The primary argument is that Bergdahl should have known about Nance's Spath issues earlier and included the argument in regular briefing. The case is distinguished from Nashiri in only one footnote. The Government wisely refrained from relying on their personal opinions about Nance's reputation for integrity. The brief contains no warning to "tread lightly."
UPDATE: The Government filed an amended pleading, removing an erroneous claim that Bergdahl's filings were not timely (and removing a cheeky citation to opposing counsel Eugene Fidell's scholarly treatise on CAAF rules).