[00:00:02] Speaker 01:
Case number 15-1096, Robert W. Rodriguez, Petitioner for Virginia S. Penrod, Chief of Staff for the Office of the Undersecretary of Defense for Personnel and Readiness, United States Department of Defense.

[00:00:14] Speaker 01:
Mr. Schmidt for the petitioner, Mr. Nemiroff for the respondent.

[00:00:39] Speaker 02:
Please.

[00:00:47] Speaker 03:
May please court.

[00:00:48] Speaker 03:
My name is Joseph Schmitz and I represent Lieutenant Colonel Robert W. Rodriguez, U.S.

[00:00:53] Speaker 03:
Army Reserve retired, who's with us at table today to my far right, along with my co-counsel, Paul Kaminar.

[00:01:01] Speaker 03:
The administrative record today before this court documents a 20-year military whistleblower odyssey that began in 1996 when Lieutenant Colonel Rodriguez was directed to falsify Army National Guard personnel attendance records in what became known as the Army's ghost soldier scandal.

[00:01:24] Speaker 03:
When he refused to falsify the records, Lieutenant Colonel Rodriguez was relieved of command.

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Shortly after Lieutenant Colonel Rodriguez filed his complaint with the New York Army National Guard Inspector General, he was constructively discharged from the Army.

[00:01:40] Speaker 03:
Just before, he would have been considered for promotion to Colonel.

[00:01:45] Speaker 03:
The final decision in the administrative record before this Court today is the result of a conflicts of interest plagued in lawless sham of an administrative appeal process mandated by Congress.

[00:02:03] Speaker 03:
20 years after his initial whistleblowing, four years after submitting his administrative appeal to the Secretary of Defense, for which the statute mandates, quote, the secretary shall make a decision to reverse or uphold the decision of the secretary of the military department concerned in the matter within 90 days after receipt of such a submittal, close quote.

[00:02:27] Speaker 02:
Can you start with addressing why this court has jurisdiction?

[00:02:31] Speaker 03:
I'd be glad to, Your Honor.

[00:02:32] Speaker 03:
But before I get to jurisdiction, if I may, I want to point out something that may not be obvious in the record.

[00:02:42] Speaker 03:
I'd be glad to address jurisdiction first, if you'd like.

[00:02:45] Speaker 02:
Well, is what you're going to address, does it pertain to jurisdiction?

[00:02:49] Speaker 02:
Yes, it does.

[00:02:50] Speaker 03:
OK.

[00:02:51] Speaker 03:
It goes to the equitable jurisdiction of the court.

[00:02:57] Speaker 03:
In Section 4C of our petitioner's brief, page 42 to 43, we point out that respondents' final decision missed the 90-day statutory time deadline and is therefore arbitrary and capricious.

[00:03:12] Speaker 03:
Respondent neglected even to address this argument, and therefore, based on this unrebutted argument alone, the court should vacate the final decision on review and remand with specific instructions to grant the relief outlined on page 47 or 48 of our petitioner's brief, including retroactive promotion to colonel.

[00:03:34] Speaker 03:
And to make this judicial review result even easier, respondent includes in the Administrative Record, Deferred Appendix, pages 73 to 76, the signature-ready draft memorandum we prepared in September of 2012 for the Secretary of Defense to effectuate what is called the whole loaf of relief required by law for whistleblowers such as Lieutenant Colonel Rodriguez.

[00:04:06] Speaker 03:
And based on the 20-year odyssey that is fully documented.

[00:04:11] Speaker 05:
Just to be clear, one, I hope you're going to get to jurisdiction, but two, at least half of that 20-year odyssey was because your client didn't raise any claim for 10 years.

[00:04:20] Speaker 05:
Is that correct?

[00:04:21] Speaker 03:
He wasn't legally able to raise claims.

[00:04:24] Speaker 05:
OK, but let's just be fair.

[00:04:25] Speaker 05:
Yeah.

[00:04:26] Speaker 05:
All right.

[00:04:26] Speaker 05:
Can you talk about jurisdiction now?

[00:04:27] Speaker 05:
Yes.

[00:04:28] Speaker 03:
Yes, Your Honor.

[00:04:29] Speaker 03:
This is a case of first impression.

[00:04:31] Speaker 03:
Jurisdiction lies in this court because Congress impliedly intended to grant military whistleblowers such as Lieutenant Colonel Robert Rodriguez, who in lieu of a district court judicial review option, exercised his right under the Military Whistleblower Protection Act to seek an administrative appeal

[00:04:57] Speaker 03:
to the Secretary of Defense under 10 USC 1034 G at the time now has been recodified as H. When Congress doesn't specify the court in which judicial review of that administrative appeal should begin, there's no indication in the Military Whistleblower Protection Act whether an appeal of that administrative appeal

[00:05:25] Speaker 03:
should start back in a trial court.

[00:05:28] Speaker 03:
And we maintain that that would be an absurd result in considering that this is a 20-year odyssey, and the administrative record has been fully prepared in the course of the administrative appeal to the Secretary of Defense.

[00:05:44] Speaker 02:
But I thought default review under the APA lies in the district court, not in the Court of Appeals.

[00:05:48] Speaker 03:
No.

[00:05:50] Speaker 03:
In fact, this court's case law recognizes Florida Light, which actually talks about the requirement of

[00:06:04] Speaker 03:
looking at the entire case and making a determination whether we can... So in Florida Life, there was a direct review provision, right?

[00:06:12] Speaker 02:
In Florida Life, there was a direct review provision that provided for direct review.

[00:06:16] Speaker 03:
That's right, but it addressed the principles that the court has to address in determining whether or not the starting point for a review of any administrative decision, a final decision, under the APA, Section 702, which we invoked,

[00:06:34] Speaker 03:
and which the government recognizes is the basis for us being before the court today, but in the APA, Congress doesn't say that the right of review has to start at the district court.

[00:06:48] Speaker 05:
No, but earlier this year, this circuit, and we're bound by panel precedent, a panel of this court and loan syndication said,

[00:06:56] Speaker 05:
that the normal default rule is that persons seeking review of agency action go to district court rather than to court of appeals.

[00:07:04] Speaker 05:
And we only get into the type of analysis that occurred in Florida Light if we have a statute that provides for direct review.

[00:07:13] Speaker 03:
I don't think.

[00:07:14] Speaker 05:
How do you distinguish loan syndication's language?

[00:07:16] Speaker 03:
Okay.

[00:07:16] Speaker 05:
Or holding?

[00:07:17] Speaker 03:
Yeah, in loan syndication A, and this is why I wanted to focus on this 20-year odyssey, there was no such equitable consideration.

[00:07:31] Speaker 03:
In loan syndication, in fact, the court actually reiterated.

[00:07:36] Speaker 05:
Wait, let me be clear then what your equitable argument is.

[00:07:38] Speaker 05:
Your argument that,

[00:07:43] Speaker 05:
If the case had proceeded with alacrity, both by your client and the government, then they'd have to go to district court?

[00:07:51] Speaker 05:
So this is an equitable exception?

[00:07:53] Speaker 05:
So normally these cases should go to district court, but we should make an equitable exception because of the time left in this case?

[00:07:59] Speaker 03:
Well.

[00:08:01] Speaker 05:
I mean, this should be a yes or no question.

[00:08:03] Speaker 05:
Is your position that the normal default rule under the Whistleblower Protection Act

[00:08:07] Speaker 05:
is that it should go to district court.

[00:08:09] Speaker 05:
No.

[00:08:12] Speaker 05:
So then your argument has nothing to do with twenty years.

[00:08:16] Speaker 05:
The twenty year odyssey has nothing to do with the jurisdiction argument has nothing to do with that.

[00:08:20] Speaker 03:
Well the equitable jurisdiction of the circuit court is an extraordinary exercise of jurisdiction.

[00:08:27] Speaker 05:
Well then that's back to my question.

[00:08:28] Speaker 05:
So there's two ways to go here.

[00:08:30] Speaker 05:
One is that the best statutory analysis

[00:08:34] Speaker 05:
is that all whistleblower claims like this, in his category, under this statute, go directly to the Court of Appeals.

[00:08:40] Speaker 05:
That's one option.

[00:08:42] Speaker 03:
If they have exercised the appellate, the administrative appeal route.

[00:08:49] Speaker 05:
Yes, exactly.

[00:08:49] Speaker 03:
So you've already got the administrative record, no need any fact finding.

[00:08:53] Speaker 05:
Yes, so one holding would be all

[00:08:57] Speaker 05:
whistleblower claims that come through the administrative avenue go directly to the Court of Appeals.

[00:09:02] Speaker 05:
That's one option.

[00:09:03] Speaker 03:
Actually, that's not exactly our position.

[00:09:06] Speaker 05:
I want you to just clarify for me.

[00:09:08] Speaker 05:
This is how I'm thinking and you can tell me why I'm thinking wrong.

[00:09:11] Speaker 05:
One option is all whistleblower and protection act cases that choose the administrative review process at the end of that process go directly to Court of Appeals as a matter of statutory construction.

[00:09:23] Speaker 05:
The second option is

[00:09:27] Speaker 05:
They may actually go to district court ordinarily, but because you have equitable jurisdiction for extraordinary circumstances, you can make an exception in this case.

[00:09:38] Speaker 03:
Yes.

[00:09:38] Speaker 05:
So is it the statutory construction route, all who go through this administrative process go to the Court of Appeals, or are you arguing that this is an exceptional case and just this one comes to the Court of Appeals?

[00:09:52] Speaker 03:
We are arguing that under the exceptional circumstances of this case, when the Congress has not spoken to the issue,

[00:10:02] Speaker 03:
Unlike in the Florida powers where they did have a list of certain final decisions and then they had to construe whether Congress really would have intended this particular action to be on the list, there's no list at all here.

[00:10:16] Speaker 03:
There's just complete silence in the statute.

[00:10:19] Speaker 03:
So we are suggesting under this situation, when there is a hole in the statute that the court must fill with regard to jurisdiction,

[00:10:28] Speaker 03:
that because of the extraordinary circumstances of this case and under equitable jurisdiction principles, you should defer to the whistleblower who chose, in this case, in the interest of effectuating a speedy result, which was the intent of Congress by putting that 90-day requirement in,

[00:10:50] Speaker 03:
Congress obviously intended a speedy result generally here, and this whistleblower decided, instead of wasting years and years starting in a trial court again, building another record after already doing that, to try to seek a more speedy result here in this court.

[00:11:08] Speaker 03:
And we believe that when Congress is silent in a situation like this,

[00:11:13] Speaker 03:
the court should construe that silence in favor of the whistleblower so that if he chooses to come into this court directly, he has that option.

[00:11:22] Speaker 05:
So that would apply to every whistleblower who goes through the administrative review.

[00:11:26] Speaker 03:
every whistleblower.

[00:11:27] Speaker 03:
It's possible that there's a, let me give you an example, which is why I'm not saying.

[00:11:31] Speaker 05:
I'm really just, yeah, what is your, is it.

[00:11:33] Speaker 03:
The example is.

[00:11:34] Speaker 05:
It's either all or it's we choose one at a time who comes to this court and who goes to district court.

[00:11:38] Speaker 03:
As far as I'm concerned, this is a sui generis situation, which is why I wanted to emphasize the 20 year odyssey.

[00:11:44] Speaker 03:
This is sui generis.

[00:11:45] Speaker 03:
You're not going to be opening up

[00:11:47] Speaker 03:
a flood of appeals to this court.

[00:11:50] Speaker 05:
Can you give me any case authority that says jurisdiction under a statutory scheme in a federal court can be determined on a case-by-case, individual circumstances basis?

[00:12:04] Speaker 05:
Well, and when you exercise equitable jurisdiction... What's your best case that says we can do that on a case-by-case, individual circumstances?

[00:12:14] Speaker 03:
Does it have to be?

[00:12:15] Speaker 03:
Can it be a statute?

[00:12:17] Speaker 03:
The Judiciary Act of 1789, which gives Circuit Courts equitable power.

[00:12:26] Speaker 04:
Don't the cases that you cite, the district court cases, you cite for the equitable power?

[00:12:32] Speaker 03:
Well, actually, the Judiciary Act gave all courts, including Circuit Courts, equitable power.

[00:12:38] Speaker 05:
Equitable power in cases in which they have jurisdiction.

[00:12:41] Speaker 03:
Equitable jurisdiction.

[00:12:42] Speaker 05:
Where is this?

[00:12:44] Speaker 05:
Again, I guess I don't see anything in the Judiciary Act text or, and I haven't yet seen a case that says we have equitable jurisdiction that we can apply on a case by case basis to decide whether you come to court of appeals or district court.

[00:12:57] Speaker 05:
I just haven't seen that.

[00:12:59] Speaker 05:
Might be right, I just haven't seen it.

[00:13:01] Speaker 03:
As I said at the very beginning of my jurisdiction argument, this is a case of first impression.

[00:13:05] Speaker 03:
We looked and looked, we have no precedent anywhere for this type of a situation.

[00:13:11] Speaker 02:
Okay, thank you.

[00:13:23] Speaker 00:
May I please support Patrick Nomaroff on behalf of the government?

[00:13:26] Speaker 00:
This Court has been very clear that absent a statute that expressly provides for direct review in the Court of Appeals, Court of Appeals do not have jurisdiction over an APA action and the default jurisdiction lies in the District Court.

[00:13:39] Speaker 00:
A petitioner concedes that there is no such statute providing for direct review here.

[00:13:45] Speaker 00:
And as to a petitioner's equitable argument, of course, courts have equitable authority when the court has jurisdiction, but there is no case that I'm aware of that suggests that courts can exercise jurisdiction in the first instance as a matter of equity.

[00:14:03] Speaker 00:
I think that settles the case.

[00:14:05] Speaker 00:
I'm happy to answer any questions.

[00:14:07] Speaker 04:
If we were to agree with you, would the proper course be to transfer the case to the district court, court of claims, dismiss it?

[00:14:15] Speaker 00:
So as we flagged in our brief, it's not clear where

[00:14:20] Speaker 00:
the jurisdiction would properly lie in this case, because there are a number of cases that arise in these sorts of contexts that go either to district court or to the court of claims.

[00:14:30] Speaker 00:
And the question is really whether the individual is seeking monetary damages in excess of $10,000, in which case the Tucker Act applies.

[00:14:39] Speaker 00:
here because we know what the court does and what this court has said in Tudel and Kidwell, which we said in our brief, the court looks at the four corners of the complaint to determine what it is that the individual is actually seeking.

[00:14:52] Speaker 00:
After the complaint, there's no such complaint here.

[00:14:54] Speaker 04:
We don't think the court can make a determination, so we think what makes the most sense is to dismiss and allow the... He says he's seeking back pay, and I guess I had a question because I know under

[00:15:08] Speaker 04:
Title VII, there's at least some authority that back pay is equitable rather than damages, and maybe that was changed by 1991's civil rights act, but do you have a position as to whether a request for back pay would mean that this should go to the court of plaintiffs?

[00:15:27] Speaker 00:
I know that there are contexts in which the court of claims on the federal circuit has handled claims for back pay.

[00:15:34] Speaker 00:
And the question I think was whether there was a money mandating statute at issue that required back pay.

[00:15:42] Speaker 00:
There are, for example, if your honor wants to find a case on this point, Lewis v. United States, which is 458 F-1372, is a Federal Circuit case in which the individual was seeking back pay after retroactive promotion, and that was before the Federal Circuit under the Tucker Act.

[00:16:01] Speaker 00:
Really, we wanted to flag the issue because it's not clear where jurisdiction lies.

[00:16:05] Speaker 05:
And at a minimum, we, you know, just preserve... But wouldn't that ambiguity as to where, as to what even the content of the claim is and the nature of the relief sought counsel in favor of a transfer to the district court so that a complaint can be filed and can figure out what's being sought here?

[00:16:26] Speaker 05:
Because there could, until we know what relief is sought, there could be some statute of limitations issues, could there not?

[00:16:31] Speaker 00:
there could be with respect to some of the Tucker Act claims.

[00:16:36] Speaker 00:
I don't think there would be with respect to the APA claims.

[00:16:39] Speaker 05:
So the back pay there might or might not be certainly to the extent he alleges a constructive discharge.

[00:16:45] Speaker 00:
I don't think we're not strongly resisting transferring it to the district court, but we wanted to flag the point that it's not clear that jurisdiction would properly lie in the district court.

[00:16:56] Speaker 05:
You can't tell.

[00:16:57] Speaker 05:
Normally, you don't decide which trial court you go to until a complaint is filed.

[00:17:02] Speaker 05:
The district court could then, if need be, transfer it to the court of federal claims.

[00:17:06] Speaker 00:
That's right.

[00:17:06] Speaker 00:
And we would just preserve our jurisdictional arguments.

[00:17:08] Speaker 00:
And just on the sexual limitations point,

[00:17:11] Speaker 00:
Just to the extent it's relevant, while there might be issues under the Tucker Act because the six-year statute of limitations would accrue at the time of events being challenged, not at the time of the board's decision, transferring wouldn't cure that statute of limitations problem.

[00:17:27] Speaker 00:
So just to the extent what the court's looking for is whether it would be in the interest of justice.

[00:17:31] Speaker 05:
Well, what about the, because there was the settlement and then the re-issuance of a decision, or a new decision by the, was it the chief of staff that's challenged here?

[00:17:44] Speaker 05:
Does that reset the statute of limitations?

[00:17:47] Speaker 05:
Colloquially, the Senate's challenging that determination.

[00:17:49] Speaker 00:
For purposes of the APA, yes.

[00:17:51] Speaker 00:
No, but also for?

[00:17:52] Speaker 00:
I don't, I guess I don't know the answer, Your Honor, and to the extent, I think

[00:17:58] Speaker 00:
the court could reasonably transfer and allow the district court to figure all this out, or the court could dismiss and allow the petitioner to file a complaint in whichever court the petitioner thinks it belongs.

[00:18:08] Speaker 00:
We're not strongly resisting.

[00:18:09] Speaker 05:
But you're acknowledging there could be at least some potential statute of limitations problems for part of his claims.

[00:18:15] Speaker 00:
Sure, but even, I guess, to the extent this Penrod's decision is relevant, we would still be within the six years of statute of limitations.

[00:18:24] Speaker 05:
For APA, but we don't know about for back day.

[00:18:27] Speaker 00:
I guess I'm just saying, I don't think that whether it's transferred or dismissed is relevant to that determination.

[00:18:33] Speaker 00:
But again, if the court thinks the transfer is appropriate, we would just seek to preserve any jurisdictional arguments, something we might want to write.

[00:18:42] Speaker 05:
Do you happen to know if the Military Pay Act is considered a money-mandating statute?

[00:18:46] Speaker 00:
Actually, the Federal Circuit has held that it's not a money-mandating statute.

[00:18:51] Speaker 00:
So, of course, the claim for retroactive pay here, to the extent that's what petitioners seeking would need to identify another money-mandating statute.

[00:18:58] Speaker 05:
Does the United States agree with that position about the Military Pay Act?

[00:19:02] Speaker 00:
to start.

[00:19:03] Speaker 05:
He said that is it just because the position of the federal circuit doesn't mean its position of the United States government money military pact is not a money-mandating military whistleblower for those are in the area.

[00:19:12] Speaker 00:
I'm sorry I misheard your honor, I believe the military pact is a money-mandating such as sorry I heard the military whistleblower for sorry my apologies.

[00:19:22] Speaker 02:
Okay, thank you very much.

[00:19:23] Speaker 02:
Thank you counsel.

[00:19:26] Speaker 02:
We'll give you one minute back for rebuttal.

[00:19:29] Speaker 05:
Before you start, can I ask you, can you clarify what relief you're seeking?

[00:19:33] Speaker 05:
Because I thought your reply brief said you were just seeking equitable relief and not back pay.

[00:19:39] Speaker 05:
But is your claim sick?

[00:19:43] Speaker 03:
There is no back pay issue, because Lieutenant Colonel Rodriguez is a reservist, and you would not get back pay unless he had been drilling.

[00:19:50] Speaker 03:
And since he got constructively discharged, he never drilled.

[00:19:54] Speaker 03:
Back pay is a complete red herring, as is the Tucker Act.

[00:19:58] Speaker 03:
This is a, this is not a normal case.

[00:20:00] Speaker 05:
So if he were to be retroactively determined to have been a Colonel, there'd be no financial compensation, not a penny from the U.S.

[00:20:08] Speaker 03:
government.

[00:20:08] Speaker 03:
The only automatic thing that would happen is that as of the date of his retroactive promotion, the Defense Finance and Auditing Service would go back automatically, no discretion, and they would just

[00:20:20] Speaker 03:
pay him the differential of what he would have made as a colonel from the date of the retroactive promotion.

[00:20:27] Speaker 03:
And that is not considered money damages?

[00:20:29] Speaker 05:
No, but it's money.

[00:20:31] Speaker 05:
I thought you said he wouldn't be doing any money, but now he would.

[00:20:34] Speaker 03:
No, I said he wouldn't be doing any back pay.

[00:20:36] Speaker 03:
Back pay is something that you're being paid for for something you earned.

[00:20:41] Speaker 03:
It's a term of art.

[00:20:43] Speaker 03:
He's never asked for back pay.

[00:20:45] Speaker 05:
How do you characterize what it is that he would get paid if he were retroactively promoted?

[00:20:51] Speaker 05:
How do you characterize that amount of money making up the difference?

[00:20:54] Speaker 03:
It's not just how I would.

[00:20:55] Speaker 03:
The courts characterize it as an automatic function that comes with retroactive promotion.

[00:21:00] Speaker 03:
It's not considered money, money damages.

[00:21:04] Speaker 04:
And it's not titled back pay.

[00:21:05] Speaker 04:
I think we were asking, what is it?

[00:21:07] Speaker 03:
I don't believe it's titled back pay at all.

[00:21:08] Speaker 04:
If one were to want to search for it, I don't think it would be what you just said, which is a retroactive function.

[00:21:14] Speaker 05:
I mean, back pay normally is not damages.

[00:21:17] Speaker 03:
I've won these cases at the boards.

[00:21:19] Speaker 03:
And what happens is the board does not award any money damages.

[00:21:23] Speaker 03:
It just says retroactively promote.

[00:21:26] Speaker 03:
The person gets retroactively promoted as a matter of course.

[00:21:30] Speaker 04:
the differential comes out in the pay system so that everything... Typically, for example, in an employment discrimination case or an MSPB case or different cases under different federal statutes, that would typically be referred to as back pay, which is the source, I think, of our confusion.

[00:21:46] Speaker 03:
Not money damages.

[00:21:47] Speaker 03:
And this is not a Title VII case.

[00:21:49] Speaker 03:
This is not a Tucker Act case.

[00:21:51] Speaker 03:
This is a simple APA review of arbitrary and capricious

[00:21:55] Speaker 03:
agency action, which as I have been trying to color for you, this is extraordinary and it's screaming out.

[00:22:03] Speaker 02:
Are you saying that the payment part of it actually isn't part of the action at all?

[00:22:07] Speaker 02:
In other words, that the action is just to seek reclassification and then unlike other cases where back pay is requested as a form of relief, the payment actually doesn't have anything to do with the action.

[00:22:17] Speaker 02:
It's just that the reclassification then

[00:22:20] Speaker 02:
occasion some internal administrative mechanism that results in that.

[00:22:22] Speaker 02:
That's right.

[00:22:23] Speaker 03:
That's exactly right.

[00:22:23] Speaker 03:
And going back to your question, Your Honor, if you look at page, I think, 47 of our, we spell out very, very clearly exactly what relief we're asking for.

[00:22:32] Speaker 03:
And I was just highlighting earlier when, even before I started about jurisdiction,

[00:22:37] Speaker 03:
It would be so easy for this court, simply on the basis of missing a 90-day statutory deadline, declaring the decision before the court, arbitrary and capricious, and directing the relief we've asked.

[00:22:49] Speaker 03:
And as I said, respondents made it even easier by putting in the signature-ready memo from the Secretary of Defense to the Secretary of Army saying, make it happen.

[00:23:00] Speaker 05:
Just one other question.

[00:23:01] Speaker 05:
You do assert a constructive discharge, correct?

[00:23:04] Speaker 03:
Yes, Your Honor.

[00:23:05] Speaker 05:
And when did that constructive discharge happen?

[00:23:07] Speaker 05:
It's just a fact question.

[00:23:08] Speaker 03:
1997?

[00:23:10] Speaker 03:
1997.

[00:23:13] Speaker 03:
All right.

[00:23:15] Speaker 03:
So just one final point, if I may.

[00:23:18] Speaker 03:
If you just look at the result, if you transfer this to another court,

[00:23:25] Speaker 03:
You're going to take a 20-year odyssey, and you're going to make it probably 24.

[00:23:29] Speaker 03:
And my client's going to die.

[00:23:31] Speaker 05:
So are you opposed to transferring?

[00:23:34] Speaker 05:
If we were to determine that we didn't have jurisdiction, are you opposed to transfer?

[00:23:41] Speaker 03:
In the interest of justice, Your Honor, this case is screaming for a resolution.

[00:23:46] Speaker 05:
I want to try one more time.

[00:23:48] Speaker 05:
If we were determined, and you've raised arguments that we obviously have to grapple with, but if we were to determine, I'm going to suss this all out, if we're determined there's no appellate jurisdiction in the first instance, we have two options.

[00:24:02] Speaker 05:
One is dismiss and then you formulate your complaint and file it where you wish or transfer.

[00:24:10] Speaker 03:
Well, I think that your honor is hit on an issue.

[00:24:12] Speaker 03:
I think the government, frankly, is doing what they've been doing for 20 years of trying to roll my client.

[00:24:17] Speaker 05:
I'm asking you what your position is in that situation.

[00:24:20] Speaker 03:
I would, if you transferred us to the district court below, we would reluctantly carry on and try to basically make the exact same arguments we made in this case before a district judge who's used to dealing with factual questions.

[00:24:35] Speaker 03:
And these are pure legal questions before the court.

[00:24:38] Speaker 05:
Would you prefer that or would you prefer dismissal?

[00:24:43] Speaker 04:
We understand that neither of those is what you're asking for.

[00:24:47] Speaker 03:
Your first choice would be to have relief from us.

[00:24:49] Speaker 03:
Yes, we would prefer to be transferred to the district court below over a dismissal for lack of jurisdiction.

[00:24:58] Speaker 05:
That's a distinct second choice.

[00:25:00] Speaker 03:
Absolutely, Your Honor.

[00:25:01] Speaker 03:
Please, this has been 20 years and my client's going to die.

[00:25:05] Speaker 03:
Thank you, counsel.

[00:25:06] Speaker 03:
The case is submitted.