[00:00:05] Speaker 00:
Good morning.

[00:00:20] Speaker 04:
Good morning, Your Honor.

[00:00:21] Speaker 04:
Good morning, Your Honors.

[00:00:23] Speaker 04:
If it so please the Court

[00:00:25] Speaker 04:
I appear here again before the same panel judges to argue, as I did successfully in the Hasslewander case that determined that the military failed in its duties under 10 USC 1552.

[00:00:38] Speaker 04:
Again, I argue it has done the same today.

[00:00:41] Speaker 04:
To borrow from this panel's decision in Hasslewander,

[00:00:44] Speaker 04:
The Board of Corrections has been sanctioned to, quote, determine in so far as possible the true nature of the alleged injustice and to take steps to grant thorough and fitting relief, end quote.

[00:00:56] Speaker 04:
And its principal function is to, quote, correct an injustice clearly presented.

[00:01:01] Speaker 05:
Why is this case here?

[00:01:03] Speaker 05:
This is a Tucker Act case.

[00:01:06] Speaker 05:
But it's not.

[00:01:06] Speaker 05:
With a bigger little.

[00:01:08] Speaker 05:
And so why doesn't it belong in the Federal Circuit?

[00:01:10] Speaker 05:
It belongs in the Federal Circuit.

[00:01:12] Speaker 05:
You're asking for back pay.

[00:01:15] Speaker 05:
money damages exceed $10,000.

[00:01:19] Speaker 04:
We're asking that his records be corrected and we asked for any benefits that naturally flow from that correction.

[00:01:24] Speaker 05:
You asked for back pay as well, right?

[00:01:25] Speaker 05:
In the complaint, you asked for back pay.

[00:01:27] Speaker 05:
That's money.

[00:01:28] Speaker 05:
Yes.

[00:01:29] Speaker 05:
That's federal circuit stuff.

[00:01:31] Speaker 05:
But what we're primarily asking for

[00:01:33] Speaker 05:
The case law doesn't make that sort of distinction.

[00:01:36] Speaker 04:
However, if you look at the underlying case law, I'm sorry, the underlying statute that brings this matter here, it is 10 USC 1552.

[00:01:44] Speaker 04:
What we're trying to do here is make sure that the Board of Corrections follows its equitable duties.

[00:01:51] Speaker 04:
And that hasn't occurred.

[00:01:52] Speaker 04:
That's why we brought it here before an APA.

[00:01:55] Speaker 05:
If there is, you haven't brought the money damages.

[00:01:58] Speaker 05:
You, you, you have an APA case, but you haven't, it's a Tucker act case.

[00:02:02] Speaker 05:
We don't do Tucker.

[00:02:04] Speaker 04:
In our sister court, it, I believe it was under, forgive me.

[00:02:11] Speaker 04:
Her sister court where it had been argued that the party was asking for attorney's fees.

[00:02:18] Speaker 04:
which may exceed over $10,000.

[00:02:21] Speaker 04:
That did not end the matter there.

[00:02:25] Speaker 04:
that did not remove jurisdiction of the court to hear the APA case, which is what it did.

[00:02:32] Speaker 04:
I understand it.

[00:02:34] Speaker 05:
You recognize it was a Tucker Act case, and so you tried to amend the complaint to make it a little Tucker Act case, right?

[00:02:41] Speaker 05:
So you recognize that that was a problem with your case.

[00:02:45] Speaker 04:
After a hearing, I believe, with the judge,

[00:02:49] Speaker 04:
But we don't believe that it's actually a little tucker, big tucker, because again, we're not asking primarily for money.

[00:02:58] Speaker 04:
We're primarily asking for his records to be corrected, that the agency acted arbitrary and capricious.

[00:03:05] Speaker 05:
And naturally, if we were to win, what would- And do you have a case that makes that point, that when you're seeking money damages in excess of $10,000, but you're also seeking equitable relief?

[00:03:18] Speaker 05:
That that's not, that that's something that we can hear and that that's not for the federal circuit.

[00:03:22] Speaker 04:
Do you have a case?

[00:03:23] Speaker 04:
But again, we're not asking for money damages.

[00:03:26] Speaker 04:
We're asking that his records, let me rephrase that.

[00:03:29] Speaker 04:
What we are asking- You're asking for back pay, right?

[00:03:31] Speaker 04:
Let me ask, let me be clear what we're asking.

[00:03:33] Speaker 05:
Are you asking for back pay?

[00:03:35] Speaker 05:
Yes or no?

[00:03:35] Speaker 05:
Are you asking for back pay?

[00:03:36] Speaker 04:
We are not asking- Is that in your complaint?

[00:03:38] Speaker 04:
We are- Back pay, if I may.

[00:03:39] Speaker 05:
That phrase.

[00:03:41] Speaker 04:
Okay, back pay, to answer your question.

[00:03:43] Speaker 04:
We are not asking the court to grant or deny back pay, period.

[00:03:49] Speaker 04:
It's not in your complaint.

[00:03:52] Speaker 04:
What we asked for was a records corrections and any benefit that naturally flows from.

[00:03:58] Speaker 04:
Which would include attorney's fees, which would include back pay, which would include removal of an OTH or other than honorable discharge to an honorable discharge or medical discharge.

[00:04:09] Speaker 04:
We're asking that his disability rating be given a 10% if not higher for his military medical discharge.

[00:04:21] Speaker 04:
None of those things that I've just listed, with the exception of the records correction in of itself, is something that this court can grant.

[00:04:31] Speaker 04:
And any veteran should not be penalized, whether it's now before as he files the complaint or later after the fact and he's trying to get the benefits that the military is going to say, well, you never asked for the complaint.

[00:04:46] Speaker 04:
But if there is an issue of money, then the lower court had the responsibility to split the matter, remove the money issue to the court of claims, and resolve the APA action here.

[00:05:05] Speaker 03:
Are you seeking to appeal the denial of the motion to transfer?

[00:05:12] Speaker 04:
amongst other things as an alternative.

[00:05:14] Speaker 04:
We don't have jurisdiction to consider that.

[00:05:17] Speaker 04:
But we can determine whether or not the, it was an abuse of discretion of the lower court not to do that.

[00:05:22] Speaker 03:
No, we don't have jurisdiction.

[00:05:26] Speaker 03:
28 U.S.C.

[00:05:27] Speaker 03:
1292, what is it?

[00:05:34] Speaker 03:
D4 says that the United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from a district court granting or denying in whole or in part a motion to transfer the action to the U.S.

[00:05:49] Speaker 03:
Federal Court of Claims.

[00:05:55] Speaker 04:
I'm sorry, did I mishear you?

[00:05:57] Speaker 04:
Did you not just say that this court does have that jurisdiction?

[00:05:59] Speaker 03:
No, no, no.

[00:06:00] Speaker 03:
It's the United States

[00:06:03] Speaker 03:
The appeal from the motion to deny transfer should have been taken to the Court of Appeals for the Federal Circuit.

[00:06:11] Speaker 03:
We don't have jurisdiction.

[00:06:12] Speaker 03:
They have exclusive jurisdiction over that appeal.

[00:06:18] Speaker 04:
From our lower court, and I see my time has elapsed.

[00:06:21] Speaker 04:
Yeah, right.

[00:06:22] Speaker 04:
But I will answer any other questions.

[00:06:24] Speaker 04:
Your time hasn't elapsed.

[00:06:26] Speaker 05:
That's fine.

[00:06:28] Speaker 05:
Your time hasn't elapsed, you have three minutes.

[00:06:31] Speaker 04:
No, I reserve rebuttal.

[00:06:32] Speaker 05:
Okay, okay.

[00:06:41] Speaker 05:
Can you wait just one second, please?

[00:06:53] Speaker 02:
Good morning and may it please the court.

[00:06:54] Speaker 02:
Rachel Homer on behalf of the government.

[00:06:56] Speaker 02:
I'd like to start by addressing your honor's question and note that in paragraph 28 of plaintiff's complaint, which is on JAPH8, he states quote, or he requests quote, granting plaintiff appropriate back pay and benefits that would naturally flow from the upgrade and discharge status discussed in the previous paragraphs.

[00:07:16] Speaker 02:
So the plaintiff does request monetary relief.

[00:07:19] Speaker 02:
This court has repeatedly held that a request for back pay is an explicit request for monetary relief, and therefore this case falls within the jurisdiction of the TACRA Act.

[00:07:28] Speaker 05:
And what do the cases say when we have a claim for equitable relief and a claim for back pay or monetary relief?

[00:07:35] Speaker 05:
What do we do then?

[00:07:35] Speaker 05:
Do we split?

[00:07:38] Speaker 02:
There's no case that I have found that splits those issues.

[00:07:41] Speaker 02:
All of the cases hold that if the Tucker Act is implicated, it needs to be in the Court of Federal Claims and then the Federal Circuit.

[00:07:49] Speaker 05:
And even the APA claim?

[00:07:51] Speaker 02:
That's correct.

[00:07:52] Speaker 05:
The whole thing goes to the... That's correct.

[00:07:57] Speaker 02:
I'd like to just step back and note that as your honors have made clear in your question, there are two separate issues in this case.

[00:08:06] Speaker 02:
First, there's the question of whether the district court had jurisdiction over the complaint as currently written.

[00:08:11] Speaker 02:
And second, there's the question of whether the court was correct to deny leave to amend.

[00:08:15] Speaker 02:
We believe the court was correct on both of those issues.

[00:08:19] Speaker 02:
This case is squarely controlled by this court's decision in Kidwell v. Department of the Army.

[00:08:24] Speaker 05:
That case holds that a claim is subject to the Tucker Act and its jurisdictional consequences if, in whole or in part, it explicitly or in essence... So if it all goes to the Federal Circuit, does the Federal Circuit take up the issue of the amended complaint?

[00:08:39] Speaker 02:
That's correct.

[00:08:41] Speaker 05:
They take up everything.

[00:08:42] Speaker 02:
That's correct.

[00:08:43] Speaker 02:
And the Federal Circuit is empowered to correct records and remand to the agency as needed in addition to granting the monetary relief that the plaintiff requests.

[00:08:56] Speaker 05:
On the transfer, there's the interest of Justice Prong.

[00:09:00] Speaker 05:
Now, if it's transferred, don't we already know what's going to happen to the Federal Circuit?

[00:09:05] Speaker 05:
Haven't they already made clear that there's a statute of limitations problem here?

[00:09:10] Speaker 02:
Yes, we do.

[00:09:10] Speaker 02:
The Federal Circuit held that in 2012 in this exact same case with the same plaintiff.

[00:09:16] Speaker 05:
So why don't we just dismiss it here?

[00:09:19] Speaker 02:
We agree that you should affirm the district court's dismissal.

[00:09:22] Speaker 03:
Well, he's arguing that it was reopened pursuant to his request for reconsideration.

[00:09:31] Speaker 02:
That's correct.

[00:09:32] Speaker 02:
He is arguing that.

[00:09:32] Speaker 03:
And we held in Cendra that that is not reviewable unless the basis for the motion for reconsideration is newly discovered facts or changed circumstances, not new arguments.

[00:09:48] Speaker 02:
That's correct.

[00:09:49] Speaker 02:
And we don't believe that the 2015 denial of reconsideration, which is the only board action at issue here, was a reopening.

[00:09:56] Speaker 02:
And therefore, it doesn't restart the APA statute of limitations.

[00:10:02] Speaker 01:
If he had only sought to transfer, there wouldn't have been any real issue about sending it and transferring it, would there have been?

[00:10:16] Speaker 01:
The complication here is you have a request to transfer and an oppressed to amend the complaint.

[00:10:24] Speaker 01:
The request to amend the complaint essentially muddles up their case, is what you're saying.

[00:10:30] Speaker 01:
because then the district court considered the merits, which you wouldn't normally consider if it has jurisdiction.

[00:10:35] Speaker 01:
The district court would not consider the merits of the case.

[00:10:39] Speaker 01:
That's an odd situation.

[00:10:41] Speaker 01:
In other words, if all we had on the books was a failure to transfer, district court should not have considered the merits.

[00:10:49] Speaker 02:
The district court can consider the merits if it needs to determine whether a transfer would be in the interest of justice.

[00:10:55] Speaker 01:
I'm trying to find the cases there.

[00:10:57] Speaker 01:
I mean, there was a dissent by Judge Ginsburg in one case suggesting that's the appropriate approach.

[00:11:04] Speaker 01:
Is there some other case law in our circuit that says that?

[00:11:07] Speaker 01:
No, Your Honor, and there would have been no... It doesn't make any sense because normally if we're dismissing

[00:11:13] Speaker 01:
For lack of jurisdiction, we simply dismiss.

[00:11:16] Speaker 01:
That's correct.

[00:11:17] Speaker 01:
Or transfer.

[00:11:18] Speaker 01:
That's correct.

[00:11:18] Speaker 01:
We leave the disposition and the merits to the court to whom it's being transferred.

[00:11:24] Speaker 02:
Your Honor is correct.

[00:11:25] Speaker 02:
If plaintiff had only requested a transfer, the court could have transferred it to the Court of Federal Claims, which would have dismissed it.

[00:11:30] Speaker 03:
Well, the procedure is that in denying the motion, the district court should have stayed its action for 60 days.

[00:11:41] Speaker 03:
That's the procedure, but that wasn't followed either.

[00:11:47] Speaker 02:
The district court did not stay its action for 60 days.

[00:11:49] Speaker 02:
That's certainly correct.

[00:11:50] Speaker 03:
And the purpose of that is to give the federal circuit time to decide whether the case should have been transferred or not, because the appeal from the district court goes to the federal circuit.

[00:12:06] Speaker 03:
I mean, that's the system that Congress put in place.

[00:12:11] Speaker 03:
In this case… Judge Edwards is correct.

[00:12:12] Speaker 03:
It wasn't followed here.

[00:12:14] Speaker 03:
You know, what happened is that it was a simultaneous denial of a motion to transfer and a decision on the merits.

[00:12:22] Speaker 02:
That's correct, Your Honor.

[00:12:24] Speaker 02:
It's worth noting that in this case, the Federal Circuit has already held that Mr. Palacios' claims are time-barred in the Federal Circuit.

[00:12:31] Speaker 02:
But yes, you're correct.

[00:12:33] Speaker 02:
If there are no further questions, we'll rest on our briefs.

[00:12:36] Speaker 02:
Thank you.

[00:12:50] Speaker 04:
Your honor, first, if I may, is there any specific questions I can address to the court or answer to the court before I begin?

[00:13:00] Speaker 04:
I'll take those no.

[00:13:01] Speaker 04:
Again, you had asked for a case, and I'm sorry, I got lost in my notes, where they had split, and I thought,

[00:13:17] Speaker 04:
I know I mentioned one in my brief and I apologize I just can't get my thumb on it at the moment.

[00:13:23] Speaker 04:
But I do think we need to know from again our sister circuit and pool, it would be damaging to justice and to respect for the non monetary concerns.

[00:13:34] Speaker 04:
of our offices for this court to hold that plaintiff's claims for individually of his conviction and discharge are masked for a subsequent claim for monetary relief.

[00:13:44] Speaker 04:
At least as important as back pay are a man's career, his livelihood, his rights as a veteran, his status as a convicted criminally, and his reputation.

[00:13:55] Speaker 04:
I argue that

[00:13:59] Speaker 04:
those benefits are all stuff that flow from or stem from a records correction.

[00:14:05] Speaker 04:
We are asking for a records correction.

[00:14:06] Speaker 04:
We should not be penalized because we want to make sure that we have everything that naturally flows from.

[00:14:13] Speaker 04:
Does this mean that if I don't ask for attorney's fees in the matter that I will be denied attorney's fees in this particular case?

[00:14:21] Speaker 05:
How is saying jurisdictions in the federal circuit

[00:14:24] Speaker 05:
penalizing you.

[00:14:25] Speaker 05:
That's an odd choice of words.

[00:14:27] Speaker 04:
No, no, no.

[00:14:28] Speaker 04:
I'm not saying that it penalizes me.

[00:14:29] Speaker 04:
What I'm saying is I'm being, my client or any veteran would be penalized for raising those issues in district court, not the court of claims.

[00:14:41] Speaker 05:
I'm afraid I don't see the penalty of saying it has to be in the federal circuit as opposed to here.

[00:14:47] Speaker 04:
Forgive me.

[00:14:47] Speaker 04:
I couldn't hear you, sir.

[00:14:49] Speaker 05:
I don't see how you're being penalized by

[00:14:53] Speaker 05:
A jurisdictional question that says your claim belongs in the Court of Federal Claims in the Federal Circuit and not here.

[00:15:01] Speaker 04:
I believe this case belongs here just as it did in Hasselwander.

[00:15:06] Speaker 01:
Because what, what did you say?

[00:15:08] Speaker 04:
As it did in Hasselwander.

[00:15:09] Speaker 04:
There was a records corrections issue in Hasselwander.

[00:15:13] Speaker 01:
There was no money claim in Hasselwander.

[00:15:16] Speaker 04:
That one specifically didn't have any money benefits to it.

[00:15:20] Speaker 04:
And that's the entire issue.

[00:15:22] Speaker 05:
That's the whole point.

[00:15:23] Speaker 05:
The whole point is when you put in your complaint that you want back pay, that's money.

[00:15:29] Speaker 05:
That's Tucker Act.

[00:15:31] Speaker 05:
We don't do Tucker Act.

[00:15:33] Speaker 05:
Correct.

[00:15:33] Speaker 05:
It's that simple.

[00:15:34] Speaker 05:
You're not being penalized.

[00:15:36] Speaker 05:
Your client's not being penalized.

[00:15:38] Speaker 05:
You're saying, no, Congress has said these types of claims belong in a different court for very good reasons.

[00:15:43] Speaker 04:
But I don't believe the court can actually point me to any case where someone has asked for attorney's fees and those attorney's fees have exceeded over $10,000 where that case has been transferred.

[00:15:55] Speaker 05:
Why do you keep talking about attorney's fees?

[00:15:57] Speaker 05:
You asked for back pay.

[00:15:58] Speaker 05:
That's the case that we have in front of us.

[00:15:59] Speaker 04:
But we also asked for attorney's fees.

[00:16:02] Speaker 04:
We asked for attorney fees and back pay, which both amount to over $10,000.

[00:16:09] Speaker 04:
But again, actually, I will differ that we didn't explicitly ask for back pay.

[00:16:18] Speaker 04:
We explicitly asked for attorney fees, and we explicitly asked for his records corrections, and that the agency do what it's supposed to do for anything that is triggered or naturally flows from that records corrections.

[00:16:31] Speaker 04:
And we gave a list of things

[00:16:32] Speaker 04:
And period.

[00:16:36] Speaker 04:
Thank you.

[00:16:36] Speaker 04:
Thank you very much.

[00:16:38] Speaker 04:
The case is submitted.