february two thousand and ten doctors some good completed nearly five years of a five year surgical residency he successfully completed every rotation including highly regarded in their residency program training and then out of the blue in february of two thousand and ten charges were brought against him by two senior surgeons atripl alleging the doctor's son had failed to perform some examination of a patient and then when asked about it had lied to them about what he had done or failed to do and they were recommending based largely on the fact info he'd been dishonest that action and that was when i became first involved and we went to the g man proceeding and we had a contested evidentiary hearing at which a number of other doctors and amazingly a number of other residents hostile environment and secondly that these senior surgeons who were used to having their way continued with their hostility and that underlay the second proceed that one of the results of the bad other first proceeding was that it was recommended that dr sung be allowed to complete his residency at some other location but the army is a very small community he could not find another military residency program willing to accept him although there were civilian residency then occurred a couple of months later after the first proceeding judge dr sun was on probation he successfully completed the probationary period but then in august of two thousand and ten he suffered depressive episode and that was brought on one because of the continuing tensions in the program where he was returned to work at tripler and two and that is in the record because his wife had recently accepted a job in australia he was going back and forth to see her in the travel cause some physical problems which resulted in the depression he was relieved of his clinical duties no problem with that decision in order to obtain treatment commander rep to treatment for his depressive disorder which he did however during that period of time these same surgeons who had gone after him the first time decided that they didn't want him to be back and to be allowed to complete the program mind you twenty five or thirty surgeries which he just had to participate in and signed off of and so they initiated the second proceeding and if you look i've cited in my brief conclusions that were reached by the board for question of military records here summarizing the record here at page ten of my brief but basically what they said was that the available evidence indicates that the applicant was and to go want to serve as an army surgeon and that was a leap from the record which is not based upon any evidence whatsoever indeed the only evidence on the record from the two psychiatry's who testified was that he w responding well he was eligible to return to his clinical responsibilities and there was no reason those doctors thought that he couldn't perform in the field as an army surgeon if allowed to complete the program  there's been a question raised and counsel and i have discussed this about whether or not the case is moot at this point because of the fact that doctors uncompleted his obligation to the army he was deployed to turkey know as a medical officer and he recently resigned his commission may of this year after fulfilling his obligations by the way as a major he was promoted it's not because he still wants to be a s and he can't get into another surgical residency program with this mark of having been dismissed from a surgical residency and he can't take the boards unless he finishes a surgical residency and no hospital will give surgical privileges no insurance company will give him malpractise insurance he can't work as a surgeon scuse me i think you may be a little but outside the record you may be right an m p i was concerned about whether what the status of his leaving the army is going to end up in and it's certainly an issue and i can see his point if if he has this money shot him medical facilities are not forgiving on those things but you beginning to get into something that has not in the record i suppose the issue before us is whether his leaving the army moves this case yes that's a good read by mr helper and i don't think there's any argument any reasonable argument that it does as it is you know you have discussed this with your adversary i take it your adversary may be taking an opposite position he will express himself i've told him he's certainly free to do so in the letter that you received in the record was the product of a joint discussion that we have i have no problem bringing this to the attention of the court but i don't think it is an issue and if it is if it is an issue then it ought to be remained it for determination so that we can expand the record determination that this was not an academic decision everybody who raises and addresses that issue just basically clamps that on this whole procedure and in this record permit us to decide whether because you cannot find any feel you are of this young man to perform an academic task the only evidence of his inability to perform was his major depression now i'm arguing at length that there were procedures for the army to follow and if a thought that he was disabled i don't argue that they should have followed those procedures but what happened here was that the ignore the normal course for attempting to deal with somebody who is impaired and they basically said this is an academic decision and therefore it's unreviewable and i would hope that this court would determine based upon that record that that is a wrong conclusion there are no facts to support that conclusion and therefore the case should be remanded for appropriate relief and one form of that appropriate relief that could be taken would be a joy allow him to continue and finish his residency mind you he only had to complete a certain number of surgeries because there's a numerical number that's required in order to be eligible for the boards can he do that having resigned any do that yes he can there are a number of different ways that he could do that but again we could explore that with the district court you know when this case came up of course it goes into the mediation program would beg the harley to be with us we were not able to get anybody to agree this is not a problem there was without a solution and there are lots of other facts in terms of his his service in the five years since this case first was brought up and the conditions of his service and his medical condition all of which could contribute i think quite productively to obtaining a resolution of this case but it can't be resolved in its present position because of the fact that the already still maintains that he is unsuitable to serve as a surgeon and that's the language that was adopted by the board for pression of medical of military records i think that was a little more than  not be able to to function under the pressures of being deployed to a war zone i'm not i'm not correcting you to to to correct you but if you're going to get affected live then you have to talk to us about what we know  in the wreckage at all i understand but that was that was completely speculative and there was no medical evidence for that and that testimony was given by surgeons not saying contras in fact when one of the psychiatrists was asked have you ever had the experience in the field in deployment with doctors who become depressed i'm not suggesting we're going to decide it you are arguing a point and i wanted you to argue the point that is made in the record rather than the point that you think my care the most i appreciate it but even i get that there is nothing in the record factually to support that conclusion which is the linchpin for this case that this was an academic decision it was not duty and at the end he says mile vacations are program directors to ensure that the president has demonstrated sufficient competence to enter practice without direct supervision are you saying that that's not the relevant criteri that that's what i'm confused about because it seems to me if that's what he needed to demonstrate people definitely did not or at least we couldn't say that the decision makers decision here was arbitrary and capricious in saying that he had so or you say that's just the wrong question to ask you know that is an absolute correct question and i've seen it come up in many cases similar to this where there are issues about competence to complete a residency program but although that's the question the answer to that question wasn't there was no evidence that he wasn't competent because he'd been doing it for five years until he became depressed so the evidence of his obvious need for supervision was based solely upon these couple of months where he had been suffering from a depressive disorder and by the time the case went before the gene back where the actual evidentiary record was comprised there was no evidence that he needed any different or additional supervision than any other person who was at the end of his five year residency not and that's why i say we have conclusory statements in answer to these issues but no evidence how he bought the surgery had he failed to show up for a while the reason this memo was drafted is that he failed to show up for that conference i don't remember the name guess what what prompted the need for that conference but the he failed to show this which were regular conferences about cases and about assignments and so forth he failed to show up because he was sleeping told her why he failed to show up why was the conference what was going to be discussed i guess i think these were regular staff conferences for evaluation and planning purposes and he as the chief resident was responsible for supervising all the other residents and he didn't make it to that conference because he overslept but as i said that has nothing to do with his competence as a surgeon that's why i was asking why the conference was deemed so important was his conduct as a surgeon going to be the subject of that conference ok that's one of us not that i'm aware of his daily routines so if there are no further questions of the conference suggests that's why i asked the question i was surprised to hear that now this is just sort of a routine thing that you know so was there something specific that involved the conduct of the doctor leave that there was testimony to that effect that was  were granted relief could he sort of be reinstated to finish the program in the army and he said oh sure i am not aware of anything that would allow that size but if he wants is a notation in his record to be changed you know if if if you look at the a b c our decision what they decide what issue they identify is whether his record should be corrected as opposed to whether he should be reinstated into the program so i think that really is a problem with one of the the issue isn't what you two agreed to is whether or not we have jurisdiction so i think we're trying to find out now is this enough an issue that we needed to have briefing on it by the parties and we're trying to find out a little bit about what is the nature of this issue while it might be moot israeli difficulty at all from an organizational point of view that the army could not change the record if it chooses to do so and to further that he was continued in the program in good standing or something to that effect and that would allow him as your client mentioned to then be able to go to other i don't know i don't know what the effect  isn't a decision out of the dream act there's a hearing there's a bunch of evidence and there's a result but there's no explanation as to what factors they consider why people voted various ways so there's really nothing the in this court that there is not one haitian to identify in this court what exactly the wrong decision was below and by focusing pretty much exclusively on what happened t the decision of the a b c m r and the attendant advisory opinion from the army surgeon general i think that counsel or the doctor sometimes as waive that issue let's say we disagree with you in the dock filed with at any point in the process from september on saying anything about this conflict with the record show is that the army took affirmative steps to separate administrative agencies yes you otherwise i think one of the doctors of the otherwise has the capability it's just that it's that he's not on one hundred percent of the time which you obviously need to be to be deployed as a surgeon so he admitted you know right now exactly he admitted that so i went the right solution the to say come back when you're ready and when you are able to get one hundred percent not that you're you're sort of never going to be able to to be a surgeon but that would certainly they could have made that decision that would have been in the discretion but they also had bro program the testimony of the treating psychiatry isps was limited to his ability his medical ability to continue in the program a matter of fact i think dr morris said i don't even know what the sub standards are  kind of an all park estimate as to the likelihood or the frequency and it was discussed at the hearing that one of the problems was that in the last episode of depression  march when he was on probation he said according to the record doctor some sort of court with a record that he would recognize the next time around and be able to head off any problems and then he didn't and so we had the 's what i guess i'm focusing on i mean maybe the reason your opponent gave a long wind up was to suggest that there are we can peg the causes for what triggers these episodes part of it maybe was the fault of the workplace and other things but i don't we don't normally think of that as being something that is just going to remain with you for the rest your life and sorry you were just disqualified from entering this particular profession forever will wasn't that wasn't decision decision was you can't continue in this program you're not we're not going to allow you we're not going to put you in a position to deploy to go to a military busy training center where you're going to be under stress and i think dr sung both in the september second quite reasonably decided that that's not an option to look at but so maybe i just don't understand how this program works is it set up such that at the point in time where he's in the very last year of residency the question becomes are you ready right now to basically be deployed without serp supervision as a surgeon and either you are able to demonstrate that in the moment right now and you go forward or if you can't for whatever reason you're you're just not going to be able to finish  actually i think if you know the court i'm sure the the team extended his probationary period on one occasion and i would assume they could have extended again or he i don't know why i don't know why they couldn't so that would be within the very doctor saw a real struggle to try to wrestle with these issues and good face and they decided that in fact he should not be a surgeon but he he was perfectly capable of being a implied or did something and that this really came up because there was two doctors who were mad to disquiet and i had not heard that before is there anything in the record that was before the district court on that issue you know well i believe the allegation that there was a hostile work environment was raised on the first go around  march provision i don't recall there being any argument that that hostility carried over explicitly into september process and certainly there's no evidence in the record below  us a minute for about what you were going to the last question there was lots of evidence in the record because the person who brought the charges against my client the first time around was a doctor galliano if you look at the transcript of the own that's a finding it's not allegation and then the perpetrator of that hostile environment you mean there's a to see there's a finding in the record that these two doctors created a hostile working environment absolutely  where would i find that finding you would find that in all of the pleadings in which we reference and also in the board for correction of military records record in which they reference the first g m e c which found a hostile environment and how did the district judge handle that issue that wasn't addressed was in the pleadings but it wasn't addressed wasn't there a hearing before the district court argument no evidence and did you argue the issue in a district co and what did the district court judge decide that the district court basically ignored that issue and said as the board for gretsch of military records ultimately had said that this was an academic decision and none of those other matters had any bearing on the ultimate conclusion that this was an academic decision which the board for correction military records was entitled to make without review based upon the records that have been compiled by the  the that's the way in which the record comes to you and before the district court could you ask for a finding yes and the district judge said what about your request for an actual finding the district the district judge entered summary judgment basically saying that there was no dispute is was an act of this fourth he was concerned there were no issues of material fact bearing upon the characterization of this decision as an academic decision and therefore the court had to give deference to its deference to that decision but let me just if i could  i want to respond one more time at least to your other question judge wells regarding the meeting that occurred i guess i'm sorry it was judge walker the meeting that my client thank you i'm i'm i am honored i've been doing this for forty years i don't know whether to recall in any event the meeting that my client missed was not a meeting in which any of his faults or shortcomings were an issue if there were issues about other cases that is the kind of meeting he certainly should have attended but there was never any implication that he failed in any of his physician responsibilities other than attending a meeting but this wasn't i mean the response to his feel your show tho suggest that it was a more important meeting than your characterize well that was their response i agree with you but again i also concur with the remarks that were made to mr helper that this is an instead of the could have been handled and i believe should have been handled vastly different manner other than to dismiss him from the program the last thing i wanted to say is that when he was dismissed from the program he didn't have the option to go out and enroll in another residency program he might have been able to do that but he didn't have that option because he had over five years to the military and so they immediately deployed and deployed him to korea which is basically as close to a war zone as you can get where you are by the d m z and he was in a very tense situation there and in turkey where he performed not as a surgeon but as a medical officer and performed in a very distinguished manner so in our view this is very predictable there's an enormous amount of dishonesty in this record and it's a tragedy for this young man who actually perform for five years in an exemplary manner lastly he's so right that yes but the record is there judge farris the record is there i believe it i and let me just this is it have to be true your last point yes it is truly my last point he was extended his residency was extended because he had been on probation and relieved of his clinical responsibilities in conjunction with the first g mac proceeding and it was during that extension period that the second episode occur had he not been subjected to charges of which he was cleared he would have graduated ok thank you very much