manifest injustice has been done to mr pipes through no fault of his own can it's just you kind of a housekeeping question which is the parameters of the relief you're seeking here because i mean in the  federal class opinion they talk about various things that your client has asked for it and it's five or it's i mean my initial impression we were just talking about disability retirement and there are other things that are will be questioned at least active duty in order to separate him so what we're asking this court is to take to order him to order that he was in an active duty training he was injured in the line is what about it what she indicates you asked for is to be and be reimbursed for all medical bills from the effective date of the permanent retirement which you're acting when asked for retroactively and be placed on active duty orders and afford him an opportunity to rent he should have been retired on disability in september two thousand and six that the return to active duty is something that has to be done in order to do the rest to an honor to effect the order of this court to see have if we were to retroactively assign permanent disability do we have to retroactively in order to reach that conclusion we have to a clue that he was on some sort of an active duty status yes and under what we've been able to discern from some of the stuff that we've gotten  records that would have required that he got paid for that period of time or got points for that period of time do you agree or disagree completely disagree with that the pain point that pardon me for an active duty turning right and be is also for an active duty training but you do not need to be paid if you look at the other statutes that are clickable and air force regulations that are a with ten u s c want to one d seven a which is in active duty training perscribe for the reserve by the secretary concerned under section two hundred and six of title thirty seven that is regular and active duty training u s weekend warriors the two weeks of duty they have to do what we are concerned with is section b which is not the same a section a all of the authority shows that you can and that the doing in active duty one he's not asking for pay for that period of time off point and your point seems not of these not making that contention he's saying that he was in an active duty status because he was ordered under an invalid f i to participate in the believe it is a valid order because the f b i under which she was ordered to run ok that's ten scuse me ten to four to dash to forty eight is a valid air force instruction that valid air force instruction required mr pipes at a minimum to exercise three times a week but because he had failed his fitness exam four times they enrolled him in this program he could not not be enrolled if he decided he wasn't going to do it he could have been involuntarily and administratively removed from the air force and let me ask if he let's just let's take up this f s f ip and just assume that what you see cutting up what you said mid way which is if exam his fitness exam for chives at some point i don't know what it is some point he gets he's not allowed to continue in the reserves right i mean what's the limit to how many times you can feel it necessary i don't know about the reserves back in that period of time a little historical context might be helpful now days i don't believe people would be allowed to fail it four times back then they'd be out yes ok well let me they just go on if they get ordered if he failed it four times and his supervisor somebody in the chain of command said you know you're going to be out unless you do enough exercise to get yourself fit so you better do enough exercise to get yourself it is that this is that coupled with this case of order by someone to get yourself in shape in order to be able to pass the exam i think that's too broadly written that the government also things were saying anybody out there playing ok what i was that too probably so what  reading you would give to the karada screeding is somebody that was ordered pursuant to this f i to enroll in a fitness program and exercise five days a week filling out forms that prove that you were doing it and failing to fill out the forms they went to do the exercise gets you administratively separated or filling them out doing the exercise and still failing can get you separated it's not the same as saying i think you ought to pay pick up basketball on the weekends to maintain your fitness which is not what this is every reservist and every member of the military must maintain that innes we're not arguing that just being out there maintaining your fitness means you're on an active duty status we are saying that under the program that was in effect at the time that came into existence post nine hundred and eleven and that's why i came into existence the air force determined after nine hundred and eleven that i he suffered his ailment in two thousand and six dismantles were two years he was undergoing this fitness program were it would he have a fitness exam during the interim period i don't recall what it they he was doing the three times a week which is what everybody was required to do but because of his failures they increased it to five days but when you say three times a week what everybody was required to do everybody in the role in the reserves in the reserves were required to be fit and to exercise he was required to do it five times a week so why is that what what is the is the is in rolling in this program a limiting principle because what if you say it would seems like you're suggesting it was clear that he had to in order to pass the fitness thing he upped from running three times a week to five times a week so if the supervisor said to him you know you feel for tie ins you better be running five times a week are you not going to be able to get your exertion level up enough to pass this exam leaving aside this s f i p program and enrollment in that is that sufficient to put him in a position where you would say he would cut should be covered depending on the context i think so that isn't the context of this case but i believe that that's possible so it's not about the program itself it's about an order requirement by someone that he do any exercise or a certain amount of exercise like the difference between running three times a week and five times a week what are the limiting principle see the limiting  principles use your words are that he was ordered to do the exercises five times a week or be under the penalty of separation from the air force for failure to comply with the valid order under the age of five his commander  and there's no doors no question in the soil he didn't run for if he didn't comply with that what you call an order he would if he didn't pass his fitness exam he would have been removed right correct and so this was the air force effort to correct his fitness levels but unbeknownst to him the issue wasn't really his fitness he had an underlying what about it hadn't exactly in order to do it but if his supervisor had said to him you know the fact is that if you don't end right and run five you've got two choices here either you run five times a week or it's clear you're not going to pass your fitness exam in you're going to be removed those are your two choices is that enough to be an order that would compel him to be on in your view active enough to duty status put that way i don't believe it would because what's the difference between that and that because you're suggesting in your scenario that he's giving him a suggestion that hey i think that it's possible you have choices a are or you're traces what it's kind of a constructive thing if you don't feel if you don't follow this order we all know you're going to be removed because you're not going to be able to pass your fitness test i still think there's a distinction there between being ordered under a valid if i that says you must do this versus we know what you're going to get what's going to happen to you is what you're saying we know what's going to happen to you should you fail to follow what i'm suggesting i ask a clarifying question just now i just don't want you to leave the record of this oral argument without making this clear for me you distinguish between three times a week and five times a week it's my understanding that mr pipe was ordered to do these exercises five times a week i don't see any evidence in this record that everyone else was ordered to do it three times a week i understand that the document suggests that reservists do it three times a week but your distinction that you've made it seems to me is between someone being ordered where they really have no choice but to comply and a recommendation that is correct is that correct so that is greg you're not suggesting that everyone else every other reservist was ordered to do this exercise three times a week that could in fact be a problem if everyone if he was ordered to do it three times a week and had a stroke you'd probably be here still right correct the issue is the order the reservists as right group had an issue with their fitness post nine even when they're purely civilian such as refraining from drug use or you you say vast because you believe he was in an idea to press circular and now the argument gets all circular as to staff because you seem to me that the government had a pretty good argument that if you were not in duty status you couldn't be ordered to not on duty status so we argue just like what occurred in wake and in the other cases we cite wakin brown extent are up because he was doing activities pair the other reserves don't that do not have fitness issues and his was a valid health issue but others who do not have this issues aren't filling out forms proving that they're running or if this was purely volunteer  to the order of his commander to exercise five times a week the forty and the aft man those forms they have absolutely nothing to do with section b of the statute those how do we know that the factor you just said for service in or and they accumulate a certain number of points and that gets credited to their that gets credited to their service commitments such that when they retire in other circumstances  which is simply not on point if you look at the other for federal circuit cases that we've heard get a nd sort of get i'm sorry can you i because i missed getting taking it down what are the statutory of the regulatory sites that you were giving us members to work without pay during a time when the government shut down and provide voluntary services the section b speaks to voluntary services voluntary means without taking the statute itself is very clear on its face that side in their own section incorrectly and you made an argument there that was reflected in the board opinion or stating your views as to why they were material differences between the two and the board concluded disagreed with you and said there were no material the court the trial court crackly held that mr pipes was not on active duty training when he suffered a stroke twelve hours after his self drafted running with so we're obviously having some concerns here and one of them it seems to me  you have other arguments you can throw them out here but the main argument by the government seems to be that he wasn't required to comply with them on lawful order and this was an unlawful order st there's no dispute that he was ordered or told by his supervised several supervisory weyers to do this what's the rules there i mean there's your friend said on the other side he he's ordered to do something he takes that as an order is he supposed to grieve that order or violate that order a minute judy kate whether or not it was lawful or unlawful there's there stuff all different things that mr pipes could have done why he could have  the order as as your honor stated also because the order on its face was not lawful requiring him to perform duties outside of his on duty time and he could have validly ignored that worker and it was not a face this was an unlawful order he chose to disagree and it was later determined to be lawful he could be punished here the order itself saying perform something off duty for what she will receive no pay or points was by its nature gianna and not which is why the order itself at that point if if mr pipes was ordered to do something during his id t time and he disobeyed that order thank you would certainly be subject to punish and thirty one dollars d whatever it says any additional special additional duties authorized by reserve component personnel by the secretary concerned and perform them in connection with prescribed activities with the time without pay or clients then that does run afoul of the anti deficiency act and there would be certainly many more claims under perhaps the th amendment because you are ordering people into involuntary servitude for an indefinite period of time correctly held and none of the order supposedly given to mr pipes does not fit into any of these judy is that when you continue going through i d c authorisation there must be the form forty that would be if for example if there is a form forty eight dollars filled out for a four period four hour period of time that the training that was required that would be a special additional duty and the training could be for anything as clarify are you saying that this would be a special additional duty that he had to run five times a week if if there had simply been a build out if that before that this could be considered special additional duty and if i if i may direct the court under one thousand and seventeen d seven a those duties prescribed for reserves by the secretary under section two are six of title thirty seven and the trial courts explain what those studios are what we all are referring to is be under the special additional duties which are those five items set forth by the i respect to form forty eight at panix page forty six it requires the reservists signature of the authorizing official and the official signature and i do not know your honor if  supervisor was both authorizing official and the official will do you know a common practices i mean this this kind of thing must have been numerous times every day we got a lot of research vests and a lot of people need to be fit to be called up for duty so are they are these people generally as far as you know not getting paid for the time in which they do their exercises and their fitness training that is correct your honor they are paced fitness improvement plan is voluntary and has never been i d d that this is and what about the forms that he filled oh can you give me oh it was written was he required to fill out certain forms of the completion of the training period he was he was filling out the forms i don't know if they were required to be filled out when he was at in his monthly time when he was on jewels and that's probative i mean if he was required to fill out certain forms so at least i use soon the government would concede that the time he was filling out the required forms would have been sort of duty status and again your honor that it goes back to whether there was the form forty ag and whether this was for pay or points and there's no indication whatsoever that there was pay or points or that the fs form was told out can i ask you what happened so what would happen and this is what we talked about earl in your argument these folks order him to do this he goes to that he refuses to do it you don't fill up the forms you tell him no i'm not doing it or they quietly said he hasn't done what step two so if if that is one of them your honor ok ok so what happened tell me what happens i mean he says no i'm not going to do it and somebody bring charges against him i mean he's not following an order we said if we're going to parse out at some point refuses to do so that is punishable if he shows up without the forms there is no punishment because he was never wofully ordered to fill those out when he was off duty and so that is that is the distinction where actually ordered by their commanding officer to participate in s f i because he was ordered your question your response is it wasn't a lawful order to you have any sense of whether it's such a more awful orders are regular in the military i do not have a s because it is generally understood and required that everyone must be an asp as a whole shape and so if somebody for instance so you say does that mean that this case probably doesn't repeat itself very often that this is a one off or an unusual scenario either because he failed so many times and therefore it's unlikely you'd end up in the situation or unusual because it's not normal for commanders to issue d a lawful orders there's no question he was ordered you're saying it was unlawful it apart from a few good men and it seems and jack nicholas of which i would do a little demonstration for you my court already seen it but i'll push that aside because i don't want this case not to seem as serious as it really is but i mean apart from that sort of thing i mean i i guess what i'm troubled by is your argument is that all lawful order and i want to know is is this the kind of thing that you think happens all the time so it's really important for him not to get his compensation here because otherwise there's going to be a long line out the door of lots of people who have been unlawfully ordered or are you saying this is an unusual situation in which case maybe we can look at it through an unusual lens in assessing what to do i want to know how often these unlawful orders are being  d i don't have an exact answer to that your honor i can say however that i'm sure it is not uncommon for someone's commander to say you need to get in shape work out there's a difference he says this was in writing and he said it was oral and he says that he was ordered to do this five times a week to run five times a week and then the doctor said get out and run after taking his blood pressure recognizing he had hypertension and then sent him out to run so there's no doubt this kid at least on the records we have in front of us ordered to do just this wasn't he might want to hear a little more exercise in order to pass your physical he was ordered to do specific exercise at least that's the record we have in front of us as of now you may be able dispute whether that's correct at a later point but what we have in front of us now is he was ordered to do this expression he and specifically as she will whether there are numerous instances of being ordered specifically to participate and stuff ip which i will point the court to appendix page one hundred and three dollars which is presumably the type of written order that mr pipes is referring to which contains no indication of the amount of time record in front of us this is not the document that ordered him the record in front of us which is undisputed by the government as he was ordered to run five times a week and it was you push ups and unlawful order yes you are there and so what i'm trying to get at because i'm very confused  about whether is are lots of orders like this being given to reservists or was it only mr white and i don't have an answer to that question your honor at all indications in the record show that a five he is a voluntary recommended activity i do not know to what extent there are other commanders who have given verbal orders in the way that mr pipes as commander states he was he gave mr pipes in order to perform these activities i i will also note that mr pipes at no point in that should be years of time attempted to get a form forty eight dollars fell out or attempted to obtain points or pay for presumably an exercise he was ordered to pinpoint that correct he can waive points right he doesn't have to take them i do not believe he can waive points because then that gets into the anti deficiency act concerned that he is being completely direct memory of these programs and that could be the magic word versus order or it could be that the commander considers himself to be giving an order rather than a recommendation or direction but in fact he was giving a recommendation or direction duty as a reservist other than that you would say there is no class of orders that could be lawfully issued to a reservist and not on duty status unless you are churning and should be an active duty status for those special provision towards a person like mr pipes with regard to this but this issue so if they had put him into a ship and everybody agreed it was a legit accordion and it constituted statutory was a medical opinion but i mean the problem here seems to have risen because he probably shouldn't have been doing this running under medical care that was some doctor observations that confirmed he should not been but yet he did it did as a government have any comment on what went down in that scenario with respect to the medical advisors opinion it appears that there was there were indications that mr pipes had high blood pressure whether that was the result of other medication he was taking or not that mr pipes his personal physician recommended that he go on to blood pressure medication he was not put on to it certainly is unfortunate that he was some there was some government medical guy who was checking people love before the undergo uk this very strenuous exercise program i believe yes there is certainly a medical evaluation  registered him as having extraordinarily high blood pressure according to the doctor's notes correct there when there were indications that yes he had high blood pressure and  do something in civilian status under the federal tort claims act the government down the street in the district court would be arguing that farrah's bars his claim because he was incident to service when he was injured i e had the stroke he can't have it both ways either he was doing something that he was ordered to do or he wasn't so if we look at it from the f perspective there is clear malpractise the government admits it dr carson the the air force board a doctor says that the air force did do less than desirable medical treatment of th individual but what about the pointer pay argument the government has made but what about i mean the government insists that since there were no points or pay associated with this this cannot ever qualify as an active duty change that they're just flatly wrong look at the other cases where where federal circuit courts of appeals have found people to be in active duty status or an active duty training where they were being paid where they were in car accidents when they were purely civilians when you doing physical fitness training where they're having heart attacks when they're in between duty statuses all of those cases in the seconds in the th circuit in the court of claims don't require these individuals to be getting paid for a and they said but for the order but for the military status the injury wouldn't have occurred if you weren't in the car going to take a test to be or to be unable aviator you wouldn't have been in a car accident but for the order to serve as acting for the colonel you wouldn't have had a heart attack and you wouldn't have been there but for being ordered to passive wellness these were all lawful orders  out of you know sort of not related questions but for my own edification what's going on here and you may even have the answers he's getting we've all heard and it's in the record that he's getting this disability claims from the v a and he's getting payment for a claim there is there some sort of offset if he were to if he were to obtain disability retirement is all of that stuff cumulative and what complaining gets or is there offsets for those sorts i believe there's some sort offset for the disability the v a the v a compensation is one thing the disability military disability retirement is substantially more money in title some to are annual assessment or some sort of assessment as to your ability to go to work or to and to obtain employment i do not believe it's the same as the civilians further c s r s disability retirement system where those individuals have to annually or as requested by o p m certified they are physically unable to perform the essential functions of the job once the military resign retires you and says you are not capable of performing military service your of you