Earlier this month, the Federal Circuit heard oral argument in Bee v. United States, a case we have been following because it attracted two amicus briefs. In this case, William Bee appeals the denial of his request to have his military records reflect medical retirement rather than voluntary separation. Judges Reyna, Clevenger, and Chen heard the oral argument. This is our argument recap.
Michael Clemente argued for Bee. He began by describing Bee’s fourth deployment, where Bee and his unit were, Clemente explained, “hit by multiple” improved explosive device “blasts that collapsed the building on top of them,” killing two Marines and leaving the rest “seriously injured.” Clemente framed the central issue in this appeal as “whether those injuries left him unable to perform the duties expected of an infantry Marine.” He argued the Board’s denial of medical retirement “cannot stand” because the Board “did not apply the mandatory liberal consideration standard.”
A judge asked Clemente to focus on the “issue of the fitness determination.” Clemente argued the Board must “relate the nature and degree of the service members’ disabilities with the duties reasonably expected” of their office and rank. He maintained the Board’s “main error was on the fitness inquiry” because it “never identified the duties of an infantry unit leader in the Marine Corps.”
The same judge asked if the Board did show some consideration to this issue when it considered Bee’s temporary assignment as an instructor to chaplains. Clemente acknowledged the Board “did look at his fitness reports” from that time, but argued the Marine Corps training manual requires infantry Marines be “capable of full spectrum” combat and to “locate, close with and destroy the enemy,” amongst other duties. Clemente contended Bee “is clearly unable to do those things.”
A judge asked what Clemente’s argument implied for a Marine who “may not be fit for combat” but is “fully capable of performing” duties that are “necessary and important.” Clemente answered by arguing an injured service member “can be reclassified” so that service member’s “expected duties are different.” He explained the reclassification “depends on the specifics of what the duties expected of that particular office.”
Steven Gillingham argued for the United States. A judge asked if Bee had the “right to self-refer” to the disability system. Gillingham explained Bee could not have gone “to the Board and said ‘I’d like to hold a hearing.'” Gillingham argued, however, that Bee did have the ability to raise his concerns to “his military providers who are the gatekeepers to that system.” According to Gillingham, however, “by failing to bring it to the attention of anybody,” Bee did not trigger the fitness determination system.
A judge asked how the Board “wrestled with those listed core capabilities” relating to Bee’s official rank and rating. Gillingham argued the Board determined Bee “could have continued serving successful” if he had “chosen to reenlist.” When the judge pressed on where the Board addressed the core capabilities, Gillingham explained “you won’t find those words.” He explained that the applicable regulations do not “require that level of detail.” Furthermore, he argued, “there’s no question that [Bee] was capable” of completing his duties because “he had done them before” and retained the “muscle memory.”
A judge asked Gillingham to address the issue of “liberal consideration.” Gillingham answered by characterizing this doctrine, not as a formal burden, but as guidance “to be sensitive to the fact that there’s a lack of proof in coming from traditional medical sources.” Gillingham argued liberal consideration requires awareness that a service member “may only have his own words.” According to Gillingham, those words “are not to be discounted because they are just his own words,” though they are not necessarily dispositive.
In his rebuttal, Clemente argued the “Board needs to say” it is applying liberal consideration, and “the Board should start with the presumption” that Bee’s submitted evidence “from outside the service record is legitimate evidence.” Clemente noted that that “doesn’t mean that the evidence is going to be dispositive.” But, he said, the court should not allow the Board to “say ‘we don’t see it in the service record, therefore it’s not reliable.”
We will continue monitoring this case and report on developments.