veteran in the v a system and to the statutory definition of detainment under thirty eight u s c one zero one thirty two this case was hobbled from the start by the are as negligence that negligence can be seen clearly at appendix honor there's no minimum to a time period set for detainment in the statute he was held at gunpoint by three german soldiers for one hour and then he does behind a tree as they fired at him he was on the field of battle for realty resister to his cape this was this was really conflict wasn't a brotherhood in prison we don't think was conflict because he was unarmed he was unarmed at point blank range with three german soldiers when he broke away we believe he was an escaped prisoner not combat because he wasn't there was no combat there is no conflict because he was unarm d those four documents are the district administrative decision the statement case issued the statement case decision and the v c a notice in each one told me that he had to prove comparability of circumstances and of course that was incorrect the people who have to prove comparability of circumstances are those detained in peacetime or those to be deep trained in wartime by not enemy forces before he was grabbed what time by german forces this was not a collateral issue this was the very c very essence by which nick bernie's case would be judged to be bernie confused by the r o's insistence that this control so at two conferences just a month before his board hearing and that those conferences he raises eighty eight stipulations with the o the r o agreed to fifty stipulations three of those stipulations clearly stated that mcburney was was detained by enemy forces during wartime the bernie's intent of course in getting the stipulations was to wall of attack just to make sure that the r o would not be using thirty two a day for its reasoning the intent of the r o in gauging the stipulations is a bit more problematic perhaps they were hoping the veteran s prepare his case in a in a professional and well thought out manner but a collateral issue arises why would the aro director and the attorney who participated in the stipulations why would they participate in second different yes your honor we submitted two sets of stipulations in the porro responded with two sets of answers and you can see the r o z answers are simply yes or no or unknown well but the document on page fifty five has what appears to be a different time type one printing the one hundred fifty two and the reason i raised this is one of the age fifty two fifty three and fifty four is not signed and has no name even of any page fifty two and how would we know the arrow prepared that documents you're correct in that there was no indication of signature we would argue that that's not necessary but also we would say that we can't make a fact finding who prepared it and  and i'm sure you'd like to say everyone but before you do that i caution you certainly in the government contracts area it was i i learned to my surprise that apparent authority can't bind the government so even if a government employee believes he himself has authority to authorize an adjustment to a government contract if it turns out he didn't and even if he thought he did represent if he did and everything else so that the contractor was you know through no fault  was what concerns me about the case that as we cut through all of the points that you're making which seem to me to be quite valid in terms of the relationship this show we still get back to the yes your honor the only issue given that he pretty was seized and what time and by enemy forces the only issue is whether he was detained and i'm going to get to that in mice my second point that the definition of detain i can cut to that now if you prefer you're right i think it would be helpful sure it is you know certificates of course in examining the statutory definition of detained we'd argue initially that the stipulations covered this matter so resort to dictionaries or congressional intent is not necessary however in the bord ruling regarding dictate between meant the board looked at two different dictionary definitions and discarded both saying that they were applicable to mcburney situation and they weren't applicable to general combat situations  the court in reviewing the board's decision the court focused extensively on internment as opposed to detainment and we would argue that was irrelevant because under the statute the thirty two way you can be interned or detained and the board considered dictionary definitions in it sorry the court considered deck dictionary definitions and it too felt that they were not applicable or didn't in compass battlefield situations so it's our belief  construct a definition of its own and know that your point earlier that there's no strict time limit behind the definition of detained is this obviously a spectrum or and one almost falls off one into the spectrum heap one hour during which there was a struggle just just doesn't sound like being a prisoner of mcburney was ordered to drop his weapon he crossed the field to take the surrender of three armed german soldiers who were not flying a white flag he said i'm here to take you prisoner they said no we're not going to be your prisoner your our prisoner and they pointed their guns at him and i would argue at considered the the issues that we'd say it would come under fatality of circumstances are with the detained armed or unarmed where the detainers armed or unarmed were hostilities ongoing the detained have the freedom to withdraw from the field of battle without substantial harm and of course if mcburney turned his back that was certain that he would have been shot in the back the one helpful indicia we think for determining detainment is resistance because i think we want all our p o w s to resist to some degree or another hello wrong the next level fact finder might think the stipulation is for one party or the other if it's binding for the purposes of the case i don't understand why the government is free to stipulate two ninety two the court does not negate and an application of lot of facts and so the and that's exactly why it's not right we're not applying a lot of fact when deciding whether the statutory word contains applies to particular facts here well you know which you're deciding is whether or not the veterans court and the board below correctly define the word detained generally where the not that definition is accurate not just in the petitioners case but any case unable to withdraw as pinned down by far and that would mean that while there they're being hindered or delay or if you have hand in hand combat or someone is grabbing someone and they wrestle away well they were hindered they were delayed so if you're not in this context simulations but they're not bound by them the well is clear the board is not round factual findings by they are oh so now i'm not asking about factual findings i'm asking about stipulations in court of law parties are held to stipulation this isn't the government a they enter into a stipulation regardless of who the fact finder is why can't they enter into a stipulation and say for example we're going to take this term off the table while serving in the active military we agree mr burnet m serving in the active military the agency says this and so mr mcbirney says ok good so i don't have to introduce anything to establish the timeline no no that is something will stipulate to let's all focus on what it means to be forcibly detained instead under those circumstances then would it be fair would it be appropriate for the board to say wait a minute there hasn't been proof mr mcbirney fails because he failed to offer proof that this occurred while he was in the military mr mccarthy says no no they stipulated would that be a fair thing with the board be able to do that no that's that's the that's not exactly what happened i don't know what happened i'm trying to understand what they can and can't stipulate to right well so they could stipulate to that the v a regional office could stipulate to something like that mccartney wouldn't have to offer that group the board and the board would not under those circumstances be free to say he failed to make his claim by failing to offer that proof is that correct well no i think the story principle and this is factual finding in the ministry of art by the oral that was it could also be a fact finding but it was a stipulation was also a situation but the stipulation is really as it's not relevant to this ac because courts don't give meaning the stipulations always agree to something and isn't it possible mr mcbirney then didn't offer proof or put on evidence on something because it was the subject of a stipulation he no longer felt he had to say no to a legal issue both the board and the veterans court determined that the facts were under speed in terms of s judge newman said the facts are what they are in terms of what happened that particular afternoon and perhaps really even the only real that is not what you might like us to focus on that plays a phrase the discrete issue of whether or not the government is bound by a stipulation it makes which takes the issue off the table and it does if there is a stipulation you know great only the parties can stipulate resulting whatever's left over so parties are created to stipulate as to facts as to law to narrow the issues for focus of further adjudication and so as i understand it their argument to us is whether or not he was forcibly detained was taken off the table by the government when they stipulated to it so while if we have to reach that issue he makes an argument over how it should be interpreted but my understanding and i might be wrong and you can correct me on rebuttal but my understanding of his argument is that if the government stipulate that argument one if you look at the stipulations themselves the fact matter you know they're not one they're not they're really purported stipulations at this point they're not executed there's no the person who prepared by that at the end of the day what if you read the stipulations he simply said be stipulating that was detained by these foursomes that still begs the question under the statute the popper definition of detain and it's the board's response the board as a federal has consistently held reviews these reviews these findings de novo there's no question about that and so to extent that there are zero based on the stipulation said ok he was for detained that's not an issue the board still can review those findings do you know this is not a situation where the board made no mention of the stipulation does not the word stipulation doesn't appear in their decision is correct to me it seems quite clear that the board didn't even acknowledge or take into account the stipulation if i believe the government is capable of stipulating away a fact or a legal issue that you think the appropriate course of action should be in this case  let the board determine in the first instance what the stipulation that means i mean that's one course of action you're right and i think it's here on the record it's pretty it's pretty clear based on if you take if you look at the board's decision compared to  as i was saying as i mentioned earlier the the our oaks pressley found that petition was never outside the control of the force of the u s forces and then ok and so it's pretty clear that the  thank you i will be brief i just like to reiterate that the board did not make a definition for detainment considered to dictionaries and then it decided that neither one applied to the situation and it just moved on so the board made no no finding on that front we would strenuously disagree with mike my colleague with regard to our intent at the stipulations with regard to detainment we were thoroughly confused by the hour was negligence we couldn't understand why they insisted that we prove comparability of circumstances and that's exactly why deputations the way we did to account for detained by enemy forces furthermore i would say that john mccain was certainly in custody and was certainly restrained on the battlefield when three german soldiers point burdensome for hama several and i would say that for two for purposes of stipulations in this framework those principles all apply the board to all issues of fact and law preview is too rigid as applied to stipulations it's too complex for veterans who are trying to weed their way through this very complex v a system and it's unduly burdensome both on the v a and on the on the on the veteran if they're denied this opportunity to provide clarity administrative officials see accountability and transparency into the system if if this court rules that stipulations are apply in this ystem then it would protect veterans like me bernie from being attacked through the back door which is exactly