[00:00:11] Speaker 02:
We have four cases on the calendar this morning.

[00:00:16] Speaker 02:
Two from the claims court, one of which is being submitted on the briefs and won't be argued.

[00:00:24] Speaker 02:
Two from the patent office, patent case and trademark case.

[00:00:31] Speaker 02:
Our first case is from the Court of Federal Claims, Walter Strand, versus the United States, 2016-2450.

[00:00:40] Speaker 02:
After we hear this case, we will assess briefly and return with a slightly modified panel that will be no less distinguished than this one.

[00:00:56] Speaker 02:
So we will hear Mr. Rand case, Mr. Green.

[00:01:02] Speaker 01:
Good morning.

[00:01:04] Speaker 01:
Before I go any further, I want to introduce Lieutenant

[00:01:08] Speaker 01:
Maryam Austin, she's with the Office of the Judge Advocate General for the United States Navy seated with me at Council table.

[00:01:14] Speaker 01:
May it please the Court.

[00:01:16] Speaker 01:
The Secretary determined that based on the undisputed facts in the record and for policy reasons, Mr. Strand was not entitled to be retired honorably as recommended by a panel of the Board for Correction of Naval Records.

[00:01:29] Speaker 04:
Now according to Strickland and other... Can we get right to one of his reasons that there's a long and documented history of domestic violence

[00:01:38] Speaker 04:
an involvement in what's called the FAP program?

[00:01:41] Speaker 04:
Sure.

[00:01:41] Speaker 04:
Where is that borne out by the record?

[00:01:43] Speaker 04:
As far as I can tell, and I know the record, you tried to supplement.

[00:01:46] Speaker 04:
They opposed.

[00:01:47] Speaker 04:
They provided their explanation of what it said.

[00:01:51] Speaker 04:
Frankly, given their explanation of what it said, I don't understand why they opposed.

[00:01:55] Speaker 04:
But as far as I can tell, there are two incidents.

[00:01:59] Speaker 04:
How is that a long history of domestic violence?

[00:02:03] Speaker 01:
Well, respectfully, it's domestic violence issues, which

[00:02:07] Speaker 01:
does not necessarily encompass conviction.

[00:02:09] Speaker 01:
So I just wanted to be clear on that point.

[00:02:11] Speaker 04:
Oh, I understand that.

[00:02:12] Speaker 04:
But at least the tenor of the secretary's decision is that this individual has had a long and sustained history of domestic violence.

[00:02:23] Speaker 04:
And I don't see that in the record.

[00:02:25] Speaker 04:
I see a, what, a 2007 incident, is that right?

[00:02:29] Speaker 04:
And then the shooting incident for which he was removed.

[00:02:32] Speaker 04:
That's correct.

[00:02:34] Speaker 04:
Clearly, those are both very serious, but it seems to be a mischaracterization to call that a long history.

[00:02:42] Speaker 01:
Well, there is other information in those records that suggests that history goes back farther than 2007.

[00:02:50] Speaker 01:
And Mr. Strand's command, as Mr. Strand notes in his brief, would have been aware of those other incidents due to the fact that the command is involved in

[00:03:03] Speaker 01:
the family advocacy program when it pulls in one of the command's service members.

[00:03:09] Speaker 01:
Why weren't they in the administrative department?

[00:03:14] Speaker 01:
In part because the family advocacy program is not there to punish a service member, it's there to persuade the service member to get the help that the Navy believes he or she needs and so

[00:03:30] Speaker 01:
in the absence of a disciplinary action or some sort of counseling entry, the Navy does not routinely log in the service records the service member's involvement in the family advocacy program.

[00:03:43] Speaker 04:
Now, if I may also respond that... Can I ask you then if we conclude that the trial court erred and we send this back and order the court to send it back to the corrections board?

[00:03:57] Speaker 04:
Is there a mechanism for getting that information in the record?

[00:04:02] Speaker 01:
The Corrections Board could certainly access those records, so long as, in accordance with Atkins, they gave... And those FAP records, they're not the service records, but they're some other kind of documentary records.

[00:04:15] Speaker 04:
They don't have to pull in people to testify or anything.

[00:04:18] Speaker 01:
I'm sorry to have interrupted you.

[00:04:19] Speaker 01:
They are maintained in a separate location, in part because of privacy, but also to not

[00:04:26] Speaker 02:
Isn't your point that whether there's a long history or not, isn't the point that there is a history?

[00:04:36] Speaker 02:
Correct.

[00:04:36] Speaker 02:
And so where is the authority here?

[00:04:38] Speaker 02:
Is it in the secretary or in the board, ultimately?

[00:04:42] Speaker 01:
The authority for what?

[00:04:43] Speaker 02:
For correction of naval records.

[00:04:46] Speaker 01:
Well, ultimately, excuse me, the secretary is the ultimate authority.

[00:04:50] Speaker 01:
That's what Strickland holding from this court

[00:04:53] Speaker 01:
tells us, and that's been the practice for many years, before Strickland and after Strickland up to Chevalier is a more recent case where the court affirmed that principle.

[00:05:04] Speaker 01:
And so in this case, the executive director for the board determined that the relief that the panel had recommended may not be appropriate in view of the seriousness of Mr. Strand's felonious misconduct.

[00:05:19] Speaker 01:
and forwarded that recommendation to the secretary to make the ultimate decision in accordance with 10 USC 1552 and the Navy regulations.

[00:05:30] Speaker 01:
But to go back to your question, Your Honor.

[00:05:31] Speaker 00:
Just to clarify, I'm sorry, the secretary owed no deference to the board in making his recommendation.

[00:05:38] Speaker 00:
Do I understand that correctly?

[00:05:40] Speaker 01:
The secretary, according to Strickland, the secretary is entitled to reject a board recommendation that in his estimation is not supported by the record before the board.

[00:05:50] Speaker 00:
And I want to ask you one other question about the long-standing history.

[00:05:52] Speaker 00:
Did that come from the statement of the CO?

[00:05:56] Speaker 00:
Do I remember that correctly?

[00:05:57] Speaker 00:
Yes, ma'am.

[00:05:59] Speaker 00:
And was that statement disputed or not disputed on the record?

[00:06:04] Speaker 01:
It was not disputed.

[00:06:05] Speaker 01:
In fact, the fact that it was not disputed is reflected in the decision by the panel of the BCNR, because they recited that same fact after reviewing the entire record.

[00:06:20] Speaker 01:
did not indicate that there was any reason to doubt the veracity of that fact.

[00:06:25] Speaker 01:
Moreover, there's nothing in the record that indicates that Mr. Strand had petitioned for BCNR to review the accuracy of that statement and perhaps have it stricken from his records or modified in some other way.

[00:06:36] Speaker 01:
And so from the secretary's perspective, he was entitled to take that statement and face value.

[00:06:44] Speaker 01:
And I haven't even mentioned that there was also this presumption of regularity and this presumption that military officers

[00:06:50] Speaker 01:
such as Mr. Strand's former commanding officer, discharged their duties lawfully and in good faith.

[00:06:54] Speaker 01:
That also goes back 70 years.

[00:06:58] Speaker 04:
But I get all that.

[00:07:00] Speaker 04:
Was he represented when he went through this BCNR process, or was he... It was my understanding that he only got counsel after the Court of Federal Claims appointed him pro bono counsel.

[00:07:10] Speaker 04:
Your understanding is correct.

[00:07:12] Speaker 04:
At least in their papers, they do seem to dispute that there was a long-standing history.

[00:07:19] Speaker 01:
As we read their papers, this is sort of a post hoc argument.

[00:07:24] Speaker 01:
They now dispute that there was a longstanding history.

[00:07:27] Speaker 01:
But there's nothing in the record that disputes that history.

[00:07:31] Speaker 04:
And in fact, there's nothing in the record that shows that history either, except this statement, which doesn't point to any documentary evidence.

[00:07:38] Speaker 01:
Well, I would respectfully disagree with that, Your Honor.

[00:07:40] Speaker 01:
There's a fitness report that we have inferred and has not been disputed that refers to

[00:07:48] Speaker 01:
It's a negative fitness report that stems from this 2007 stalking incident.

[00:07:53] Speaker 04:
No, no, I get that.

[00:07:54] Speaker 04:
I mean, certainly everybody agrees about the 2007 incident and then the shooting incident.

[00:07:59] Speaker 04:
And if you consider two incidents a long standing history, then maybe you're right, but you're alluding to other incidents of domestic violence and saying it's undisputed.

[00:08:07] Speaker 04:
And I don't see how it is, at least after he got counsel.

[00:08:11] Speaker 04:
I mean, they specifically wrote in one of their briefs that they dispute that.

[00:08:15] Speaker 04:
And, you know, there may be a disagreement about characterization or the facts or the like, but I assume they're not taking sanctionable positions in briefs before the Court of Federal Plains.

[00:08:26] Speaker 01:
Well, I mean, I apologize if I was unclear.

[00:08:31] Speaker 01:
From the Secretary's perspective, the statement was undisputed, and it wasn't until we got to court.

[00:08:36] Speaker 04:
I get that, but when it gets to court, the court gets to test that conclusion for substantial evidence, and it doesn't have to rely

[00:08:44] Speaker 04:
on a conclusory statement by the commanding officer, it can demand some kind of substantial evidence to support that.

[00:08:54] Speaker 04:
And you can't fall back on he didn't dispute that at the time.

[00:08:59] Speaker 01:
Well, I would respectfully say, Your Honor, that the burden here was on Mr. Strand to come forward with some evidence that would show that that statement was incorrect.

[00:09:09] Speaker 01:
Now, the evidence that Mr. Strand has pointed to in his brief simply doesn't do that.

[00:09:14] Speaker 01:
That evidence shows that there were no non-judicial punishments or other disciplinary actions, which we've touched on already.

[00:09:22] Speaker 01:
That evidence includes letters from Mr. Strand's mother and other persons who there's no reason to believe that they were competent to speak about Mr. Strand's history beyond the event that ultimately led to his discharge.

[00:09:39] Speaker 01:
And moreover, the BCNR considered all of that information

[00:09:44] Speaker 01:
did not find that it had controverted that statement.

[00:09:47] Speaker 04:
Well, it seems to me that you're right he has the burden.

[00:09:51] Speaker 04:
But when he comes back and says there's actually not a longstanding history, it's only two incidents, and points to the stuff in the record, and that's all I see, are you saying he has to disprove all of this other stuff that isn't part of the record?

[00:10:10] Speaker 01:
He has to come forward with evidence that would cast some doubt on that statement.

[00:10:13] Speaker 04:
Well, why isn't his pointing to the evidence and saying, look, here are two incidents late in my career, occasioned by basically the same set of unfortunate circumstances.

[00:10:26] Speaker 04:
That doesn't demonstrate a long history.

[00:10:28] Speaker 04:
Doesn't that at least put it into dispute and then require some kind of further rebuttal from you?

[00:10:37] Speaker 01:
Well, we attempted to provide everybody.

[00:10:39] Speaker 01:
I know, but that's the problem here.

[00:10:41] Speaker 04:
I mean, it baffles me why, unless it's just going to actually prove your point, why this isn't in the record and why the trial court didn't allow it.

[00:10:52] Speaker 04:
I mean, it does seem to me that the record is kind of thin on this point, which could have been solved by letting this stuff in the record.

[00:11:02] Speaker 04:
Although maybe the answer is if it wasn't before, the correction before, then it needs to go back

[00:11:07] Speaker 04:
to them to look at, too.

[00:11:09] Speaker 01:
Certainly, Your Honor.

[00:11:10] Speaker 01:
I would also point out, and we make this point, I believe it's in our reply brief, that this issue of the domestic violence is, I don't want to characterize it as a distraction, but what I mean is, or what I'm trying to say is, the Secretary really didn't mean to rely on that in order to reject the recommendation of the board.

[00:11:32] Speaker 01:
Because the Secretary had

[00:11:34] Speaker 01:
available to him the undisputed facts of Mr. Strand's shooting incident, that conviction, and the policy explanation provided to him.

[00:11:44] Speaker 04:
Absolutely, but he did rely on it.

[00:11:46] Speaker 04:
And we have no way of knowing whether the shooting incident alone would have been sufficient for him to overturn the Board of Corrections decision or whether it was the shooting in combination with this long history of domestic violence.

[00:12:00] Speaker 01:
On that point, Your Honor, I would just point out that when the executive director sent this decision up to the secretary, he specifically focused in on the felonious misconduct and not necessarily this other incident.

[00:12:16] Speaker 01:
I had reserved five minutes for rebuttal, and I see I'm eating into my rebuttal time.

[00:12:22] Speaker 01:
If the court doesn't have any other questions, I'll save this for you.

[00:12:28] Speaker 02:
Thank you, Mr. Green.

[00:12:29] Speaker 01:
Thank you.

[00:12:30] Speaker 02:
Mr. Hanback.

[00:12:43] Speaker 03:
Good morning, Your Honors.

[00:12:43] Speaker 03:
May it please the Court, Lucas Hanback on behalf of Walter Strand.

[00:12:46] Speaker 03:
With me today is Jeff Shio, also on behalf of Mr. Strand.

[00:12:50] Speaker 03:
Your honors, we've talked already about one of the two reasons here, the alleged long-standing history of family advocacy program involvement in domestic violence.

[00:12:58] Speaker 03:
As Judge Hughes has observed, there's nothing in the record that supports that.

[00:13:01] Speaker 03:
And all of the fitness reports in the record show the opposite.

[00:13:04] Speaker 02:
But the shooting is pretty clear, right?

[00:13:07] Speaker 03:
Well, but Mr. Strand has never denied the shooting.

[00:13:09] Speaker 02:
And the fact that he didn't deny it isn't the point.

[00:13:13] Speaker 02:
The point is the secretary was entitled to make a judgment.

[00:13:17] Speaker 02:
And there was clearly

[00:13:20] Speaker 02:
felonious incident?

[00:13:22] Speaker 03:
Well, respectfully, Your Honor, the courts have for now 60 years held that the Secretary is not entitled to disregard the Board's decision where it's supported by the evidence.

[00:13:33] Speaker 03:
And I direct Your Honor's attention to page 088 of the appendix, which is the Board's decision where it points to this exact same statement by Captain Starlin.

[00:13:42] Speaker 03:
It doesn't use quotation marks, but it used the exact same language.

[00:13:46] Speaker 03:
So the Board already considered

[00:13:48] Speaker 03:
this exact same contention, and they granted Mr. Strand relief anyway.

[00:13:52] Speaker 03:
For 70 years, the courts have held that the Secretary can't just disagree with his board and overturn it.

[00:13:57] Speaker 03:
He has to act through them.

[00:13:58] Speaker 03:
And here, if we look at his reasoning, he says, I disagree with the board's reasoning, and he points to the same thing that they've already considered and nothing else.

[00:14:06] Speaker 03:
That's not sufficient.

[00:14:08] Speaker 00:
That's — Wait, wait.

[00:14:09] Speaker 00:
You're saying that the board found differently on the facts regarding the longstanding domestic violence?

[00:14:16] Speaker 00:
Is that what I hear you saying?

[00:14:18] Speaker 03:
I'm saying that, Your Honor, it's been admitted there's nothing in the record that goes to this statement except the statement itself.

[00:14:24] Speaker 03:
and the board has already considered that statement, whatever it encompasses.

[00:14:28] Speaker 00:
Okay, but they considered it, but they didn't say that it's wrong, or did they?

[00:14:33] Speaker 00:
Tell me on page 88 where that is.

[00:14:35] Speaker 03:
Well, so if you look at page... It's paragraph D. I'm sorry, paragraph D, Your Honor, and it starts about halfway through.

[00:14:41] Speaker 03:
It says, his commanding officer recommended separation under other than honorable conditions, in part, that he had a long-standing history of family advocacy program involvement in domestic violence issues.

[00:14:52] Speaker 03:
That is

[00:14:53] Speaker 03:
Mr. Captain Starling's language.

[00:14:56] Speaker 03:
So whatever that statement means, it's been considered by the board and factored into the decision here.

[00:15:01] Speaker 00:
Sure, but that doesn't mean the board said it was incorrect.

[00:15:04] Speaker 00:
The board considered all the facts and came up with a recommendation for the secretary.

[00:15:10] Speaker 00:
And then the secretary considered all the facts and said, I have a different view.

[00:15:15] Speaker 00:
And I don't see where it sounds like you were just saying that the secretary found facts that were different from the board.

[00:15:22] Speaker 00:
And I don't see that.

[00:15:23] Speaker 03:
No, Your Honor, the Secretary didn't find facts different than the Board, and that's the important part here.

[00:15:29] Speaker 03:
The cases for 60 years now have said that where you're looking at the same facts and the Board's interpretation is reasonable and supported by the facts, the Secretary can't just overrule the Board's decision.

[00:15:40] Speaker 03:
That stretches all.

[00:15:41] Speaker 04:
If the Secretary finds the Board's decision unreasonable, he certainly can, can't he?

[00:15:46] Speaker 04:
Well, he might.

[00:15:48] Speaker 04:
That's what he did here.

[00:15:49] Speaker 04:
He said, I disagree.

[00:15:51] Speaker 04:
with the reasonableness of this recommendation.

[00:15:54] Speaker 04:
And I would not grant the relief.

[00:15:57] Speaker 03:
Well, I don't think that he doesn't use the term he disagrees with the reasonableness.

[00:16:01] Speaker 04:
Well, I mean, that's the obvious conclusion to draw.

[00:16:04] Speaker 04:
I mean, he's not disagreeing with the facts.

[00:16:07] Speaker 04:
He disagrees with the board.

[00:16:08] Speaker 04:
Are you really saying that the secretary can only overturn a decision if he concludes that there's different facts than the board found, rather than disagree with their judgment?

[00:16:21] Speaker 03:
I think that that's a fair reading of the cases for 60 years now, Your Honor.

[00:16:25] Speaker 03:
What about Strickland?

[00:16:26] Speaker 03:
Well, in Strickland is a various illustrative example.

[00:16:30] Speaker 03:
And this also goes to the Navy's other articulated reason about core values, which I'd like to get into in a moment.

[00:16:36] Speaker 03:
Strickland was a Navy petty officer who was convicted of a violent crime, a sex crime against a child.

[00:16:42] Speaker 03:
He was discharged just prior to his 20-year retirement.

[00:16:47] Speaker 03:
He pursued his remedies up through the boards.

[00:16:49] Speaker 03:
and was overturned by the AGC and ultimately prevailed and was retired.

[00:16:54] Speaker 03:
And so if you're going to say that you disagree with the board's reasoning, you have to give more than one sentence that the board already considered and found didn't warrant denying Mr. Strand relief.

[00:17:06] Speaker 03:
And turning to the core values here, it's important to understand why the board exercises its powers.

[00:17:12] Speaker 03:
It corrects injustices.

[00:17:14] Speaker 03:
And what's happened here is that Mr. Strand admitted that what he did was wrong.

[00:17:19] Speaker 03:
He had one mistake at the end of a 19-year career where everything in the record is stellar.

[00:17:25] Speaker 03:
He's a top performer, top marks.

[00:17:27] Speaker 03:
He gets awards for good conduct, awards for his meritorious performance.

[00:17:34] Speaker 03:
He makes one mistake.

[00:17:36] Speaker 02:
But shouldn't the courts be managing the personnel of the Navy?

[00:17:40] Speaker 03:
Well, Your Honor.

[00:17:41] Speaker 02:
Shouldn't that be the job of the Secretary?

[00:17:43] Speaker 03:
It is the job of the Secretary, Your Honor.

[00:17:46] Speaker 03:
The boards had the power to direct certain personnel actions.

[00:17:50] Speaker 03:
And for 70 years, that's been the law.

[00:17:52] Speaker 02:
Subject to the approval of the secretary.

[00:17:54] Speaker 03:
Well, not subject to his absolute discretion, Your Honor.

[00:17:57] Speaker 03:
Subject to the test under the Administrative Procedure Act.

[00:18:00] Speaker 00:
What about where he said specifically, granting the relief recommended by the board is wholly inconsistent with Navy Corps values and practice in similar cases involving discharge for criminal conduct.

[00:18:11] Speaker 00:
Isn't that, in essence, saying that the recommendation is unreasonable?

[00:18:15] Speaker 03:
No, Your Honor, and here's why.

[00:18:18] Speaker 03:
Look at what he says.

[00:18:19] Speaker 03:
Granting relief recommended by the board is wholly inconsistent with Navy Corps values.

[00:18:25] Speaker 03:
What's inconsistent with honor, courage, and commitment about the idea of redemption, about the idea of paying penance for what you've done?

[00:18:33] Speaker 00:
I hear what you're saying, but I think that kind of thing of looking at the conduct and determining whether it's consistent, whether somebody who was convicted for six years and served three years in prison

[00:18:45] Speaker 00:
Whether that is consistent with Navy Corps values and whether you're going to focus on penance versus the crime to begin with, that's not something for the court to judge.

[00:18:56] Speaker 03:
Well, Your Honor, it is for the board to judge, and the board judged it and found he merited relief.

[00:19:00] Speaker 04:
But it's also for the Secretary to judge.

[00:19:02] Speaker 04:
And I think you alluded to the fact that he can do that as long as it's consistent and supported on our review by the APA principles.

[00:19:12] Speaker 04:
And so we're not going to second guess it if his decision is supported by substantial evidence.

[00:19:17] Speaker 04:
Now I do think you have an argument that on the domestic violence point that it's pretty thin, although I wonder if we do order it sent back that it's going to come out the same way, because what's going to come out is that even though there may not be incident reports in the service records, there is a long history of paper of him participating in the

[00:19:40] Speaker 04:
FAPRE program itself.

[00:19:42] Speaker 04:
And if that's the case, then it seems like a waste of time.

[00:19:46] Speaker 03:
So there are two questions that you've just asked, Your Honor.

[00:19:49] Speaker 03:
The first is, is it going to turn out the same way?

[00:19:51] Speaker 03:
The Navy already told you in their docking statement it is.

[00:19:53] Speaker 03:
And that's why this request for remand shouldn't be honored.

[00:19:56] Speaker 03:
It's just an attempt to evade judicial review after they've stood on the record and said it's sufficient.

[00:20:01] Speaker 03:
But as to what's in those files,

[00:20:04] Speaker 03:
If you read the proceedings below... Do you know what's in those files?

[00:20:07] Speaker 03:
We do, Your Honor, because the Navy improperly injected them into the proceedings below after they were stricken, and we had to litigate them on the merits to protect our client.

[00:20:15] Speaker 03:
That first incident that Your Honor talked about and that Mr. Green has referred to about stalking, what happened in that incident, what's in those files, is that after Mr. Strand returned from his last combat deployment supporting operations in Afghanistan, he found his wife had left him unexpectedly, taken his children, cleaned out his bank accounts, and wasn't talking to him.

[00:20:34] Speaker 03:
wouldn't let him see his children for months.

[00:20:36] Speaker 03:
He found out where she was living, went to her apartment, and confronted her on the sidewalk.

[00:20:40] Speaker 03:
She had three men beat him up, throw him off the premises, and she called police on him and reported him for stalking.

[00:20:46] Speaker 04:
No, I've read your papers.

[00:20:47] Speaker 04:
I know what the facts are there.

[00:20:49] Speaker 04:
But you're asking us to overturn policy judgments that seem like the Secretary's entitled to make.

[00:21:01] Speaker 03:
Well, the Secretary's not entitled to make these policy judgments, Your Honor.

[00:21:04] Speaker 04:
no substantial evidence we we've talked about that he sees pointed he's entitled to make them if there's substantial evidence that support this argument you're going between two things i mean it seems to me that you're arguing almost some kind of rule that the secretaries by the corrections board absent some change in facts or some kind of explicit proclamation that it was unreasonable but i'd still see that there's anything it's works well the case law says that

[00:21:34] Speaker 03:
where the board has reached a reasonable conclusion, the secretary doesn't have discretion to just overrule that.

[00:21:41] Speaker 04:
No, but if he finds that it's not an appropriate conclusion and his decision is supported by substantial evidence, then he can't, can he?

[00:21:49] Speaker 03:
If there was substantial evidence.

[00:21:50] Speaker 04:
That's what we're hearing.

[00:21:52] Speaker 04:
No, but you see, you're going back and forth between two things.

[00:21:54] Speaker 04:
You're going back and forth between, for 70 years, we've said the secretary can't overrule the correctional board.

[00:22:01] Speaker 04:
That's just not right.

[00:22:02] Speaker 04:
What the secretary can't do

[00:22:04] Speaker 04:
is overrule the Corrections Board without substantial evidence.

[00:22:07] Speaker 04:
You're right on that, but you leave out that part when you talk about the 70 years.

[00:22:12] Speaker 04:
So we're talking about substantial evidence here.

[00:22:15] Speaker 04:
And if we did agree with you that there's a lack of substantial evidence, then we can either affirm or we can vacate and remand for the Secretary to actually provide more substantial evidence.

[00:22:26] Speaker 03:
Well, I think that you could affirm.

[00:22:28] Speaker 03:
I don't think a vacate and remain is appropriate because there is no substantial evidence.

[00:22:33] Speaker 03:
And if there was, the secretary would have provided it.

[00:22:36] Speaker 03:
It's not there.

[00:22:37] Speaker 04:
And so it seems like there is a dispute between the two of you, at least on the domestic violence front about whether there is evidence or not.

[00:22:44] Speaker 03:
Sure, Your Honor.

[00:22:45] Speaker 03:
But let's remember there's also another articulated reason on this piece of paper that we have to consider here.

[00:22:50] Speaker 03:
And we've talked about core values.

[00:22:52] Speaker 03:
If you read the Navy's papers, one of their principal contentions is that

[00:22:55] Speaker 03:
Whenever they invoke the core values, and here they've done it very briefly.

[00:22:59] Speaker 03:
They've basically said our core values are on a core urgent commitment, and this is inconsistent with them.

[00:23:05] Speaker 03:
They say that that is at the absolute discretion of the secretary to determine the standard.

[00:23:10] Speaker 02:
Do you want to address your cross appeal?

[00:23:12] Speaker 03:
I'm sorry, Your Honor.

[00:23:13] Speaker 02:
Do you want to address your cross appeal?

[00:23:15] Speaker 03:
I would, Your Honor, but I'm prepared to only take about a minute to do that.

[00:23:20] Speaker 02:
It's your time.

[00:23:21] Speaker 03:
Sure, Your Honor.

[00:23:22] Speaker 03:
With respect to the core values,

[00:23:25] Speaker 03:
remember here, the Navy is also bound by its core values.

[00:23:29] Speaker 03:
Mr. Strand has now for almost a decade been out, you know, in the civilian world trying to make amends.

[00:23:35] Speaker 03:
He set himself right with the state, with his victims, with his family.

[00:23:38] Speaker 03:
This is a guy who is living on a couch so that every spare cent he earns can go to support his children, one of whom has a serious medical condition.

[00:23:47] Speaker 03:
And what prevents him from getting gainful employment based on the training and expertise he got while he was in the service

[00:23:54] Speaker 03:
is one black mark in his record.

[00:23:56] Speaker 03:
What we want people who get in the criminal justice system to do is to rehabilitate themselves and go back to productive civilian life.

[00:24:03] Speaker 03:
And this one black mark is what's preventing it.

[00:24:06] Speaker 02:
And the Navy is saying... You're arguing to us like we're a jury.

[00:24:10] Speaker 02:
The issue here is the legal relationship between the secretary and the board.

[00:24:17] Speaker 03:
Yes, I understand, Your Honor.

[00:24:18] Speaker 03:
But the legal relationship between the secretary and the board hinges on this

[00:24:23] Speaker 03:
invocation of core values.

[00:24:26] Speaker 03:
What the Navy hasn't explained and what the cases say that he has to do when he points to a policy reason like this is explain it.

[00:24:33] Speaker 03:
And there's no explanation how denying Mr. Strand relief so that he can move on with his life is consistent with Navy core values.

[00:24:42] Speaker 03:
This is a guy who made one mistake.

[00:24:44] Speaker 03:
Why is it consistent with honor, courage, and commitment to say that for the rest of his life, he should have a hard time putting food on his table?

[00:24:53] Speaker 03:
That's not consistent with the Navy's core values.

[00:24:55] Speaker 03:
And Your Honor, to turn to your point about the counterclaim that the government filed, this is a pretty straightforward application of the Court of Federal Claims jurisdictional statute.

[00:25:05] Speaker 03:
The statute is 28 USC 2501.

[00:25:08] Speaker 03:
It establishes a strict six year limitation period for claims that are filed in that court.

[00:25:14] Speaker 03:
This court has held that that's an independent jurisdictional requirement in cases like Rana and Rocky Mountain Helium.

[00:25:20] Speaker 03:
Those are cited in our papers.

[00:25:22] Speaker 03:
And here, at the absolute latest, the government's counterclaim started to run on June 26, 2009, because as of that date, all the events that fixed Mr. Strand's liability to the government had occurred.

[00:25:36] Speaker 02:
Sotomayor.

[00:25:38] Speaker 02:
Doesn't 2415F work against you?

[00:25:42] Speaker 03:
No, it doesn't, Your Honor.

[00:25:43] Speaker 03:
I'm sure the government will give you its views on that in a moment.

[00:25:46] Speaker 03:
But if you look at 2415, they've cited two tolling provisions.

[00:25:50] Speaker 03:
The first is subsection F.

[00:25:52] Speaker 03:
It starts, the provisions of this section shall not prevent the assertion.

[00:25:57] Speaker 03:
It's referring to 2415 itself.

[00:26:00] Speaker 03:
It's a tolling provision for the limitations in subsections A, B, and C. Similarly, subsection D, which is another tolling provision that they've attempted to invoke, says that, and except as otherwise provided by Congress, Congress has otherwise provided that the court of federal claims cannot hear cases that accrued more than six years prior.

[00:26:22] Speaker 03:
And so this is just a fairly straightforward application of a six-year statute of limitations.

[00:26:26] Speaker 02:
You're saying this F provision isn't relevant to 2501?

[00:26:31] Speaker 03:
That is what I'm saying, Your Honor, because it applies the provisions of this section.

[00:26:36] Speaker 03:
That's when subsection F applies.

[00:26:38] Speaker 03:
And this section is referring to section 2415 itself, not to 2501.

[00:26:44] Speaker 03:
And I'd say I'm eating into my rebuttal time, Your Honor.

[00:26:47] Speaker 03:
So unless there are further questions, I'll take them.

[00:26:50] Speaker 02:
You want to say before me?

[00:26:54] Speaker 02:
Mr. Green has about three and a half minutes.

[00:27:02] Speaker 01:
Just a couple of quick points here, Your Honors.

[00:27:06] Speaker 01:
And I think the Court's picked up on this, but I just want to be sure that we articulate it as well.

[00:27:11] Speaker 01:
The 60 years worth of precedent that Mr. Strand's attorney refers to that allegedly or purportedly holds that the Secretary can't just disregard a

[00:27:21] Speaker 01:
decision by the Corrections Board refers to the cases in proper, Weiss, Herzog, and those cases.

[00:27:28] Speaker 01:
And in each of those cases, the Secretary, the courts found that the Secretary had violated Section 1552 because he'd involved a military advisor in the process of correcting records.

[00:27:41] Speaker 01:
And in each of those cases, all of the evidence favored the recommendation provided by the Corrections Board.

[00:27:48] Speaker 01:
And so that's not the

[00:27:50] Speaker 01:
circumstance we have here.

[00:27:52] Speaker 01:
At the very least, we have evidence on both sides.

[00:27:55] Speaker 01:
We have Mr. Strand's post-discharge conduct and his satisfactory service, but we also have the other evidence that the Secretary relied on.

[00:28:02] Speaker 01:
And so it's not the circumstance where all the evidence would favor the recommendation.

[00:28:07] Speaker 01:
In Strickland, in referring to Strickland, Mr. Strand's counsel glosses over the distinction that the issue in Strickland was a legal error.

[00:28:18] Speaker 01:
Discharge Board and the BCNR and the Secretary all had committed a legal error in applying the incorrect regulation to Mr. Strickland's discharge.

[00:28:29] Speaker 01:
There's no allegation of legal error here.

[00:28:33] Speaker 01:
Mr. Strand requested from the Board equitable relief in the form of constructive credit toward retirement and an honorable retirement.

[00:28:42] Speaker 01:
He didn't identify any legal error that is analogous to the legal error that's at issue in Strickland.

[00:28:48] Speaker 01:
The facts of Strickland and the facts of this case don't line up.

[00:28:51] Speaker 04:
Can you just take a few minutes?

[00:28:52] Speaker 04:
I think we get you on Strickland.

[00:28:53] Speaker 04:
Can you take a minute and address the cross appeal?

[00:28:57] Speaker 04:
Why isn't the claim time barred?

[00:28:58] Speaker 04:
Is it because they included in their complaint a cause of action to seek that money back?

[00:29:07] Speaker 02:
I'm sorry.

[00:29:10] Speaker 04:
Why isn't your claim for refund time barred?

[00:29:14] Speaker 04:
Is it because it's

[00:29:15] Speaker 04:
a counterclaim to their claim to get the money back or to not have to repay it?

[00:29:20] Speaker 01:
Two reasons, Your Honor.

[00:29:22] Speaker 01:
One is the reason you just described.

[00:29:23] Speaker 01:
It's the mirror, basically the mirror image of one of their causes of action.

[00:29:26] Speaker 04:
What if they hadn't included that money claim in their complaint?

[00:29:31] Speaker 01:
It would have been barred by 2415 more than likely.

[00:29:34] Speaker 01:
Okay.

[00:29:35] Speaker 01:
And the second reason is that 2501... And you would have been left with

[00:29:42] Speaker 04:
administrative attempts to recoup that money you couldn't have gotten the court to order it?

[00:29:48] Speaker 01:
Perhaps, or 2415D or F, I'm sorry, provides that a untimely permissive counterclaim can be applied as a set-off.

[00:29:58] Speaker 01:
The second reason why Mr. Strand is incorrect on this point is that 2501 provides for the statute of limitations for plaintiffs to file claims in the court of federal claims.

[00:30:12] Speaker 01:
The government is never the plaintiff in the Court of Federal Claims.

[00:30:15] Speaker 01:
2415 refers to causes of action brought by the government.

[00:30:21] Speaker 01:
So on the face of the statutes, 2501 doesn't apply.

[00:30:24] Speaker 01:
I would also like to point the Court to three cases in which the Court has analyzed the timeliness of a compulsory government counterclaim and found that under 2415F,

[00:30:38] Speaker 01:
that there was jurisdiction even though the counterclaim was filed six years after it accrued.

[00:30:43] Speaker 01:
Those cases are Southern California Edison versus United States, 226 F-1349, United States versus Hanover Insurance, 82 F-1052, and Sea Land Services versus United States, 493 F-1357.

[00:31:00] Speaker 01:
And in none of those cases did the court analyze this jurisdiction question

[00:31:05] Speaker 01:
under 2501.

[00:31:06] Speaker 01:
They all refer to 2415.

[00:31:10] Speaker 01:
And so that indicates that the statute of limitations provided in 2501 did not apply to a government county claim filed in the Court of Federal Claims.

[00:31:19] Speaker 02:
Thank you, Mr. Green.

[00:31:20] Speaker 02:
Thank you.

[00:31:22] Speaker 02:
Just a hand back.

[00:31:23] Speaker 02:
We'll give you two minutes for your rebuttal on the county claim.

[00:31:31] Speaker 03:
I appreciate that, Your Honor.

[00:31:33] Speaker 03:
May it please the Court, Your Honors, first, quickly, 2501 says, every claim of which the United States Court of Federal Claims has jurisdiction shall be barred.

[00:31:42] Speaker 03:
It doesn't apply only to plaintiff's claims.

[00:31:44] Speaker 03:
It applies to every claim.

[00:31:46] Speaker 03:
Now, I'd also like to briefly address Strickland.

[00:31:49] Speaker 03:
Here's the test from Strickland.

[00:31:50] Speaker 03:
Other circuits, too, have held that the Secretary is authorized to reject a board recommendation so long as he... Is this the cross-appeal?

[00:31:58] Speaker 02:
counterclaim?

[00:32:00] Speaker 03:
No, Your Honor.

[00:32:00] Speaker 02:
I don't think you have the last word on the main appeal.

[00:32:03] Speaker 03:
Okay.

[00:32:04] Speaker 03:
Fair enough, Your Honor.

[00:32:05] Speaker 04:
I don't want to eat up your time, but I think at least I have the cross appeal and I just, you handle this below pro bono and you're handling it now.

[00:32:15] Speaker 04:
I just wanted to say I appreciate it.

[00:32:17] Speaker 04:
I think the government and the courts are well served when we have adequate representation on both sides and I think you've done an excellent job here.

[00:32:25] Speaker 03:
Well, thank you, Your Honor.

[00:32:26] Speaker 03:
We take it seriously.

[00:32:27] Speaker 03:
And as we pointed out, Your Honor, you asked questions about the internal tolling provisions of 2415.

[00:32:34] Speaker 03:
All we would point you to is the language of the text itself.

[00:32:37] Speaker 03:
The analysis starts with the language of the statutory text, and that text says that those provisions apply internally to 2415.

[00:32:44] Speaker 02:
But how about the second sentence that says, if it's time barred, it may be asserted only by way of offset.

[00:32:52] Speaker 02:
Isn't this an offset?

[00:32:53] Speaker 03:
No, Your Honor, because the government has never pled an offset.

[00:32:57] Speaker 03:
Offsets are an affirmative defense that are waived if they are not raised.

[00:33:01] Speaker 03:
And the government never pled an offset in the court below, so it is not entitled to assert an offset now.

[00:33:06] Speaker 03:
The government did make a reference to that, I believe, in a footnote in one of their filings.

[00:33:10] Speaker 03:
And to the extent that the government intends to take an offset here or attempt to, that's improper, and this court should rule as a matter of law that that's been waived.

[00:33:19] Speaker 03:
I see my time is about up, Your Honor.

[00:33:20] Speaker 02:
Thank you, Mr. Hancock.

[00:33:21] Speaker 02:
We'll take the case under advisement.

[00:33:23] Speaker 03:
Thank you, Your Honor.