[00:00:45] Speaker 02:
The next case is Joseph Jones versus the United States, 2019-15-60.

[00:00:53] Speaker 02:
Mr. Stansky.

[00:00:58] Speaker 00:
Good morning.

[00:00:59] Speaker 00:
May it please the court.

[00:01:00] Speaker 00:
My name is Michael Stansky and I represent Mr. Jones.

[00:01:03] Speaker 00:
This case presents an important procedural legal issue regarding how the discovery of misconduct relates to and crews for Tucker Act

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and taking close claims.

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I want to first start by talking about the misconducts generally and move into the accrual.

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I think we're pretty aware of the facts here.

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How does later discovery of misconduct do anything to his knowledge of his cause of action, which was a challenge to his removal?

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He certainly knew when he was removed.

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They gave him the reasons for the removal.

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You're not suggesting that he was removed for some secret reason.

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You're suggesting that the reasons were not correct.

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But at the time of his removal, obviously, he knew he was removed.

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Shouldn't he have filed within six years?

[00:01:57] Speaker 00:
He – Your Honor, I don't agree with your characterization because – Well, you have to agree that he knew he was removed, right?

[00:02:03] Speaker 03:
Yes, Your Honor.

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And they gave him reasons for his removal.

[00:02:06] Speaker 03:
Yes, Your Honor.

[00:02:07] Speaker 03:
It was in his removal papers.

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What were they?

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It was misconduct.

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What kind of misconduct?

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It was misuse of drugs

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However, whether the second misconduct that was ultimately overturned was a part of that basis is unknown.

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Which second misconduct?

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The misconduct that was overturned at the NGP level for the cocaine drug, the cocaine use that was fabricated.

[00:02:45] Speaker 03:
Wait, wait, wait.

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You're confusing me.

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The actual, whatever document he got, removing him from military service, gave reasons for his removal.

[00:02:56] Speaker 03:
Yes, sir.

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And what did those include?

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They weren't specific, right?

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They were just narcotics used.

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Did they say marijuana use and cocaine use, or did they just say narcotics use?

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I've never seen it.

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I've never seen that document.

[00:03:11] Speaker 03:
You don't know his removal document?

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I mean, that's at the heart of this case.

[00:03:16] Speaker 00:
Well, the actual discharge proceedings, I've never seen that.

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The 214, the document that says, hey, look, you are out of the military now, it says misconduct based on drug abuse.

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That's what it says.

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And so what Mr. Jones' are.

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So what are you saying he found out later that he couldn't have challenged at the time?

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So the second cocaine discovery, the urinalysis, that was fabricated.

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He did not know that.

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He did not know that it was fabricated.

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He learned that when the BCNR pronounced their decision in 2017.

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What makes the difference?

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He knew whether he used cocaine or not.

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So if he thought he was being removed for cocaine use, and he knew he didn't use it, then he knew at the time.

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He didn't have to wait to find out that the test was fabricated, assuming that's true.

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He knew.

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I mean, he's not a legend that he was like somehow, you know,

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somebody slipped him cocaine and he didn't know about it, did he?

[00:04:26] Speaker 03:
No, Your Honor.

[00:04:27] Speaker 03:
Right?

[00:04:27] Speaker 03:
His argument is I didn't use cocaine and they removed me in part upon cocaine use, based upon an improper lab test.

[00:04:35] Speaker 00:
Yes, Your Honor.

[00:04:36] Speaker 03:
But he would have known that at the time.

[00:04:38] Speaker 03:
Yes, Your Honor, but he... He may not have known the fact of the improper lab test, but he certainly knew whether he took cocaine or not.

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

[00:04:46] Speaker 03:
Isn't that enough?

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For the sexual limitation, you just have to have all the relevant events for the accrual of the action.

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And the action is, I was removed, I believe the basis for it's improper, and that's it.

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He would have known at the time whether that removal was proper or not.

[00:05:06] Speaker 00:
And I think that it goes more not to looking at the specific events in a linear fashion, but rather looking overall at how this happened and whether the second cocaine, I'm sorry, not the cocaine use, but the fake cocaine results was a pretext to him being kicked out of the military.

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And so because he did not know of that potential pretext, then that changes the dynamics of this.

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And that's why he should get the benefit of relating back to when the BCNR came out and said, hey, look, this is what happened.

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And that's why he should get the benefit of that accrual suspension.

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I also wanted to talk about the half-the-loaf doctrine and how it's... But didn't he get here that would be the half-the-loaf doctrine?

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The Board of Corrections upgraded his record, which is what they wanted to do.

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What else that's necessarily implied by their decision that they didn't do?

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So the BCNR gave him what he wanted.

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So they gave him the full love?

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Well, they gave him what he asked for.

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However, on the discovery of this new information, this misconduct by the Navy.

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Have you gone back to the board and asked that his termination be voided and that he be given back pay?

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not yet, Your Honor, because Mr. Jones was aware of the limitations that were set for and the running clock that is present at the Court of Federal Claims.

[00:07:10] Speaker 03:
I mean, that seems like the proper use of the half-elope doctrine that they had

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ordered his removal voided but refused to give him back pay, then they didn't give him the full load.

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But all that he was asking for here was getting his discharge upgraded, and they gave him all of it.

[00:07:27] Speaker 00:
Yes, Your Honor, and I think that that would have been a process that Mr. Jones would have followed, have we stayed in the Court of Federal Claims, had the opportunity to state the case there, and then try to do further... Well, you can't state a case that's not within the statute of limitations.

[00:07:46] Speaker 00:
Yes, Your Honor.

[00:07:46] Speaker 03:
It's jurisdictional at the Court of Federal Claims.

[00:07:49] Speaker 03:
Yes, Your Honor, and so Mr. Jones... How is half the law of effect jurisdiction?

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How does it affect jurisdiction?

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It affects jurisdiction because the courts have looked at the or this court has looked at what petitioners are able to get from an administrative board and have related back to related the date back because of the because of the

[00:08:20] Speaker 03:
But again, that might make sense if what the board had done is overturn his termination.

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But they didn't.

[00:08:30] Speaker 00:
Yes, Your Honor.

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And that is the first step.

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The second step is on awareness now of... But the Board of Federal Claims lacks jurisdiction to consider the termination because you're time barred.

[00:08:44] Speaker 03:
I don't know what your situation is at the board, but you haven't asked them.

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overturn the termination yet, apparently.

[00:08:50] Speaker 00:
No, Your Honor.

[00:08:51] Speaker 03:
So you can't bootstrap a possibility of getting the board to do something and presuming that it lacked half a loaf in the jurisdiction of the Court of Federal Claims, can you?

[00:09:01] Speaker 00:
No, Your Honor.

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However, Mr. Jones takes the instruction from Martinez that speaks to, if you have some type of issue that you need the BCNR or the BCMR to take care of, then present it, if it's within the time limits, present it first to the Court of Federal Claim, stay it there, and then try and get that further relief from the BCNR or BCMR to inform the Court of Federal Claims.

[00:09:30] Speaker 03:
That does not seem to be my reading of Martinez, but do you have a current case of the BCNR asking for his termination to be?

[00:09:40] Speaker 03:
No, Your Honor.

[00:09:40] Speaker 03:
Well then, what would be, even if your reading of Martinez is correct, what basis would there be for the court to stay its case when there's nothing pending at the board?

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We were resolving this issue first, Your Honor, and then that is... So when we resolve this issue and agree that it was dismissed for lack of jurisdiction, then you can go to the board.

[00:10:03] Speaker 00:
Yes, Your Honor, Mr. Jones's preference would be for the court to reverse it, find the jurisdiction, and then allow that process to play out because of this newly discovered misconduct.

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And it is a factual circumstance that has not, from my understanding of the jurisprudence at the Court of Federal Claims and here at

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the Court of Appeal has never been addressed.

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What happens when there is a time bar and there is misconduct that is found out after that time bar?

[00:10:40] Speaker 03:
Well, if the misconduct has nothing to do with your client's knowledge of the relevant events that caused his cause of action to accrue, then the misconduct is irrelevant.

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I mean, this is basic horn book law.

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The time for statute of limitations to start running is when all the relevant events that form the basis of the cause of action are known or should have been known.

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And if you're challenging the termination, then it seems to me what you need to know is A, your client was terminated, which he surely knew, and B, the reasons for the termination.

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And what else is there for a cause of action to challenge an improper termination except those things?

[00:11:26] Speaker 00:
Yes, Your Honor.

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I think that there is a level of complexity, however, into viewing this case back in 1985 on that linear path.

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And I think that that's not kind of what happened here.

[00:11:44] Speaker 03:
The second... Are you saying your client didn't know why he was terminated or removed from the military?

[00:11:51] Speaker 00:
Yes, Your Honor.

[00:11:54] Speaker 00:
I'm saying that... So that form he got that actually affected his termination... He's aware of the 214.

[00:12:04] Speaker 03:
He is aware of the fact that it said... So he's aware of the military's reasons for terminating him.

[00:12:09] Speaker 03:
Yes, Your Honor.

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And if he had disagreed with them at the time and thought they were insufficient, what would have precluded him at the time from challenging them?

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Because he was not aware of this potential pretext of the- What's the potential pretext?

[00:12:26] Speaker 00:
The pretext was the false cocaine testing.

[00:12:32] Speaker 03:
In other words, the pretext that he was removed based upon cocaine usage that he knew he didn't do.

[00:12:40] Speaker 00:
Yes, Your Honor.

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But he knew when he was removed whether he did cocaine or not.

[00:12:45] Speaker 00:
Yes, Your Honor.

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And I think that what it comes down to is what is the basis of that discharge.

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So if the basis of that discharge was just purely the marijuana use, then obviously there's no reason to be here.

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However, if the basis was also that fraudulent cocaine use that we don't know all the answers to, then that changes the dynamic.

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And that's why this Court should look at that.

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I also want to briefly talk about the illegal taking, just to address the government's argument.

[00:13:24] Speaker 00:
Mr. Jones brings that forward as a vector for this court to consider jurisdiction and not yet on the merits.

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That's why it's coming forward on appeal.

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And I'm going to save my rebuttal.

[00:13:41] Speaker 02:
We will do that for you, Mr. Stansky.

[00:13:43] Speaker 02:
Thank you, Your Honor.

[00:13:49] Speaker 01:
Thank you, Your Honors.

[00:13:50] Speaker 01:
May it please the Court.

[00:13:52] Speaker 01:
I'll jump in to write to what Your Honor Justice Hughes was getting into.

[00:13:56] Speaker 03:
Thanks for the promotion.

[00:13:58] Speaker 01:
I'm sorry.

[00:13:59] Speaker 01:
Apologize for that.

[00:14:00] Speaker 03:
Or maybe not thanks.

[00:14:01] Speaker 03:
I'm not sure about that.

[00:14:03] Speaker 03:
I do have a question about the record and a little bit of a hypothetical.

[00:14:09] Speaker 03:
If it turns out, because I think that the document just says remove for narcotics use, right?

[00:14:15] Speaker 03:
It doesn't specify which.

[00:14:17] Speaker 01:
Well, his separation document isn't in the record, Your Honor.

[00:14:21] Speaker 01:
I have seen it.

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It says separation for use of THC.

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But it is not in the record.

[00:14:29] Speaker 03:
Right.

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Why isn't that in the record?

[00:14:32] Speaker 01:
Well, Your Honor, because his claim is long barred by the statute of limitations.

[00:14:39] Speaker 03:
Is there any suggestion that he actually was removed for this secret reason of cocaine usage?

[00:14:49] Speaker 01:
No, Your Honor.

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And the record actually does reflect that Mr. Jones knows, I think, that he wasn't removed for cocaine usage.

[00:14:55] Speaker 01:
I'm looking at page three of his brief.

[00:14:57] Speaker 03:
Would that be some basis if a formal record said removed for marijuana, but then there was other secret documents that were never given over to him that said,

[00:15:09] Speaker 03:
Look, we don't actually care very much about marijuana, but he also tested positive for cocaine, and we should get rid of him.

[00:15:17] Speaker 01:
No, Your Honor, I wouldn't.

[00:15:20] Speaker 01:
In this case... Why not?

[00:15:22] Speaker 03:
Because that seems to me a little bit close to they were... They're concealing their actual reasons for removal.

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And if he doesn't find out... I mean, again,

[00:15:32] Speaker 03:
Seems very implausible that that would happen if he actually does positive for cocaine.

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That's a much more serious drug offense than marijuana usage, and so presumably they would have removed him for that too.

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But if they conceal the basis for the removal, isn't that precisely what the accrual suspension rule is for?

[00:15:52] Speaker 01:
No, it's not, Your Honor.

[00:15:53] Speaker 01:
Not when we're dealing with Section 2501.

[00:15:55] Speaker 01:
In this case, what we're dealing with is when his claim accrued and in a military pay case that is on the date of discharge.

[00:16:02] Speaker 01:
And even if there was intentional misconduct, even if we assume that to be true, that doesn't matter.

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So because what causes the claim to accrue is the removal.

[00:16:13] Speaker 01:
Absolutely.

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And if he wants to challenge it and say this removal is wrong,

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he can do it, and presumably can get discovery into issues if he thinks it was unfair or is not sure what the reason is.

[00:16:25] Speaker 01:
Absolutely.

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In this case, what he's alleging is that his discharge was wrongful.

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And so the monetary claim here, what gives jurisdiction to the Court of Federal Claims, if they had it, is his claim for back pay, his wrongful discharge.

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That accrued on September 13th, 1985 when he was discharged.

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So regardless of intentional misconduct later, he knew of his injury.

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He knew on July 2nd when he was allegedly charged with fabricated cocaine charges when his injury was.

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So the accrual suspension doctrine wouldn't save him.

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Likewise, the half the legal loaf doctrine wasn't safe in here.

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As Your Honor hinted at to my colleague, he was given the full legal loaf.

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He asked for a discharge upgrade, and that is exactly what he got.

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And that's because his client was diagnosed with PTSD.

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And so the board found that while his diagnosis mitigated his misconduct, it did not condone his misconduct.

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The board did not find that the Navy committed any fraudulent acts.

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He did not ask that the board overturn his conviction or for monetary pay.

[00:17:20] Speaker 03:
legally that would prevent them from going back to the board again and saying but you know in hindsight marijuana usage really was ongoing and shouldn't have been a basis and correct and give me the full upgrade.

[00:17:34] Speaker 01:
No, Your Honor, he can go back to the board.

[00:17:36] Speaker 01:
And it is worth pointing out that in this case, because his discharge was upgraded, he can actually go to the board and ask for potentially disability benefits.

[00:17:43] Speaker 01:
So he isn't totally left without any kind of remedy or recourse in this case.

[00:17:47] Speaker 01:
The military has obviously recognized that a PTSD diagnosis should mitigate certain misconduct.

[00:17:52] Speaker 03:
Does the upgrade to the general discharge clear any bar that he would have had from getting VA benefits?

[00:17:59] Speaker 01:
Yes, it does.

[00:17:59] Speaker 01:
So now he can go get VA benefits in this case.

[00:18:02] Speaker 01:
He would have to show that he is entitled to those benefits.

[00:18:06] Speaker 01:
But yes, he can apply.

[00:18:07] Speaker 01:
And there's nothing barring him from applying for that.

[00:18:08] Speaker 02:
So his discharge was upgraded, but it was still a discharge.

[00:18:13] Speaker 01:
Yes.

[00:18:14] Speaker 02:
That occurred 33 months after he was discharged, before his appeal.

[00:18:19] Speaker 01:
Absolutely, yes, your honor.

[00:18:21] Speaker 01:
He was given an upgrade, but his discharge date remained the same.

[00:18:23] Speaker 01:
The board did not overturn his discharge.

[00:18:25] Speaker 01:
And it explicitly says on appendix 31 and 32 that it does not condone his misconduct.

[00:18:30] Speaker 01:
So it did note that while we do not condone what you did, we do think your discharge should be upgraded.

[00:18:35] Speaker 01:
So it does entitle him to go try and get VA benefits in this case.

[00:18:40] Speaker 01:
And I just want to point out that the takings claim is not properly before this court because it is raised for the first time on appeal and is therefore waived and his taking claim is also barred by the statute of limitations like his taking claim.

[00:18:52] Speaker 01:
And if Your Honors don't have any more questions for me, we request for those reasons that this court affirm the trial court's decision.

[00:18:58] Speaker 01:
Thank you, Your Honors.

[00:18:59] Speaker 02:
Thank you, Counsel.

[00:19:00] Speaker 02:
Mr. Stansky has some rebuttal time.

[00:19:03] Speaker 00:
Your Honor, I'm going to waive my rebuttal.

[00:19:04] Speaker 02:
Fine.

[00:19:05] Speaker 02:
Thank you.

[00:19:06] Speaker 02:
The case is submitted.