[00:00:40] Speaker 05:
Our next case this morning is number seventeen twelve twenty three O'Farrell versus defense.

[00:00:45] Speaker 05:
Mr. Cooley.

[00:00:56] Speaker 02:
May it please the court.

[00:00:57] Speaker 02:
My name is Daniel Cooley and I represent the petitioner, Mr. Michael J. O'Farrell.

[00:01:02] Speaker 02:
This case turns on an issue of statutory interpretation.

[00:01:06] Speaker 02:
Below the board imposed

[00:01:08] Speaker 02:
on certain statutes relating to the service member's leave benefits, a listing requirement.

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Now on appeal, both parties agree that the service member, when trying to establish entitlement to leave benefits, can provide evidence outside of the orders.

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However, the Department of Defense now suggests that there are two additional statutory requirements.

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First, a directness requirement, and also a causation requirement.

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We believe that the correct construction of the statute, however, imposes only a temporal connection requirement.

[00:01:46] Speaker 02:
Let me ask you a question.

[00:01:49] Speaker 03:
I haven't looked at this law for a long time.

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And I raised it with my clerk this morning, but we didn't have time to really research it.

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I recall back in the early 90s that if a military member was activated

[00:02:07] Speaker 03:
and came back to their employer.

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And their employer penalized them for that service.

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But it was a crime under 18 United States Code, as well as providing civil remedies.

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Does that law still exist?

[00:02:22] Speaker 02:
Your Honor, I'm not familiar with that specific law.

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But I will say that there are certain provisions set forth and discussed in the Fischl case in the Supreme Court that state that if

[00:02:35] Speaker 02:
veterans or service members have to leave and get called into duty and then return that they are provided certain benefits of the veterans entitlements tax but but uh... i recall there being a criminal provision you're not you're not aware of not aware of it but it it does last the united states they should it does show the gravity of the situation the seriousness which uh... congress takes with this sort of a matter here and i think what we direct your attention to the language of the statute which is not

[00:03:05] Speaker 05:
Exactly.

[00:03:06] Speaker 05:
Crystal clear.

[00:03:10] Speaker 05:
You're claiming under 6323B2B, which talks about performing full-time military service as a result of a call or order to active duty in support of a contingency operation.

[00:03:24] Speaker 05:
And then the definition of contingency operation in section 101 of the statute says that it has to be a military operation.

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And I guess the question is what's meant by military operation, whether that means a military deployment.

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I mean, if your client, for example, had replaced somebody who was simply going on vacation and whose responsibility was contracting for the construction of military housing in Washington, D.C., I mean, would that be

[00:04:03] Speaker 05:
a military operation or not?

[00:04:08] Speaker 02:
So I guess there's two questions there.

[00:04:09] Speaker 02:
The first question is whether the individual who is departing, whether that individual is undertaking a military operation, and then individual who is replacing that individual, whether that person was undertaking a military operation.

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And I think the relevant question relates to the latter.

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Because as you, Judge Knight, correctly pointed out, the language of the statute requires

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that there be in support of a contingency operation.

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And to understand that, you go to the definition.

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What is a contingency operation?

[00:04:39] Speaker 02:
Let's understand.

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And Congress has explicitly referred to Section 101.

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And in that, they say a military operation, which results in the call or order to duty.

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And then it provides a number of sections.

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And then the terminal of which, which is, I would say, a catch-all provision to sweep in unintended or missed provisions, says any other provision of law.

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Now, here I think the plain reading of military operation for that second individual is an operation of the military.

[00:05:08] Speaker 02:
This person has been called in to serve in the military.

[00:05:11] Speaker 01:
No.

[00:05:13] Speaker 01:
I can't possibly be right.

[00:05:14] Speaker 01:
You're ignoring the rest of the statute.

[00:05:16] Speaker 01:
A military operation, action or hostility against an enemy of the United States or against an opposing military force.

[00:05:23] Speaker 01:
It's not just somebody that's called into operation in the military.

[00:05:26] Speaker 01:
Judge Dyck's hypo suggested the first guy was going on vacation.

[00:05:30] Speaker 01:
Is his vacation necessarily a military operation against a hostile for the United States?

[00:05:35] Speaker 01:
Of course not.

[00:05:36] Speaker 02:
Well, and again, so I think we have to distinguish between the person who's departing and the person who's being called in.

[00:05:43] Speaker 02:
I don't think the statute requires that the person departing, what they do is a military operation.

[00:05:48] Speaker 02:
The question is, the person that's coming in, what are they supporting?

[00:05:51] Speaker 02:
And so here, I appreciate- Well, I'm not sure that's true.

[00:05:56] Speaker 05:
For example, if someone were called up, which of course happened to go to Afghanistan, that would be, he would be participating in a military operation.

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He'd get the extra compensation, right?

[00:06:08] Speaker 05:
But if that person is not being deployed, then you have to say, well, he's nonetheless supporting a military operation because he's replacing somebody who's engaged in a military operation.

[00:06:23] Speaker 05:
Under my hypothetical,

[00:06:25] Speaker 05:
the person who was replacing was not doing that.

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The person was just going on vacation.

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So it seems to me that you can look at either one to support your idea that the statute has coverage, but if the person going in is not being deployed and he's not replacing somebody who's being deployed, I have some difficulty in seeing how the statute would apply.

[00:06:50] Speaker 05:
Am I being clear about that?

[00:06:51] Speaker 02:
I do understand, Your Honor, and I do think that

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The hypothetical is an interesting one, although under the facts of this case, right, it's a situation where somebody was replacing someone who had deployed to a military operation.

[00:07:07] Speaker 02:
So it would be under your first hypothetical.

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But I do think that as we look through the language of the statute, it's pretty straightforward.

[00:07:17] Speaker 02:
And once again, it turns on what is a contingency operation, and I do think

[00:07:22] Speaker 05:
I'm trying to get the breadth of your argument.

[00:07:25] Speaker 05:
It's basically what I'm getting at.

[00:07:27] Speaker 05:
And would your argument go so far as to say replacing somebody who's going on vacation is participating in support of a contingency operation?

[00:07:39] Speaker 02:
Is replacing somebody that's going on vacation?

[00:07:42] Speaker 03:
Well, again, I think... Well, let me change the hypo a little.

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Somebody's in combat.

[00:07:51] Speaker 03:
Uh, they're sent on rest and recuperation leave for, uh, two weeks or they're, uh, injured and they're sent to a hospital in Germany and somebody replaces them or they're replacing somebody who in some sense is going on vacation.

[00:08:07] Speaker 02:
Yeah.

[00:08:08] Speaker 02:
I saw, I appreciate that judge.

[00:08:09] Speaker 02:
Well, I think that that's exactly right.

[00:08:11] Speaker 02:
In that circumstance, that would certainly satisfy 101 a 13 and I, I wonder if that replacement person is going directly into combat.

[00:08:20] Speaker 02:
Correct.

[00:08:20] Speaker 02:
And I want to return to a point Judge Moore made earlier.

[00:08:24] Speaker 05:
Wait, wait, wait.

[00:08:24] Speaker 05:
But there's no question about that.

[00:08:26] Speaker 05:
If the person who's being called up is going into combat, is going into a military operation, no question the person is covered.

[00:08:35] Speaker 05:
And it would seem also if the person who's going in the military is replacing somebody who's being deployed, that also can arguably be in support of a military operation.

[00:08:45] Speaker 05:
But what about the situation in which neither one of those things is true?

[00:08:50] Speaker 05:
and the person who is being called up is only replacing somebody who's going on vacation, a person who was not deployed and was just sitting here in Washington working on military housing in the Washington area.

[00:09:04] Speaker 05:
Does your argument go so far as to say that that person gets the extra compensation?

[00:09:09] Speaker 02:
Your Honor, I think that that is an interesting question, honestly, that one could argue both ways.

[00:09:17] Speaker 02:
And I think that, you know,

[00:09:19] Speaker 02:
Reading the plain language of the statute, I do think the statute does focus on the person coming into service and that person's operation.

[00:09:28] Speaker 03:
What was the operation?

[00:09:29] Speaker 03:
Doesn't it depend on the complexity of the armed forces?

[00:09:34] Speaker 03:
I mean, so much of what the military, the pointy end of the spear is only 10%.

[00:09:40] Speaker 03:
So much of what the military does is logistics, training, preparation, and all of those are in support of

[00:09:48] Speaker 03:
military operations, they have to be.

[00:09:51] Speaker 03:
So your person, your client is somebody who's doing something along those lines.

[00:10:01] Speaker 02:
That's correct.

[00:10:02] Speaker 03:
Making the military work in wartime.

[00:10:05] Speaker 02:
Correct.

[00:10:05] Speaker 02:
And I want to focus, if we can, just very briefly on this language that was specifically chosen by Congress here at the end where it says, any other provision of law during a war.

[00:10:15] Speaker 02:
I think that really is the operative word.

[00:10:17] Speaker 02:
during, because this is during a time of exigency, right?

[00:10:23] Speaker 02:
It's necessarily during a time of national emergency.

[00:10:27] Speaker 02:
It's a time of national consequence.

[00:10:29] Speaker 01:
Yeah, but you still have to be in support of a contingency operation.

[00:10:34] Speaker 01:
So you have to be in support of something related to that war.

[00:10:38] Speaker 02:
Correct.

[00:10:38] Speaker 02:
And that's exactly right, Judge Moore.

[00:10:41] Speaker 02:
And the relationship that Congress chose was a temporal relationship.

[00:10:45] Speaker 02:
They said during.

[00:10:46] Speaker 02:
They did not require that it be, what in effect the Department of Defense is trying to argue, is that it says during and in support of, or during and directly caused by.

[00:10:56] Speaker 02:
But that's not what the language in the statute says.

[00:10:59] Speaker 02:
And I say this is constant.

[00:11:00] Speaker 01:
I don't understand what you think in support of means.

[00:11:02] Speaker 01:
The person has to be called to active duty in support of a contingency operation.

[00:11:08] Speaker 01:
I don't

[00:11:09] Speaker 01:
I'm just very confused.

[00:11:11] Speaker 01:
I feel like you didn't listen to Judge Dyke's hypothetical very well.

[00:11:15] Speaker 01:
I appreciate you're doing this pro bono.

[00:11:17] Speaker 01:
You wrote great briefs, but you're not listening.

[00:11:20] Speaker 01:
We are actually on your side and you're fighting us because you're not listening.

[00:11:24] Speaker 01:
Let me roadmap it really clearly for you.

[00:11:26] Speaker 01:
In support of, in my view, means

[00:11:31] Speaker 01:
It doesn't matter whether your guy is in support of.

[00:11:33] Speaker 01:
It's good enough if the guy leaving is clearly in support of the military operation, which in this case he was, because he was going to Afghanistan.

[00:11:40] Speaker 01:
You don't have to win every case.

[00:11:41] Speaker 01:
You just have to win your case for your veteran.

[00:11:43] Speaker 01:
So if it's good enough, and that's why I can't get inside Judge Dyke's mind, but I have to imagine that I saw very clearly his hypothetical, but you did not.

[00:11:52] Speaker 01:
And the answer to his hypothetical should be, of course not, Judge Dyke.

[00:11:56] Speaker 01:
If somebody's just leaving on vacation and somebody else gets called up, that's not in support of a contingent military operation, a national emergency, a war time, whatever.

[00:12:04] Speaker 01:
But in this case, it absolutely is because that guy's going to Afghanistan.

[00:12:08] Speaker 01:
It doesn't matter whether my guy's going to Afghanistan, and that's what's in support of language.

[00:12:12] Speaker 01:
The in support of language allows you to distance yourself a little bit.

[00:12:16] Speaker 01:
You don't have to be the one going to Afghanistan, but you're doing this because someone is.

[00:12:22] Speaker 01:
Is that not good enough for you to win?

[00:12:24] Speaker 02:
You're honest, Craig.

[00:12:25] Speaker 02:
I think the pertinent fact here is under the facts of this case, right?

[00:12:31] Speaker 02:
You're correct.

[00:12:33] Speaker 02:
Under the facts of this case.

[00:12:33] Speaker 02:
But this is a statute we're interpreting for general purposes, right?

[00:12:36] Speaker 03:
And it's good enough for you to win, but it's not reality.

[00:12:39] Speaker 03:
And it's not reality because of the way the armed forces work.

[00:12:42] Speaker 03:
People go on vacation working in the Pentagon, and people are called up from the Reserve and the National Guard to replace them.

[00:12:50] Speaker 03:
And it's in support of

[00:12:52] Speaker 03:
If that person's working on a job in support of a national emergency, then that person who's called up is working on a job in support of a national emergency.

[00:13:02] Speaker 03:
It's the way the system works.

[00:13:03] Speaker 01:
But let me respond to that.

[00:13:06] Speaker 01:
I wouldn't disagree at all, because that would be a situation where the person called up is actually directly working on relevant matters for a national emergency.

[00:13:14] Speaker 01:
Your guy's not.

[00:13:15] Speaker 01:
There's no dispute that your guy isn't doing national emergency.

[00:13:20] Speaker 01:
He's not doing.

[00:13:21] Speaker 01:
the stuff personally related to hostiles who are enemies of the United States.

[00:13:28] Speaker 01:
And that's OK, because maybe the statute doesn't require him to.

[00:13:31] Speaker 01:
By no means did my interpretation exclude Judge Wallach's hypothetical, because in his hypothetical, the guy called up would be absolutely working directly in support of all of those things.

[00:13:44] Speaker 02:
And that's correct, Your Honor.

[00:13:46] Speaker 01:
My concern is the same concern the government had.

[00:13:49] Speaker 01:
which is simply not interpreting the statute in a way that creates a scenario where every single military officer called to active duty since 9-11, just because we have had a declared state of national emergency since 9-11, is automatically entitled to what is clearly meant to be extra compensation for people that really are called up in support of a national emergency.

[00:14:12] Speaker 01:
I want to avoid an interpretation which I think results in this statute being way

[00:14:19] Speaker 01:
broader than what it was intended to be.

[00:14:22] Speaker 01:
Do you understand the concern I'm expressing?

[00:14:24] Speaker 02:
I absolutely understand.

[00:14:26] Speaker 02:
And if the court chooses to construe the statute in that way, then as the court noted, then Mr. O'Farrell would still be entitled to the benefits under the statutory provisions.

[00:14:38] Speaker 02:
I will note just two clarifying points very quickly for the judge.

[00:14:42] Speaker 02:
First of all, there are a variety of other provisions not in dispute in this case that Mr. O'Farrell satisfies.

[00:14:48] Speaker 02:
that would provide a limitation beyond kind of a hyperbole statement and that they include, for example, that has to be full-time military service.

[00:14:58] Speaker 01:
But that's in dispute.

[00:14:59] Speaker 02:
Don't waste your time.

[00:15:00] Speaker 02:
So it's not merely that, I just want to make clear, it's not merely that somebody just gets called during.

[00:15:03] Speaker 02:
That's not the only limitation on the statute.

[00:15:06] Speaker 02:
The other is the service member has put in facts that his service in the NSWC did support contingent operations.

[00:15:14] Speaker 02:
I would refer to 322 where he makes those statements.

[00:15:18] Speaker 02:
Thank you, Mr. Ashman.

[00:15:29] Speaker 04:
I'll give you two minutes.

[00:15:31] Speaker 03:
When was the last time the United States was at war?

[00:15:34] Speaker 04:
A declared war by Congress.

[00:15:38] Speaker 04:
At war.

[00:15:41] Speaker 04:
We've been in open hostilities since at least 2001, Your Honor.

[00:15:46] Speaker 04:
with enemies under declared.

[00:15:47] Speaker 03:
Are there statutes in place in the United States which go into effect when the United States is actually at war?

[00:15:58] Speaker 04:
Well, this 101, or this leave benefit would... It says war or national emergency.

[00:16:05] Speaker 04:
Yes, Your Honor, 101A and 101B cover those two.

[00:16:08] Speaker 04:
Is the United States at war?

[00:16:10] Speaker 04:
It is in, Your Honor, not trying to be

[00:16:14] Speaker 03:
Can the United States seize industries and nationalize them and direct them to produce certain products pursuant to the war powers of the President?

[00:16:30] Speaker 04:
I don't believe so, Your Honor.

[00:16:31] Speaker 04:
There's not a declared war by Congress.

[00:16:33] Speaker 04:
Congress has not declared war, so those powers would not be there, I don't believe.

[00:16:38] Speaker 03:
So what I'm driving at is since 1946, I think, when we repealed those

[00:16:45] Speaker 03:
situations.

[00:16:46] Speaker 03:
We've been operating in Korea and Vietnam and so on under the national emergency sections.

[00:16:54] Speaker 04:
Or under the authority of the President and his national emergency authorities under the Constitution.

[00:17:00] Speaker 04:
Your honor, this provision 101, the definition of military operation 101, it affords for both of these scenarios.

[00:17:07] Speaker 04:
So under 101 13A, it does talk generally about operations that involve open hostilities with the enemy.

[00:17:14] Speaker 03:
101B... If somebody's investigating allegations of war crimes at the Pentagon that are alleged to have been done by

[00:17:27] Speaker 03:
people who are being held at Guantanamo, are they doing that in support of military operations?

[00:17:35] Speaker 04:
Likely, Your Honor, yes.

[00:17:37] Speaker 04:
If the military operation is in support of

[00:17:48] Speaker 04:
say, the war on terrorism, a direct support the war on terrorism.

[00:17:53] Speaker 04:
They're detaining terrorists, so that could likely be a military operation involved with that national emergency.

[00:18:00] Speaker 04:
And Your Honor, I was going to point out that a 101B just says national emergencies generally, so there could also be contingency operations that deal with natural disasters, civil unrest, those type of scenarios as well.

[00:18:14] Speaker 03:
So if military personnel are deployed to Afghanistan,

[00:18:18] Speaker 03:
And their families don't have housing at Fort Belvoir because it hasn't been built.

[00:18:26] Speaker 03:
And all of a sudden, we do a ramp up on the number of troops.

[00:18:30] Speaker 03:
And the government starts building housing for those families.

[00:18:35] Speaker 03:
Is that housing in support of the national emergency?

[00:18:41] Speaker 03:
Military operations?

[00:18:43] Speaker 04:
It could be, Your Honor.

[00:18:45] Speaker 04:
But an important point under the statute is also how

[00:18:48] Speaker 04:
how the Department of Defense views the order that it's issuing to the individual, to the service member.

[00:18:56] Speaker 04:
In 6232B, it says, a call or order to active duty in support of the contingency operation.

[00:19:03] Speaker 04:
So it's relevant to understand what was DOD's intent when they placed the person on active duty.

[00:19:09] Speaker 04:
And I believe that's why the administrative judge did focus on the orders, because that is a natural starting point to determine the intent.

[00:19:16] Speaker 05:
Well, actually, the orders in that respect are helpful to the veteran, because the order talks about being called up to provide support.

[00:19:29] Speaker 04:
The order, Your Honor, the orders did not say in support of a contingency operation and the agency did put into the record an example of another service member's orders who did specifically have that recommendation.

[00:19:41] Speaker 03:
What entity issued those orders?

[00:19:42] Speaker 03:
I'm sorry, Your Honor?

[00:19:43] Speaker 03:
What entity issued those orders?

[00:19:45] Speaker 03:
DOD issued those orders?

[00:19:46] Speaker 04:
Yes, Your Honor.

[00:19:48] Speaker 04:
And they did cite the provision 12301D, which was the authority under which Mr. O'Farrell was called up.

[00:19:54] Speaker 04:
It's the provision that allows a member to be called up after consent.

[00:19:59] Speaker 04:
But it did not indicate in this case, as it has in other cases, that Mr. O'Farrell is being called up to support a contingency operation.

[00:20:07] Speaker 04:
And we agree with Mr. O'Farrell that that is not the end of the inquiry, that a service member could, if the orders do not say that, that the service member

[00:20:17] Speaker 04:
could produce other evidence.

[00:20:36] Speaker 04:
Judge, keyed in on is you have an example of one service member whose orders did say contingency operation, so that is a standard procedure that the DOD uses when it intends to issue orders in support of contingency operation, and in this case it did not.

[00:20:53] Speaker 04:
So we believe the DOD... Can I ask you to back up just a moment here?

[00:20:56] Speaker 05:
We have this definition in Section 101 of the statute of contingency operation, and that's relevant here.

[00:21:05] Speaker 05:
In what other areas is the term contingency operation used?

[00:21:10] Speaker 05:
In what other areas of the statute?

[00:21:12] Speaker 05:
What is the significance of the term?

[00:21:14] Speaker 05:
What is its utility in other respects?

[00:21:17] Speaker 05:
What does it define?

[00:21:21] Speaker 05:
For the leave purpose... No, no, I'm asking beyond the leave purpose.

[00:21:25] Speaker 05:
This is a general term which, as I understand it, is not used only to define the right to pay leave.

[00:21:33] Speaker 05:
It has many, many other uses in the statute, correct?

[00:21:38] Speaker 00:
Yes, Your Honor.

[00:21:38] Speaker 05:
And what are those other uses?

[00:21:41] Speaker 05:
What is contingency operation used for in other areas?

[00:21:47] Speaker 04:
Because that could shed some light on its meaning.

[00:21:50] Speaker 04:
Your Honor, unfortunately, I'm not aware of the other uses of that term outside of the context of this statute.

[00:21:59] Speaker 04:
Your Honor, the issue the court is addressing is... Where is the order activating Lieutenant Carl?

[00:22:09] Speaker 03:
114.

[00:22:10] Speaker 03:
Yeah.

[00:22:12] Speaker 03:
Where does it say Department of Defense on that?

[00:22:28] Speaker 03:
I apologize, Your Honor.

[00:22:29] Speaker 03:
It's the Department of the Army.

[00:22:30] Speaker 03:
It is the Department of the Army, and there's a difference, isn't there?

[00:22:34] Speaker 04:
The Department of the Army is a component of the Department of Defense, Your Honor.

[00:22:38] Speaker 03:
That's true.

[00:22:40] Speaker 03:
So the Department of the Army activated him, right?

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

[00:22:45] Speaker 03:
Is the Army engaged in military operations?

[00:22:48] Speaker 03:
Yes, Your Honor.

[00:22:51] Speaker 03:
Against a hostile enemy?

[00:22:54] Speaker 03:
Yes, Your Honor.

[00:22:55] Speaker 03:
And activities in support of those military operations are anything that makes the Army function more effectively in combat.

[00:23:02] Speaker 03:
Is that not true?

[00:23:06] Speaker 04:
In its broadest sense, yes, Your Honor.

[00:23:09] Speaker 03:
In its broadest sense, that's what they teach in Command and General Staff School.

[00:23:14] Speaker 04:
I assume so, Your Honor.

[00:23:20] Speaker 04:
So we would also point out, however, that's been indicated earlier is that

[00:23:25] Speaker 04:
There's two leave benefits that are conferred in 6323B or 6323, there is an automatic leave benefit of 15 days that every service member gets.

[00:23:37] Speaker 04:
6323B is something that's meant to be an additional in special circumstances.

[00:23:43] Speaker 04:
So our reading of contingency operation has to be consistent with that structure that this was meant to be special for special circumstances.

[00:23:52] Speaker 04:
And the issue that we have and the board have is that Mr. O'Farrell, while the specific fact that he replaced somebody who went to Afghanistan is in the record, there was no argument presented by him to say that my service, his service, did in fact support a contingency operation.

[00:24:10] Speaker 04:
It was just he relied on the fact that he was on active duty, the fact that someone did go to Afghanistan, and the fact that there was an emergency at the same time.

[00:24:20] Speaker 04:
For instance, we don't know whether or not that person could have been deployed, but for his active duty service.

[00:24:27] Speaker 03:
So that was not... I'm sure you don't know the expression from World War II, which my dad used to repeat.

[00:24:34] Speaker 03:
Don't you know there's a war on?

[00:24:37] Speaker 03:
Maybe you've heard it.

[00:24:39] Speaker 04:
Yes, Your Honor.

[00:24:39] Speaker 04:
I have heard that.

[00:24:40] Speaker 04:
And what we're saying is... Still applies.

[00:24:45] Speaker 04:
Yes, Your Honor.

[00:24:46] Speaker 04:
Well, what we're saying is for the purpose of the special leave benefit, there has to be a connection and that connection has to be demonstrated in the record.

[00:24:54] Speaker 04:
And you've conceded the record shows that.

[00:24:58] Speaker 04:
We show that there is a fact that he did replace somebody who goes to Afghanistan.

[00:25:03] Speaker 04:
It's shown in the record.

[00:25:04] Speaker 03:
That's what you said had to be shown.

[00:25:06] Speaker 04:
But there's no, by showing, we also mean an argument of an explanation of, okay, well, how did his service, how did that service support the operation?

[00:25:16] Speaker 04:
That explanation was not heard.

[00:25:17] Speaker 03:
Are you familiar?

[00:25:18] Speaker 03:
Tell me, are you aware of the section of the United States, 18 United States Code to which I was referring when I asked your opposing counsel?

[00:25:24] Speaker 04:
I am, Your Honor.

[00:25:26] Speaker 04:
I'm not aware of the specific section that addresses criminal sanctions for discrimination based on active duty service.

[00:25:33] Speaker 04:
USERRA does, civil purposes, USERRA does cover that.

[00:25:38] Speaker 04:
And so, Your Honor, the issue with, and to close, the issue with the board's decision

[00:25:45] Speaker 04:
The board was troubled by the fact that the orders did not state contingency operation, and we agree that evidence can be produced outside of the orders.

[00:25:53] Speaker 04:
However, it's not certain that the board was making a legal determination under the statute.

[00:25:59] Speaker 04:
The orders had to say that.

[00:26:01] Speaker 04:
That statement did come after a discussion of the record evidence, and the board did note that the appellant did not.

[00:26:10] Speaker 05:
How is it that this individual

[00:26:13] Speaker 05:
is not replacing somebody in support of a military operation.

[00:26:20] Speaker 05:
Surely the person he replaced was participating in a military operation in Afghanistan, correct?

[00:26:25] Speaker 05:
Yes.

[00:26:25] Speaker 05:
So why isn't he replacing him in support of a military operation?

[00:26:31] Speaker 04:
Your Honor, the fact that I raise that we don't know is, it was a naval installation.

[00:26:36] Speaker 04:
Was that person's deployment dependent upon finding a replacement?

[00:26:42] Speaker 04:
We don't know that.

[00:26:43] Speaker 04:
We don't know if the command could have sent him, but for having a replacement.

[00:26:48] Speaker 04:
So there wouldn't have been a connection in that instance.

[00:26:50] Speaker 05:
So it's a but-for test?

[00:26:52] Speaker 05:
The support test is a but-for test?

[00:26:54] Speaker 04:
Well, Your Honor, that argument of what does support mean wasn't developed below the board.

[00:27:02] Speaker 04:
I'm asking now what it means.

[00:27:04] Speaker 05:
Why is this not in support of a military operation where the person who replaced went to Afghanistan?

[00:27:10] Speaker 05:
And the statute says in support of a military operation.

[00:27:14] Speaker 04:
Well, Your Honor, the record shows that Mr. O'Farrell was performing the general duties of a contract law office at a naval installation.

[00:27:21] Speaker 04:
Those duties would likely be the ongoing, whether there was open hostilities going on, whether there was a war going on.

[00:27:28] Speaker 03:
It's a naval surface warfare center.

[00:27:32] Speaker 03:
So contract law involving naval surface warfare would involve

[00:27:37] Speaker 03:
for instance, replacing the shells that the ships, the frigates carry or the destroyer escorts or whatever it is carry in their work in the Persian Gulf, would that be correct?

[00:27:52] Speaker 04:
Likely, Your Honor.

[00:27:56] Speaker 04:
Your Honor, we'll close by

[00:27:58] Speaker 04:
Mr. O'Farrell stated in his reply brief that if the court does conclude the board incorrectly made a legal determination about the requirements of the orders that under chainery the issue of was there support is a factual determination the board would need to make in the first instance.

[00:28:18] Speaker 04:
Unless there are any further questions, we respectfully request the court confirm the board's decision.

[00:28:29] Speaker 02:
Thank you, Your Honor.

[00:28:30] Speaker 02:
I just want to address a few quick points that were discussed.

[00:28:34] Speaker 02:
First of all, I think it was Judge Dyck asked the question where the terminology contingency operation is used, and based on our research, it's used in approximately 35 other statutory provisions, and it's specifically referred to by name as 101A13 contingency operation.

[00:28:51] Speaker 02:
I would refer to 5 USC 5742 as an example of that, and it's a good example because it

[00:28:57] Speaker 02:
explicitly imposes a directness requirement in that statute, a provision that's absent here.

[00:29:03] Speaker 05:
What are the other statutes where this term is used?

[00:29:07] Speaker 02:
Unfortunately, I don't have a full listing of them here.

[00:29:10] Speaker 02:
I just have an example.

[00:29:13] Speaker 02:
But I will note also that regarding the terminology and the usage of the term during, I would refer the court to 425 F3D 549.

[00:29:25] Speaker 02:
This speaks to the executive's usage of this sort of language to call people into duty.

[00:29:31] Speaker 02:
And it seems only fair that that same scope should be applied on the other side when applying benefits.

[00:29:37] Speaker 01:
Is it your argument that everyone who's called up to active duty, no matter what the purpose or point of their particular call is, if the branch of service in which they will be called into

[00:29:53] Speaker 01:
Is itself engaged in military conflict or there is a national emergency that every single person called to active duty is automatically entitled to not just the standard 15 days, but the extra 22 days?

[00:30:08] Speaker 01:
Is it your view that the statute gives every single person called to active duty, regardless of the purpose of the work they will be doing, regardless of who they will be replacing, automatic entitlement simply by virtue of being called up

[00:30:23] Speaker 01:
They happen to be called into the army at a time when the army itself is engaged in warfare.

[00:30:29] Speaker 02:
I understand the question, Your Honor, and I do agree that the language military operation is there and does have to be an operation of the military.

[00:30:36] Speaker 02:
So it couldn't be any kind of activity.

[00:30:40] Speaker 02:
I would agree that that would be reaching too far.

[00:30:42] Speaker 02:
I think the third point that I want to make relates to waiver.

[00:30:48] Speaker 02:
and that the agency has raised.

[00:30:51] Speaker 02:
And I would refer the court to the briefing that I mentioned before where Mr. O'Farrell does note that he was engaged at NSWC, which is engaged in military operations and contingency operations around the world.

[00:31:02] Speaker 02:
So he did make a direct statement.

[00:31:04] Speaker 02:
And also in that same brief, he talks about operation enduring freedom in the factual discussion.

[00:31:11] Speaker 02:
The fourth point is the agency has stated several times that there does not have to be a connection.

[00:31:15] Speaker 02:
We would disagree.

[00:31:16] Speaker 02:
There does have to be a connection.

[00:31:17] Speaker 02:
It's just a temporal one.

[00:31:18] Speaker 02:
The word during is used to impose a temporal connection.

[00:31:21] Speaker 02:
That's the explicit language used in the statute.

[00:31:24] Speaker 02:
Okay, I think we're about out of time.

[00:31:26] Speaker 02:
All right.

[00:31:26] Speaker 02:
Thank you, Your Honor.

[00:31:27] Speaker 02:
Okay, thank you, Mr. Kelly.

[00:31:28] Speaker 05:
Thank both counsel.

[00:31:29] Speaker 05:
The case is submitted.