker 00: That's what it says. [00:24:47] Speaker 00: And then subsection B of 10 U.S.C. [00:24:50] Speaker 00: 2005 says that the active duty period is determined by the secretary unless [00:24:54] Speaker 00: There's a provision of law that specifies what that active duty obligation is supposed to be. [00:24:59] Speaker 00: And if that's the case, the regreement must reflect that. [00:25:01] Speaker 00: And that's where you go to Section 6000. [00:25:04] Speaker 03: The individuals that made the promises to Commander Laughlin that he believes they made to him in terms of being able to serve in a concurrent fashion instead of consecutive, what authority did they have to bind the government by contract? [00:25:20] Speaker 00: Under what we just talked about, I would say [00:25:22] Speaker 00: They don't have any authority to bind the government by contract that's inconsistent with- Under what, under this, 2005? [00:25:28] Speaker 00: 10 U.S.C. [00:25:29] Speaker 03: 2005 subsection B. And what does section D say again? [00:25:34] Speaker 00: Sorry, B as in boy. [00:25:36] Speaker 00: It says that these written agreements that can accompany these service for training arrangements, they have to stipulate what the active duty repayment obligation is going to be. [00:25:46] Speaker 00: And the secretary has some latitude. [00:25:48] Speaker 00: Unless there's any provision of law that specifies what [00:25:52] Speaker 00: that active duty payment must be. [00:25:54] Speaker 00: In other words, disagreement cannot exceed if there's regulation, as there is at 6,000.13. [00:25:59] Speaker 01: You're saying that this regulation expressly would prohibit any sort of implied contract. [00:26:05] Speaker 01: Thank you. [00:26:06] Speaker 01: Yes, that's a much more succinct way. [00:26:07] Speaker 04: So what does a contract say about concurrency? [00:26:12] Speaker 00: Can you give me one of those? [00:26:13] Speaker 00: I believe it says that it reflects what the regulation says. [00:26:18] Speaker 04: Well, the written contract will say, if you are in a civilian quote for us, the portion of the written contract that deals with concurrence. [00:26:27] Speaker 00: All right. [00:26:31] Speaker 00: So we're looking at the joint appendix 436. [00:26:34] Speaker 00: 436. [00:26:34] Speaker 00: 436 to 437. [00:26:38] Speaker 04: Which volume is that? [00:26:42] Speaker 00: You know, I wouldn't, yeah, probably volume two. [00:26:45] Speaker 00: Thank you. [00:26:52] Speaker 00: Okay. [00:26:57] Speaker 03: This is the contract? [00:26:59] Speaker 00: This is one of them. [00:27:02] Speaker 04: So where does it deal with concurrency? [00:27:04] Speaker 00: Paragraph two begins, or concurrency, it [00:27:18] Speaker 00: Oh, paragraph three on page 437. [00:27:20] Speaker 00: I'm sorry. [00:27:27] Speaker 00: On page 437-3, paragraph three, it says, time spent in any GPE program does not fulfill previously incurred ADO obligation. [00:27:37] Speaker 00: ADO incurred from this agreement and any other ADO will be satisfied concurrently for training in a military facility and consecutively for training in a civilian facility [00:27:47] Speaker 00: at the conclusion of the training program. [00:27:50] Speaker 00: So it references the regulations and draws that distinction between what location you're receiving your training at. [00:27:57] Speaker 03: Your argument would be that even if his contract dooms his theory. [00:28:06] Speaker 00: Well, yeah, this contract is consistent with the applicable statutes and regulations. [00:28:10] Speaker 03: The contract that he would be seeking to enforce [00:28:14] Speaker 03: And he's arguing now that he has a different contract than the contract he signed. [00:28:18] Speaker 00: That's why I hesitate. [00:28:20] Speaker 00: He says he didn't sign, right? [00:28:22] Speaker 00: Yes, and in fact, I believe this is the copy that he says he didn't sign. [00:28:25] Speaker 00: If you look on 437, there's not a signature on it. [00:28:28] Speaker 01: You said that was a dispute below, but it's not here on appeal? [00:28:31] Speaker 00: I don't understand that to be briefter between the parties here. [00:28:34] Speaker 01: I don't either. [00:28:35] Speaker 01: So that would be something that would be conceded at this point? [00:28:38] Speaker 00: Yes, that would be our position. [00:28:41] Speaker 03: But is it so that he didn't sign the contract? [00:28:45] Speaker 03: I'm sorry? [00:28:45] Speaker 03: He did not sign? [00:28:46] Speaker 00: Not this particular copy, no. [00:28:49] Speaker 03: Is there any copy that he did sign? [00:28:52] Speaker 00: Again, this is one of them for his several different types of trainings. [00:28:57] Speaker 00: I believe that this one contract was not signed. [00:29:02] Speaker 00: However, he did receive all of his training, and he has subsequently [00:29:09] Speaker 00: after he was at the BCNR. [00:29:10] Speaker 03: In your theory, the contracting officer would lack authority to enter into any type of a contract in Biden, Becker, or otherwise that didn't respect the concurrent consecutive union? [00:29:24] Speaker 00: Yes. [00:29:25] Speaker 00: That's our position. [00:29:26] Speaker 00: Also, the other agreements that I signed, and I'm sorry that I don't have one handy for you, contain the same language. [00:29:35] Speaker 00: And so we go to that part in schism, the discussion of you can't have an implied fact contract that is in contradiction to your written terms. [00:29:45] Speaker 00: It will help the court. [00:29:46] Speaker 03: What's the administrative record that's in front of us? [00:29:50] Speaker 03: Does it include what went to the secretary after the BCNR concluded its proceedings? [00:29:55] Speaker 00: It does. [00:29:57] Speaker 00: Yes. [00:29:58] Speaker 03: And how does that impact Commander Laughlin's desire to be sent back to the BCNR at this stage of the year? [00:30:12] Speaker 00: Court of Federal Claims, considering the pay issue that was properly before and under the Tucker Act, could consider this originally. [00:30:20] Speaker 00: It has original jurisdiction to do that. [00:30:22] Speaker 00: It does not have to send it back to the BCNR. [00:30:24] Speaker 00: Had Commander Laughlin made that request during the proceedings below, I can assure you we would have exceeded to that. [00:30:31] Speaker 00: We do as a normal course. [00:30:33] Speaker 00: Some decisions from this court as far back as HICIC acknowledge that that is our normal practice. [00:30:38] Speaker 00: But that didn't happen. [00:30:40] Speaker 04: But there's nothing in this new material that bears on the authority of these individuals in the Navy to make promises that contradicted the contract and the regulations. [00:30:49] Speaker 00: There is not. [00:30:52] Speaker 00: No. [00:30:54] Speaker 03: The board's... Your position is that the absence of authority in the hands of the people who are making the promises is fatal to any contract claim you would try to mount. [00:31:04] Speaker 00: Certainly in the Court of Federal Claims, the board's authority is to correct errors or injustices. [00:31:09] Speaker 00: As I think this case is an example, they will follow the statutes and regulations. [00:31:13] Speaker 00: However, the law that says we shouldn't presume what another body has discretion, I guess, [00:31:25] Speaker 00: to do. [00:31:26] Speaker 00: If they reconsidered it, I suppose there's every possibility that they might look at this. [00:31:31] Speaker 00: And again, there's nothing procedure, there's no statute of limitations standing in Commanders Loughlin's way, just simply going back. [00:31:39] Speaker 03: Well, you're saying you're giving away more than I thought you would. [00:31:42] Speaker 03: You're saying that the authority of the BCNR is so expansive that it could find here an implied, in fact, contract even though there is no authority whatsoever for the government to have their end to it. [00:31:54] Speaker 00: I'm not saying exactly that. [00:31:56] Speaker 03: I'm saying it's not... They can pledge the fisc in the face of the law. [00:31:59] Speaker 00: It's not coterminous with that of the Court of Federal Claims, and language is broader. [00:32:05] Speaker 04: They could decide that it was unfair because people called him that it could be concurrent, that it wasn't allowed to be concurrent. [00:32:11] Speaker 04: They can do equity. [00:32:12] Speaker 00: Even though he had no legal right to that. [00:32:17] Speaker 00: Correct. [00:32:17] Speaker 00: predicting that that would happen. [00:32:19] Speaker 03: And then if they decided that, the Navy would be able to go to the secretary and ask for a review of that decision. [00:32:26] Speaker 04: Correct. [00:32:30] Speaker 04: OK. [00:32:30] Speaker 04: Anything further? [00:32:34] Speaker 00: Nothing. [00:32:34] Speaker 00: We just respectfully request that this court affirm the decision of the Court of Federal Plains. [00:32:38] Speaker 04: OK. [00:32:39] Speaker 04: Thank you, Mr. Pollack. [00:32:42] Speaker 04: Mr. Montalvo, you have three minutes. [00:32:44] Speaker 04: Yes, sir. [00:32:51] Speaker 02: May I ask the court to consider Appendix 341? [00:32:54] Speaker 02: This is an email between Commander Carson and Commander Laughlin, dated September 3, 2010, which addresses the fact that there was no contract. [00:33:08] Speaker 02: He was the first one. [00:33:09] Speaker 02: There's no precedent for the process. [00:33:11] Speaker 02: And they're not going to have the paperwork to accompany it. [00:33:13] Speaker 02: And so the contract that the government was just referring to is the fellowship contract, which came some time later. [00:33:19] Speaker 02: So the issue of the ADO. [00:33:21] Speaker 02: This is addressed here in the due-ins. [00:33:25] Speaker 02: So converting him from civilian status to his active duty status, not the later on fellowship contract, which was also not signed. [00:33:32] Speaker 02: And if the court saw on the record that they later on tried to get Commander Laughlin to sign that document after he was raising the issue. [00:33:41] Speaker 02: And the issue arose in Appendix 340 when Commander Laughlin is asking to confirm his understanding of what is happening. [00:33:51] Speaker 02: It's September 3rd of 2010. [00:33:54] Speaker 02: And the special pay section, which controls this issue, says that according to the BUMED database, your obligated service date for training is July 2012. [00:34:03] Speaker 02: And so that was after an audit. [00:34:06] Speaker 02: So in 2010, when he's asking about this, they inform him that his date is exactly what was promised, which is the concurrent payback authority. [00:34:16] Speaker 02: And then as far as the authority to bring [00:34:18] Speaker 02: or give the approval to come on to due instruction, that's BUMEN Instruction 1520, TAC 41, which says that the applicants for GDA training are selected at the annual due-ins board or approved by the Chief of the Naval Dental Corps. [00:34:34] Speaker 02: So the Chief of the Naval Dental Corps is the one who reached out to Commander Laughlin and then negotiated this issue. [00:34:42] Speaker 02: As it relates to the ADO clarity or whether these are all addressed, if we look at, [00:34:49] Speaker 02: Appendix 35, which is the BUMA notice from the Surgeon General, it goes through a very detailed discussion about the fact that the ADO determinations are a very confusing issue. [00:35:03] Speaker 02: It says there are many factors involved in the calculation of OSDs and ADOs, and their situations arise where guidance set forth does not specifically address how OSDs and ADOs should be calculated, requiring the need for further clarification. [00:35:16] Speaker 02: And in fact, later on, in [00:35:19] Speaker 02: that particular appendices in page appendix 40, it talks about, in one of the examples, ADO for GME will be served consecutively per reference. [00:35:30] Speaker 02: See, no active duty obligation for GME can be served concurrent with an ADO for a second period of GME. [00:35:36] Speaker 01: Is this some of the new evidence that you're relying on, that you think there should be in the Andrews area? [00:35:42] Speaker 01: Is that what you're citing here? [00:35:43] Speaker 01: In part, yes, Your Honor. [00:35:44] Speaker 01: In 40? [00:35:45] Speaker 02: Yes, Your Honor. [00:35:47] Speaker 02: The issue again, and then if we look at Mr. Marin's letter, who is the head of the section that governs the determination, after being confronted with this, after a couple of years of going back and forth, he then reaffirms that, you know, using the METO-CORE methodology for obligations, that is, HPSP obligation runs concurrent with the residency obligation. [00:36:09] Speaker 02: So this is the person that is in charge for the Navy of making the interpretation [00:36:14] Speaker 02: and determining his obligation. [00:36:16] Speaker 02: And he comes out very close to what Commander Laughlin was asserting. [00:36:22] Speaker 04: OK, Mr. Montalvo, I think we're out of time. [00:36:24] Speaker 04: Yes, Your Honor. [00:36:25] Speaker 04: Thank you. [00:36:26] Speaker 02: May it please the Court. [00:36:26] Speaker 04: Thank you, Your Honor. [00:36:27] Speaker 03: Happy Holidays.