[00:00:00] Speaker 04: For argument to 172570, Cromley versus New York State. [00:01:13] Speaker 04: We're ready, Mr. Ennick, whenever you are. [00:01:15] Speaker 00: Thank you. [00:01:19] Speaker 04: This, too, involves some medical issues, but it's a completely different context, right? [00:01:24] Speaker 00: I certainly hope so, because I was rather lost, and certainly a tough act to follow as well. [00:01:35] Speaker 04: So why don't you just, it would be helpful to me if you could just spend really a few minutes just talking about the background of the facts here. [00:01:41] Speaker 04: We've read the briefs and we understand them. [00:01:43] Speaker 04: It would be nice to put this in context. [00:01:44] Speaker 04: What happened? [00:01:45] Speaker 04: Thank you very much. [00:01:46] Speaker 00: Good morning and may it please the court. [00:01:48] Speaker 00: As your honors are aware, my name is Matthew Ed and I represent the Appellant in this case, Matthew Crumley. [00:01:54] Speaker 00: Mr. Crumley is also present in court today with me. [00:02:00] Speaker 00: As your honors are aware in this case, [00:02:05] Speaker 00: If I cannot just start at the end of the case, which is Mr. Crumley was discharged from the United States Air Force following a reduction of force force. [00:02:14] Speaker 00: We contend that that discharge is a direct result of what happened months earlier, which was that Mr. Crumley was disciplined for reporting a safety concern to senior Air Force leadership. [00:02:32] Speaker 00: He did so by way of an email which was sent two days after he fell into a grave while performing burial honor guard duties for a deceased member of the United States Air Force. [00:02:46] Speaker 04: I can't place my finger on the email right now, but my recollection is it was left less arguably a call to there's a safety concern you have to do something about, and more about, hey, I may be interested in suing the city of Cambridge. [00:03:01] Speaker 04: Who's going to help me file my lawsuit? [00:03:04] Speaker 04: So isn't that a fear characterization? [00:03:06] Speaker 00: I don't think so with respect, Your Honor. [00:03:10] Speaker 00: It's at appendix 273, page 91 of the sports record. [00:03:15] Speaker 00: And I apologize for the copy. [00:03:18] Speaker 00: I'm not sure if the one that you have has the same line that I do. [00:03:22] Speaker 00: But in any event, what he's done is he's given a situation report to both his immediate commanders as well as senior Air Force commanders. [00:03:31] Speaker 00: I would note also that included in that email are the United States Air Force safety program. [00:03:40] Speaker 00: If you direct your attention, if I may, to further in that email, what he states here is, and the entire part of the email goes through a description of what happened and the nature of his injuries. [00:03:54] Speaker 00: And then if you go to page 94 of the record, what he says is, request counsel and advice to address this matter, and potentially Air Force safety, DOD general counsel slash safety, state of Massachusetts labor slash work safety, city of Cambridge law department, public works. [00:04:09] Speaker 00: city manager mayor's office and OSHA Department of Labor support to address this very serious incident that has caused great pain to me. [00:04:17] Speaker 00: He also and therefore his team members. [00:04:20] Speaker 00: So this is one of those situations where we're dealing with a real life incident here. [00:04:24] Speaker 00: We're not dealing with a carefully crafted letter from council [00:04:28] Speaker 00: addressing various statutory provisions. [00:04:31] Speaker 04: One of the suggestions here though is not exactly what he said but who he sent it to. [00:04:36] Speaker 04: Why was it necessary? [00:04:39] Speaker 04: I'm not a member of the military but I think we all understand chain of command is really important and part of the rub against your client was that he didn't address this with his immediate supervisors, that he went straight to the top and that [00:04:53] Speaker 04: appears to be something one does not like one to do when they're in the military. [00:04:56] Speaker 04: So what's the difference with that? [00:04:58] Speaker 04: I mean, why could he have not reported this of the normal chain of command? [00:05:02] Speaker 00: I do agree with you, and as a former member of the armed services, you're absolutely correct that the military doesn't [00:05:08] Speaker 00: generally like people jumping the chain of command. [00:05:10] Speaker 00: But that's part of why Congress enacted and why there's a law, the Military Whistleblower Protection Act, which allows service members to essentially do just that, which is to jump the chain of command where there's an issue that they are concerned about and they want to report it above their immediate chain of command. [00:05:27] Speaker 00: Come in. [00:05:28] Speaker 00: Mr. Crumley. [00:05:28] Speaker 04: Really? [00:05:28] Speaker 04: I mean, it didn't, if he didn't get any satisfaction at the immediate level. [00:05:33] Speaker 04: So that clearly he would be justified in saying, I didn't get satisfaction from my people, so I was forced to move up the chain. [00:05:40] Speaker 04: But in this instance, there was no such intermediate action, right? [00:05:43] Speaker 00: I would submit to the court, Your Honor. [00:05:44] Speaker 00: Am I right about that? [00:05:45] Speaker 00: You are right about that, Your Honor. [00:05:46] Speaker 00: And I would submit to the court, there's absolutely no requirement that you first direct [00:05:51] Speaker 00: this safety concern, this protected communication that you first directed to your immediate supervisor and only then, when unsatisfied, go above him. [00:06:01] Speaker 00: I'm not aware of any such requirement in Air Force regulation or law that would require a soldier, excuse me, I was in the Army, an airman to do such a thing. [00:06:15] Speaker 00: And I would also point out to your honor [00:06:20] Speaker 00: The Air Force has consistently maintained, we're not disciplining Major Crumley for that email that he sent. [00:06:27] Speaker 00: We're disciplining Major Crumley because he was allegedly rude to members of the 66 ABG Judge Advocate's Office. [00:06:38] Speaker 00: That's a gross overstatement by the government in this case, Your Honor. [00:06:44] Speaker 01: Isn't one of the letters in response, I don't remember the exact date, the knowledge of the inappropriateness of at least the tone of voice on November 22nd at the JAG office? [00:07:02] Speaker 00: No. [00:07:02] Speaker 00: I would respectfully disagree with Your Honor's interpretation of that, and I think the government's interpretation of that. [00:07:07] Speaker 00: If you actually read the letter that Major Crumley submitted, what he actually says is that he takes full responsibility and ownership regarding his conduct slash tone in the meeting in the judge advocate's office on 22 November 10. [00:07:31] Speaker 00: He doesn't include any type of an admission there that he actually said something disrespectful or even had a disrespectful tone for that matter with Lieutenant Crowley. [00:07:39] Speaker 03: And he then goes on to say, I feel absolutely terrible and have personally extended apologies to Lieutenant Colonel Allen, Capt. [00:07:45] Speaker 03: Peeler, and have met personally with Captain Peeler recently to please convey to his NCO my apology in making his NCOs feel uncomfortable in the meeting. [00:07:55] Speaker 03: So I would say... That goes quite a bit further than just saying I take responsibility. [00:08:00] Speaker 03: It acknowledges that [00:08:01] Speaker 03: he feels that he needed to apologize for making other people feel uncomfortable in that meeting. [00:08:06] Speaker 03: That would certainly, it seems, be some evidence to support the conclusion of the lower tribunal, which was that he had behaved badly in this meeting and that that justified the action. [00:08:17] Speaker 00: I would make two points, Judge Moore. [00:08:20] Speaker 00: The first point being that, of course, we're on a de novo [00:08:23] Speaker 00: review here, there's not a substantiating the lower court's finding, but this court should be looking at the evidence as a whole and reaching its own decision without deference to that. [00:08:35] Speaker 00: But the second point being, there were three meetings, there were three ostensible meetings on that day. [00:08:41] Speaker 00: One had to do with the 66 ABG paralegal [00:08:45] Speaker 00: which took place in a public location at the medical facility where Mr. Crumley was, where Major Crumley was. [00:08:52] Speaker 00: The next was a meeting between Major Crumley and Kathy. [00:08:55] Speaker 03: So this says, I take full responsibility and ownership regarding my conduct and tone in a meeting in the Judge Advocate's Office on 22 November 10. [00:09:02] Speaker 03: Yes, and the... And then the sentences right afterwards explain what he means by that. [00:09:08] Speaker 03: So I find it hard to believe that the sentences immediately after the sentence talking about how this is referring to [00:09:15] Speaker 03: the meeting in the Judge Advocates Office on 22 November 10 are nonetheless directed to some other meeting? [00:09:20] Speaker 00: There was no communications with any paralegal in the Judge Advocates Office on 22 November. [00:09:28] Speaker 00: The communications in the Judge Advocates Office on that day were first with a subordinate officer, Captain Peeler, and then subsequently to that with a superior officer, [00:09:38] Speaker 00: Lieutenant Colonel Allen. [00:09:40] Speaker 00: The only communication that could form the basis for UCMJ, I would submit, would be the communication with Lieutenant Colonel Allen, disrespect for his superior commission officer. [00:09:49] Speaker 00: If raising your voice at a subordinate during a time of stress could constitute conduct unbecoming or some type of disciplinary action, then certainly none of the drill sergeants who I ever had at Fort Leonard would still be in the military. [00:10:04] Speaker 00: And presumably all of the commanders I've ever served under, as well as anybody in the military, [00:10:08] Speaker 00: would also have similar letters of admonishment in their files. [00:10:13] Speaker 03: I hate to say this, but I don't totally understand the line or chain of command. [00:10:18] Speaker 03: So Captain Peeler and Lieutenant Colonel Allen, how are they in the chain of command relevant to Major Crumley? [00:10:26] Speaker 00: They're not Major Crumley's chain of command. [00:10:28] Speaker 03: Okay, but where does a captain or a lieutenant colonel [00:10:32] Speaker 03: fall compared to a major? [00:10:35] Speaker 00: Sure. [00:10:35] Speaker 00: So just starting from captain, it would go captain up to major up to lieutenant colonel. [00:10:41] Speaker 00: So Major Crumley outranked Captain Peeler. [00:10:43] Speaker 03: Now I get it. [00:10:44] Speaker 03: That's what I was trying to understand is who outranked who. [00:10:48] Speaker 00: Yes, so Major Crumley outranked Captain Peeler and Lieutenant Colonel Allen outranked Major Crumley at the time. [00:10:58] Speaker 00: The point here, or one of the points here, is that we don't, and to your honor's point, if you look at the statement that Major Crumley submitted to the IG's office, he actually details exactly what was said and what was exchanged between everybody. [00:11:14] Speaker 00: And that's the only record that we have, and that does not [00:11:16] Speaker 00: I think what you have here is you have an airman accepting responsibility for his part. [00:11:20] Speaker 03: I know it's hard. [00:11:21] Speaker 03: I'm raising three boys, and I tell them all the time, you know, apologize. [00:11:25] Speaker 03: And sometimes they apologize for things they didn't even do wrong because it's just their nature. [00:11:30] Speaker 03: And you know, people, unfortunately, in the legal world, see an apology as an admission of guilt. [00:11:36] Speaker 03: And that's what, unfortunately, Mr. Crumley is suffering from with regard to that particular letter. [00:11:41] Speaker 03: He did the appropriate thing you would want an honorable man to do, which is to take some responsibility to apologize under the circumstances. [00:11:49] Speaker 03: Polite people do it all the time, even when it's not their fault. [00:11:52] Speaker 00: And I think that's exactly the problem here, Your Honor, is that there was never any type of investigation done. [00:11:57] Speaker 00: We still don't know. [00:11:59] Speaker 00: We still don't know what it was that Major Crumley allegedly said or did to Lieutenant Colonel Allen that was disrespectful to the status that would arise to a UCMJ violation, which resulted in- I gotta say, I'm raising a daughter, too. [00:12:13] Speaker 03: I have no idea why I limited that to three words. [00:12:16] Speaker 03: Totally inappropriate. [00:12:17] Speaker 03: All of it also applies to her. [00:12:20] Speaker 00: I have two, and I can curry her off. [00:12:24] Speaker 00: We still don't know what it was that was said. [00:12:26] Speaker 00: And this is one of those rare cases, and we appreciate [00:12:29] Speaker 00: Certainly I appreciate the broad deference that's given to the military and its personnel decisions. [00:12:34] Speaker 00: This is one of those cases, though, where the deck has been stacked against Major Crumley and the full might of the United States Air Force has moved against him and resulted in this situation, which everybody seems to acknowledge is unfortunate and disappointing, but nobody seems willing to say what was done was wrong, which was that he was being [00:12:53] Speaker 00: he was being reprised against for making this communication of a safety concern to senior army leadership, excuse me, Air Force leadership and safety officers. [00:13:06] Speaker 00: And the record also shows that, and this is getting back to Chief Judge Frost to one of your points, the record also shows that Major Crumley received a call later from the safety office [00:13:19] Speaker 00: that had jurisdiction saying, thank you for your email, and we are going to initiate a safety investigation based on your report into these conditions. [00:13:28] Speaker 00: And that's in the record as well. [00:13:29] Speaker 00: So I think it clearly was a protected communication. [00:13:32] Speaker 00: There's been a lot of discussion in the briefing about the IG report. [00:13:35] Speaker 00: To be clear, the IG did not, the Inspector General did not conduct an investigation. [00:13:40] Speaker 00: The Inspector General declined to conduct an investigation. [00:13:43] Speaker 04: Can I ask you just a related sort of [00:13:46] Speaker 04: In your blue brief initially, you listed the first, the fourth issue as being whether the adverse administrative action was procedurally deficient or reprisal against communications protected under the military risk of lower acts. [00:14:01] Speaker 04: The government comes in and says, there's no judicial review of the Military Whistleblower Act. [00:14:06] Speaker 04: And I didn't notice off the top of my head any response in gray. [00:14:11] Speaker 04: And I don't know anything very much about the Military Whistleblower Act. [00:14:15] Speaker 04: So I don't even know if your client preserved any rights for filing a whistleblower case, et cetera. [00:14:20] Speaker 00: So could you just illuminate a little bit? [00:14:25] Speaker 00: So we're not seeking a [00:14:28] Speaker 00: He's not seeking, he's not making a claim under the, it's not an independent claim under the Middle Military Whistleblower Protection Act. [00:14:34] Speaker 04: Would he have arguably an independent claim under that statute? [00:14:38] Speaker 00: My understanding, and I'm happy to provide supplemental briefing, is that following the amendments that were done in 2018, [00:14:47] Speaker 00: retroactive to 2017. [00:14:49] Speaker 00: There's clarification that there is such rights, but I'm not in a position to tell the court how that relates back to, say, 2012 when we're really talking about it. [00:15:01] Speaker 04: So you haven't asserted a claim of a whistleblower or a whistleblower reprisal or anything like that? [00:15:07] Speaker 00: No, it's not an independent claim of that. [00:15:09] Speaker 00: What it is is that the [00:15:12] Speaker 00: Decisions made by the various bodies, including the AFBCMR, were arbitrary, capricious, and contrary to law. [00:15:19] Speaker 00: And one of the reasons for that is because this was a violation of the Military Whistleblower Protection Act. [00:15:25] Speaker 00: So we're still continuing to challenge the AFBCMR decision. [00:15:28] Speaker 00: We're not making a separate claim under the Military Whistleblower Protection Act. [00:15:32] Speaker 00: I hope that distinction makes sense. [00:15:36] Speaker 00: I'm sorry. [00:15:38] Speaker 01: Have we been? [00:15:39] Speaker 01: notified on paper about this 2018 legislation that you mentioned? [00:15:45] Speaker 00: I don't believe that it's been briefed, and it's actually something I just happened to see as I was preparing for oral argument in the last several days. [00:15:53] Speaker 04: And it was explicitly involved the military whistleblower? [00:15:55] Speaker 04: Because I know there's been other whistleblower legislation in terms of who got jurisdiction. [00:16:00] Speaker 00: Yes, and I also know that the case that's being argued after us, I believe, originated with a non-military whistleblower, but a whistleblower issue. [00:16:08] Speaker 00: I'm concerned about making a representation of the court that I can't stand behind 100%. [00:16:14] Speaker 00: I don't want to do that. [00:16:15] Speaker 01: But I would be happy to submit. [00:16:21] Speaker 00: So I believe that it was amended recently to give jurisdiction, a broader jurisdictional framework. [00:16:28] Speaker 00: But I don't think that it really impacts this case because of the timeline. [00:16:32] Speaker 04: Okay, you've used your rebuttal. [00:16:35] Speaker 04: We'll restore your rebuttal. [00:16:36] Speaker 00: I'm terribly sorry. [00:16:38] Speaker 00: Thank you. [00:16:49] Speaker 02: Good morning, may I please support? [00:16:51] Speaker 02: I just want to hit on a couple of points from the appellant's counsel. [00:16:55] Speaker 02: You asked for recitation of the facts and he skipped of course the beginning of the facts is that the service member fell into the grave, two days later sends his email. [00:17:04] Speaker 02: That email was immediately forward to the JAG office with Colonel Yikes saying let's see what we can do for this service member, let's make sure he gets all the legal assistance he [00:17:12] Speaker 02: He's in need of, I believe, Chief Judge, you mentioned that it sounds like the email is a request for legal assistance, and that's exactly how the Air Force read it. [00:17:19] Speaker 02: They read it as, something terrible happened to this man, okay, let's forward this to the right office, let's make sure we get him all the help that he needs. [00:17:26] Speaker 04: Was he cc'd on that email? [00:17:27] Speaker 04: Was he aware that that was the action that was taken? [00:17:29] Speaker 02: At the time, no, but of course he submitted a FOIA request to the agency prior to commencing his lawsuit. [00:17:35] Speaker 04: Why wouldn't they tell him? [00:17:36] Speaker 04: I mean, it could have sort of ameliorated some of the incidents that took place afterwards if he had known somebody was paying attention to this and they forwarded it to the legal assistant. [00:17:47] Speaker 02: Well, I will. [00:17:48] Speaker 02: So the court asked whether or not he was CC'd on the email. [00:17:50] Speaker 02: He was not. [00:17:50] Speaker 02: However, he did receive a call from the legal office. [00:17:53] Speaker 02: Presumably, that call was, hey, we heard that something happened. [00:17:56] Speaker 02: Seems like a pretty logical leap that the legal office heard that something had happened because the email had been forwarded to them. [00:18:03] Speaker 03: Wait. [00:18:03] Speaker 03: Time out. [00:18:05] Speaker 03: there was an email that said we should get this serviceman all the help he needs. [00:18:09] Speaker 03: Yes. [00:18:10] Speaker 03: Okay. [00:18:10] Speaker 03: He was not at all aware of that email. [00:18:12] Speaker 03: You said then the record reflects that the legal office called him. [00:18:14] Speaker 03: I'm not certain I understand that anybody testified or there's anything in this record about what was discussed at the call, but you just suggested that we should divine [00:18:26] Speaker 03: that something similar to what was in the email was conveyed to him in this phone call? [00:18:30] Speaker 02: So what I intended to say was that based on the email being forwarded to the JAG office, Mr. Crumley received a call from the JAG office to set up an email to assist him with his legal rights. [00:18:40] Speaker 02: And so the record does not reflect that that call specifically said, yes, we received your email. [00:18:45] Speaker 02: We received it, however. [00:18:46] Speaker 03: What does the record reflect about the call in particular? [00:18:51] Speaker 03: Because I feel like you're suggesting what you think may have happened in the call, but that's not reflected in the record. [00:18:57] Speaker 02: I understood, Your Honor. [00:18:58] Speaker 02: If the court will just indulge me for a moment. [00:19:09] Speaker 02: So at the recorded appendix page 569, which is one of the multiple times that the email from Major Crumley was forwarded, Brigadier General Dwight Creasy says, sir, from a legal perspective, this is a legal assistance matter for Major Crumley and a potential claims issue for the Air Force. [00:19:29] Speaker 02: Naturally, there's a separate medical care piece. [00:19:31] Speaker 02: Lieutenant Colonel Allen, 66 ABGJG is the point of contact POC. [00:19:37] Speaker 02: Skipping the next sentence, a legal assistance attorney contacted Major Kumbley this morning and offered to provide legal assistance. [00:19:42] Speaker 02: And so it's based on that email in the record that it's our understanding that Mr. Kumbley was contacted. [00:19:48] Speaker 02: Your Honor is correct that the records not specifically reflect that they called him and said, yes, we received your email, and that's why we would like to have this meeting. [00:19:55] Speaker 02: But the email was received, and that's why he was contacted, and that's why the meeting in the JAG office occurred. [00:20:00] Speaker 01: And the email you just were reading from is 1130 on the morning of the 22nd. [00:20:08] Speaker 01: His email was 840 on the same morning. [00:20:11] Speaker 02: Yes, Your Honor. [00:20:14] Speaker 02: Yes. [00:20:14] Speaker 02: And so pretty quickly, the Air Force reached out to him and contacted him. [00:20:18] Speaker 04: So what precisely was the contact of conduct by Major Crumley on which the agency, the government, based its decision to not reopen? [00:20:30] Speaker 02: So he was reduced, it was a reduction in force pursuant to the 2011 national, so there's no conduct associated with that, it's an involuntary separation. [00:20:40] Speaker 02: The 2011 National Defense Authorization Act ordered the military to separate up to 30% of its officers. [00:20:48] Speaker 02: And unfortunately, Major Cromley was included as part of that. [00:20:51] Speaker 02: There's the record and the actual discussions of the, it's called RIF, which is Reduction Force, the actual discussions of the RIF board are statutorily protected and cannot be produced even in response to discovery requests by a court. [00:21:03] Speaker 02: And so we don't know, but this court has held, and the Elphin case, which is a 2014 opinion, excuse me, [00:21:09] Speaker 02: 2014 opinion that the decisions of the RIF boards, reduction in force boards, are not justiciable matters, whether or not... I'm just curious. [00:21:17] Speaker 03: So I understand the facts that he was reduced or eliminated as part of a RIF that was broader than just himself, obviously. [00:21:27] Speaker 03: Yes. [00:21:29] Speaker 03: And he responded, I don't think that was the real reason that I was let go. [00:21:34] Speaker 03: I think the reason I let go was retaliation for my whistleblower claim. [00:21:38] Speaker 03: Why are we then down the road of whether or not he behaved badly in a meeting? [00:21:46] Speaker 03: You said that he wasn't let go because he did anything wrong. [00:21:50] Speaker 03: So I guess I'm just struggling with what his behavior in a meeting with one superior and one subordinate has to do with this case. [00:22:00] Speaker 03: I'm confused. [00:22:01] Speaker 02: Sure, so it's Mr. Crumley's assertion that he was, that it was retaliation for his conduct or for his email to... For his email, right. [00:22:09] Speaker 02: Right, for his email. [00:22:10] Speaker 03: So why in the world are we... [00:22:12] Speaker 03: sort of discussing or disparaging his behavior in the meeting that subsequently took place. [00:22:17] Speaker 03: What relevance? [00:22:18] Speaker 03: I don't understand what relevance that has to the government's claim that he wasn't removed for any reason related to his individual performance. [00:22:25] Speaker 03: He was removed as a general rep. [00:22:27] Speaker 02: Right. [00:22:27] Speaker 02: So the government's response to this assertion that the letter of admonishment was put into his record as retaliation is, no, you actually did something. [00:22:35] Speaker 02: That was conduct that deserved the letter of admonishment. [00:22:39] Speaker 02: And we would note there's actually statutory authority. [00:22:43] Speaker 02: So just very briefly, Your Honor, there's essentially three levels of discipline within the military. [00:22:47] Speaker 02: The lowest level is three sub levels. [00:22:50] Speaker 02: And so you can either get a record of individual counseling, a letter of admonishment. [00:22:54] Speaker 03: So just out of, I just want to make sure I understand something. [00:22:58] Speaker 03: Are we here, has he claimed that the adverse action that he's appealing to this court is the RIF? [00:23:04] Speaker 03: or the letter of admonishment because I didn't understand us to necessarily have jurisdiction over a letter of admonishment. [00:23:10] Speaker 03: It's my understanding that we have jurisdiction to review adverse actions of a certain level of severity or higher and the letter of admonishment would not fall into this court's jurisdiction. [00:23:21] Speaker 03: Am I right about that? [00:23:23] Speaker 03: Yes, Your Honor. [00:23:24] Speaker 03: Even if it's attendant to his claims about a RIF, is that true? [00:23:28] Speaker 02: Yes, yes, Your Honor. [00:23:29] Speaker 02: Yes, that's correct. [00:23:30] Speaker 02: And so the question is whether or not the RIF Board, and I would note that the members of the RIF Board have to be completely separate from his chain of command. [00:23:38] Speaker 02: They have to sign an attestation. [00:23:40] Speaker 02: They have to remove themselves if they have anything to do with the person who's being considered for removal. [00:23:44] Speaker 03: I just want to make sure that I understand you. [00:23:47] Speaker 03: Is it the government's position that this court does not have jurisdiction to determine whether the letter of admonishment was appropriate? [00:23:55] Speaker 03: Because that's an adverse action, surely. [00:23:57] Speaker 03: Reprimand is an adverse action. [00:23:59] Speaker 03: So is it the government's view that this court does not have jurisdiction to decide whether that adverse action was appropriate or not? [00:24:06] Speaker 02: So the lower court, and of course this court in a Genova standard, reviews whether or not there was substantial evidence for the agency to put the letter of admonishment in Major Crumley's file. [00:24:17] Speaker 02: And so the court has jurisdiction to determine whether or not the boards properly determined that there was sufficient evidence underlying the letter of admonishment to permit the letter of admonishment to be put. [00:24:27] Speaker 04: But you're saying we have no jurisdiction to review not just the RIF itself, but what they even looked at. [00:24:35] Speaker 04: What are we supposed to do with the letter of admonishment if it has nothing to do with anyone, anything, unless we can establish that that was one of the bases upon which the rift developed? [00:24:45] Speaker 02: Correct, Your Honor. [00:24:45] Speaker 02: And I believe at the trial court level, the government did move to dismiss for lack of jurisdiction the administrative record as a finding that the agency did have substantial evidence underlying the decision to put a letter of admonishment into the major's record. [00:24:59] Speaker 04: But no link established that that has any relevance to anything, right? [00:25:03] Speaker 04: So the view is that we can independently review a letter of admonishment going into his file for substantial evidence, but we have no authority, no jurisdiction to review. [00:25:15] Speaker 02: So as I mentioned, the Alphen case in 2014 was somewhat similar. [00:25:19] Speaker 02: It was actually associated with the exact same 2011 NDAA and a reduction in force. [00:25:24] Speaker 02: I believe it was over 300 former members of the Navy. [00:25:27] Speaker 02: had been involuntarily separated. [00:25:29] Speaker 02: And they asserted a variety, obviously 300 different members, 300 different stories. [00:25:33] Speaker 02: They asserted a variety of different issues, merits, procedural, so on and so forth. [00:25:37] Speaker 02: And this court found that whether or not the RIF properly occurred was not justiciable. [00:25:42] Speaker 02: And I just want to note that the RIF is not the end all be all. [00:25:46] Speaker 02: There's three levels of internal appeal within the actual agency. [00:25:52] Speaker 02: in which the Major was able and did actually challenge the decision of the RIF. [00:25:56] Speaker 02: He, of course, appealed to the Air Force Board for correction of military records, appealed that denial to the Undersecretary of Defense, and then finally requested a special board before proceeding on to the Court of Federal Claims. [00:26:06] Speaker 02: But the Court of Federal Claims is held repeatedly, and is particularly in the Pascrot v. United States case, which we cited, [00:26:14] Speaker 02: that a military member has no vested interest in actual continued service. [00:26:18] Speaker 02: And an instance here where he was involuntarily separated but with an honorable separation, he wasn't given dishonorable or anything along those lines, he really has no interest outside of the statutory parameters that are set up within the agency to appeal the conduct that occurs. [00:26:35] Speaker 01: So the Military Pay Act, which is the statute that [00:26:42] Speaker 01: Court of Federal Claims judge found, created a money mandating, was money mandating to support Tucker Act jurisdiction. [00:26:55] Speaker 01: Does this court and did the Court of Federal Claims properly consider whether the, I guess the non-selection board [00:27:09] Speaker 01: could permissibly rely on the bad language, let's call it, at the November 22nd meetings that supported the letter of admonishment, and then the file, and then turn the non-selection word, or just one, or say, you just can't look at any of that, because the riff is the riff, and we can't look beyond it. [00:27:34] Speaker 02: So we did assert at the at the trial level that these issues are not justiciable, that they're whether or not there was. [00:27:41] Speaker 02: We also asserted there was not jurisdiction at the trial level because you have not made that assertion here, right? [00:27:49] Speaker 02: No, I believe we did not appeal to court's finding because they did find that they granted our motion for judgment on the administrative record, which, again, also was proper because even if you thought there's no jurisdiction, but since they were finding your favor, you decided to just, you know, allow the jurisdiction anyway. [00:28:03] Speaker 03: Is that basically what you just said? [00:28:06] Speaker 02: Yes, Your Honor, I believe it might be. [00:28:07] Speaker 02: OK. [00:28:09] Speaker 02: Yes, we did not kill the court's finding of jurisdiction. [00:28:11] Speaker 01: Right, but you have made a distinction between jurisdiction and justiciability. [00:28:17] Speaker 01: And you also did not make an argument in your rep brief here that jurisdiction aside, there's a justiciability problem. [00:28:26] Speaker 01: And we really can't even look at the actual basis or the grounds for the basis [00:28:32] Speaker 01: of the ultimate honorable discharge? [00:28:38] Speaker 02: Yeah, Your Honor, I believe that we did, and correct me if I'm wrong, I believe we did cite the Elphin versus United States case in our brief, which again is of course 2014 holding that the riff boards are not justiciable. [00:28:54] Speaker 02: However, yes, the crux of our argument was that the motion for judgment of the administrative record was properly granted by the trial court because even if this variety of procedural errors that are asserted by Mr. Crumley did occur, the actual conduct underlying it also occurred in letter of admonishment was a proper action taken by the military. [00:29:13] Speaker 02: And I would note, essentially, the injury that he [00:29:16] Speaker 02: complains about is that this very low-level disciplinary matter, I mean, again, there's three levels. [00:29:22] Speaker 02: He could have been court-martialed. [00:29:23] Speaker 02: There's statutory authority that would have permitted a court-martial him for speaking this way to a superior officer. [00:29:30] Speaker 02: Instead, he's given the middle level of the lowest level of discipline. [00:29:32] Speaker 02: In November of 2010, the 2011 National Defense Authorization Act was not even published until January 7th of 2011. [00:29:42] Speaker 02: So it's the idea that there was some kind of retribution as in... I'm not sure if you're aware of this, but you speak a tiny bit fast. [00:29:48] Speaker 02: Oh, I apologize, Your Honor. [00:29:49] Speaker 02: Just a little bit. [00:29:49] Speaker 02: Sorry. [00:29:50] Speaker 02: Apologies. [00:29:51] Speaker 04: Can I ask you an absolute hypothetical, which is what if a person in Major Crumley's position had sent to the highest chain of command, there's a real safety issue, and my supervisors aren't addressing it, and it's a problem, people are going to get hurt, and you need to know about this. [00:30:08] Speaker 04: And what about we all happen to know that people got [00:30:12] Speaker 04: angry with him because he didn't follow the chain of command. [00:30:15] Speaker 04: So it's really kind of a pretty much a classic protected activity in the whistleblower act. [00:30:19] Speaker 04: Under this military whistleblower act, under all these limited areas of review for the judiciary in the military, [00:30:27] Speaker 04: Would that be redressable in our court? [00:30:31] Speaker 02: So a couple of points. [00:30:32] Speaker 02: The RIF board has a very limited set of documents in front of them, and I believe it's a force instruction 36.2406 that actually go before, that's the evaluations that are included before the board. [00:30:44] Speaker 02: That's just the training report, which had this one line that said he received a letter of admonition for improperly addressing some legal staff. [00:30:51] Speaker 02: the full letter of admonition and the full email that he sent all the way to generals of the Pentagon was not included before the Rift Board. [00:30:57] Speaker 02: And so that is not something, and again, they're not within his chain of command. [00:31:01] Speaker 02: So that's not something the Rift Board could have possibly considered. [00:31:03] Speaker 03: Wait, but they considered the fact. [00:31:05] Speaker 03: I mean, they've got to cut 30% of the workforce. [00:31:07] Speaker 03: They considered the fact that he had a letter of admonishment. [00:31:10] Speaker 03: I get law clerk applications all the time. [00:31:11] Speaker 03: There's a typo, that one's gone. [00:31:13] Speaker 03: You know, you got to weed these out somehow. [00:31:15] Speaker 03: You know, so what, I guess I don't understand your point about, well, they didn't read the actual letter. [00:31:21] Speaker 03: they only knew that he had a letter of admonishment. [00:31:25] Speaker 03: I guess I don't understand the import of that distinction. [00:31:27] Speaker 02: Right. [00:31:27] Speaker 02: I understood, Your Honor, and I was just responding to Chief Judge Prowse's hypothetical that he sent this, my chain of command isn't listening, and so I have to send this all the way up to the Pentagon, and there's this really serious, like, a more proper whistleblower protected statement. [00:31:41] Speaker 02: And that really irked some people because you went outside of the chain of command and that was something that the RIF Board had considered. [00:31:48] Speaker 02: And I'm saying even if that had been the case, that letter of admonishment would not have actually been in front of them. [00:31:53] Speaker 02: The email would not have been in front of them. [00:31:54] Speaker 02: What they have are these training reports. [00:31:56] Speaker 04: Let's assume it was in front of them. [00:31:57] Speaker 04: Hypothetically, is there any recourse under those circumstances? [00:32:01] Speaker 04: How does the system work? [00:32:04] Speaker 02: Congress has made it very clear that the actual deliberations of these reports are statutorily protected, cannot be disclosed even in a discovery proceeding. [00:32:14] Speaker 02: I would refer the court to the statute at 10 U.S. [00:32:16] Speaker 04: Didn't you just tell us what was in it and what was not in it? [00:32:20] Speaker 02: Excuse me, Your Honor. [00:32:21] Speaker 02: So the actual documents that are provided to the Rift Board, yes, are public, or at least provided to Major Crumley, and were included in the appendix. [00:32:28] Speaker 02: The deliberations, whether or not the Rift Board actually looked at that and said, this guy's gone because he's got this letter of admonition on his record, that is something that is statutorily protected, cannot be disclosed. [00:32:38] Speaker 01: And that is... Right, but if a document on which the Rift Board undisputedly relied [00:32:43] Speaker 01: can itself be challenged that there is a possible remedy, which is send it back to whoever made the decision to discharge him and say, now that that document is no longer present, think about it again. [00:32:59] Speaker 01: There's no questioning of the initial drift towards [00:33:04] Speaker 01: deliberations in that sequence of traditional steps. [00:33:09] Speaker 02: So with 30% of the officer force being potentially reduced... He might have been discharged anyway. [00:33:14] Speaker 02: He might have been discharged anyway and that is exactly the point of the absolute discretion that is assigned to the military in their personnel decisions. [00:33:27] Speaker 02: And again, we can't, because of this specific congressional intent underlying the statute at 10 USC 613A. [00:33:37] Speaker 02: No, this is a statute that, and I have it in front of me here, your honor. [00:33:42] Speaker 02: It's called non-disclosure for proceedings and it says the proceedings of the selection board convene under section so on and so forth applicable may not be disclosed to any person not a member of the board except is authorized or required to process the report of the board. [00:33:57] Speaker 02: This prohibition is a statutory exemption from disclosure as described in section 5-5. [00:34:01] Speaker 01: I thought the scenario we were just talking about is one in which there has been no disclosure of the RIF board's proceedings only that they document [00:34:12] Speaker 01: reporting the letter of admonishment was before the board. [00:34:16] Speaker 01: There's no disclosure of the proceedings needed for, we may otherwise not be able to, but there's a violation of that for the court to look at what underlay the letter of admonishment and decide if there was some legal impropriety. [00:34:36] Speaker 02: Yes, what underlay the letter of admonishment, which again, the trial court found that there was substantial evidence for it. [00:34:42] Speaker 02: However, again, the injury, the actual something that is not justiciable, which is what we argued to the trial court, that even if they were to say, yes, this was improper, you should not have received this letter of admonishment, he wasn't separated and given a dishonorable discharge because of it. [00:34:58] Speaker 02: He was involuntarily separated under the statutory reduction in force with an honorable discharge. [00:35:02] Speaker 02: There's just nothing the court could do about it, because as this [00:35:06] Speaker 02: court held in Murphy versus United States, the decision to retain service members is, quote, wholly to the discretion of the military. [00:35:14] Speaker 02: There's no vested interest in continued military service. [00:35:17] Speaker 02: And when he's discharged with an honorable status, there's nothing for the courts to do for him, unfortunately. [00:35:21] Speaker 02: Can I just double check something with you? [00:35:23] Speaker 01: Yes. [00:35:24] Speaker 01: Our court has not held in any precedential decision that military whistleblower protection act claims are outside [00:35:34] Speaker 01: either outside the Tucker Act or when there is a Military Pay Act issue. [00:35:42] Speaker 02: Yes, this court affirmed the Court of Federal Claims holding in Klingschmidt in 2015 that found that there was a statute to not provide for judicial review, but... The D.C. [00:35:51] Speaker 01: Circuit last year held, almost necessarily, that the District Court had jurisdiction to hear a Military Whistle Flow and Protection Act claim because the D.C. [00:36:01] Speaker 01: Circuit said, we don't, [00:36:03] Speaker 01: So we have to decide whether to dismiss the appeal or transfer it. [00:36:06] Speaker 01: We're going to transfer it under the statute, the premise of which is that the transfer report has jurisdiction. [00:36:13] Speaker 01: Yes, Your Honor. [00:36:15] Speaker 02: Yes, although I would note that the standard for determining whether or not they actually made a protected statement under the Act is whether it was a substantial and specific danger to public health or safety. [00:36:25] Speaker 02: And as the trial court implicitly found by not finding jurisdiction over the Whistleblower Act claimed, [00:36:34] Speaker 02: The email that was sent along to the Pentagon was specifically about something really bad happened to me. [00:36:41] Speaker 02: I'm really upset. [00:36:42] Speaker 02: I expect full and unrelenting Air Force support to this. [00:36:44] Speaker 02: It was not a disclosure that was about a huge issue to public safety. [00:36:50] Speaker 02: So even if the court were to find that it had, that there was judicial remedy possible over that statute, it's not. [00:36:57] Speaker 03: I don't understand. [00:36:58] Speaker 03: How can you say it wasn't related to public safety? [00:37:01] Speaker 03: He was in a cemetery. [00:37:04] Speaker 03: They had put astroturf over an open grave. [00:37:08] Speaker 03: Just astroturf. [00:37:09] Speaker 03: No boards. [00:37:11] Speaker 03: No dirt was underneath it. [00:37:12] Speaker 03: I mean, it's almost like something off of a cartoon where you step on something and you fall through a hole. [00:37:17] Speaker 03: I mean, I assume this was the cemetery's normal policy, but even if it wasn't, why isn't he reporting a substantial risk to public safety? [00:37:26] Speaker 03: that these cemeteries are in fact doing this this way and we, the honor guard, are reporting to these cemeteries and we have certain positions we're supposed to take next to a military casket for proper burial purposes and we're never going to know whether we're stepping on a hole and falling in or not. [00:37:44] Speaker 03: I don't understand why you read his email as not disclosing a concern about public safety. [00:37:51] Speaker 02: So I believe if you read the email, it's a one-time thing that happened. [00:37:56] Speaker 02: It's not that this is happening to service members all over the country or that it's a policy of the Cambridge Cemetery to always hide the tops of graves with astroturf so that it's not immediately visible whether or not there's a hole underneath there. [00:38:09] Speaker 02: It's the agency found that it was, the agency evaluated his argument and found that it was a one-time event that happened and that it was not a [00:38:21] Speaker 02: substantial and specific danger to public health. [00:38:25] Speaker 02: What the statute is looking for is something broader, something more far-reaching than just a one-time accident that occurred. [00:38:33] Speaker 02: Thank you. [00:38:34] Speaker 00: Thank you, Your Honor. [00:38:42] Speaker 04: Yes, I'm going to restore two minutes. [00:38:45] Speaker 00: Thank you, Your Honor. [00:38:48] Speaker 00: Very briefly in rebuttal, [00:38:50] Speaker 00: The government's points underscore why there is a need for discovery in this case before there's a ruling made on the administrative record. [00:38:58] Speaker 00: And in these cases of bias and pretext, the case law is clear that the court not need, and I believe the colorful language is, the appellate need not show that they be both sinister and stupid, because typically, a military commander's [00:39:17] Speaker 00: where they're acting on pretext, it's not going to be in the administrative record, which is why there's a need for discovery. [00:39:22] Speaker 00: We've met that threshold showing in this case, and that's exactly why there should be discovery. [00:39:26] Speaker 00: Now, on the issue of what is and is not discoverable, there's sort of two buckets, if you will. [00:39:32] Speaker 00: One bucket having to do with [00:39:33] Speaker 00: the initial actions that were taken against Major Crumley, what was and wasn't said, whether the commander's decisions were supported by preponderance of the evidence, which is the required standard under the Air Force's own regulations, and the second being this issue of the Rift Board and their decision-making process. [00:39:50] Speaker 00: On the issue of the Rift Board and their decision-making process, I think the government [00:39:54] Speaker 00: goes a little further than the statute does in terms of the privileges associated with it. [00:39:59] Speaker 03: Is it your view that the non-justice ability of the RIF decision is not for this court, that unlike jurisdiction, that is a waivable issue and that the government has waived it here? [00:40:07] Speaker 03: Do you want me to say it again? [00:40:11] Speaker 00: Yes, please. [00:40:11] Speaker 03: Is it your view that unlike jurisdiction, which can't be waived, if we don't have jurisdiction, it doesn't matter whether she raises it or not? [00:40:17] Speaker 03: But below, not only do they argue no jurisdiction, they argued that RIF decisions made by the military are non-justiciable, which basically means you don't have the authority to review them. [00:40:27] Speaker 03: It amounts to almost the same thing as no jurisdiction. [00:40:31] Speaker 03: They made that argument below. [00:40:32] Speaker 03: They absolutely did not make it on appeal. [00:40:34] Speaker 03: Is it your position that that argument is waived and that therefore we do have the ability to look behind the RIF in this case? [00:40:42] Speaker 00: Yes, Your Honor. [00:40:44] Speaker 00: is the right answer. [00:40:45] Speaker 03: That is definitely the right answer. [00:40:47] Speaker 03: That's the right answer for your position. [00:40:50] Speaker 00: As well as the AFBCMR decision, but yes, in short, Your Honor, and I would submit that there should be further discovery here and those records that the government [00:40:59] Speaker 00: refers to from the report. [00:41:00] Speaker 00: Those are not in the record. [00:41:01] Speaker 00: Those were not provided to Mr. Crumley. [00:41:03] Speaker 00: And the only evidence that we actually have of what was said by 66 JAG office to Mr. Crumley in that phone call that allegedly took place, the council states what you can logically deduce was said in there, was that actually what happened, it's in Major Crumley's statement to the Inspector General, which is part of the record, is that Captain Peeler said, there's nothing we can do for you. [00:41:25] Speaker 00: It wasn't we're here to help you or we'll provide you with assistance. [00:41:28] Speaker 00: There's nothing we can do for you. [00:41:31] Speaker 04: Thank you. [00:41:32] Speaker 00: Thank you. [00:41:32] Speaker 04: We thank both sides in the case. [00:41:34] Speaker 01: Thank you, Your Honors. [00:41:47] Speaker 04: The next case for argument is 18.