[00:00:00] Speaker 02:
We have three argued matters before the court today, as well as three submitted matters.

[00:00:09] Speaker 02:
But before we get there, we have some important motions that I understand Judge Toronto wants to make before the court.

[00:00:18] Speaker 00:
I will move the admission of my four current law clerks to the bar of this court.

[00:00:26] Speaker 00:
Before I do that formally, I want to

[00:00:30] Speaker 00:
Thank them and simultaneously express my admiration for a wonderful year of collaboration and advice and scholarship and occasional argument, but always productive.

[00:00:45] Speaker 00:
And I look forward to seeing them in this court and reading about their future careers, which are wonderfully promising.

[00:00:55] Speaker 00:
So I will move the admission of, I think I will do this collectively.

[00:01:00] Speaker 00:
stand.

[00:01:02] Speaker 00:
I move the admission of Grant Dixon, who is a member of the bar and in good standing with the highest court of District of Columbia.

[00:01:10] Speaker 00:
Emma Miller Kleiner, who is a member of the bar and in good standing with the highest court of California.

[00:01:24] Speaker 00:
Madeleine Laufheimer, a member of the bar and in good standing with the highest court

[00:01:29] Speaker 00:
her beloved state of Massachusetts, and Ben Picozzi, a member of the bar and in good standing with the highest court of California.

[00:01:41] Speaker 02:
Okay.

[00:01:43] Speaker 02:
Should we debate this?

[00:01:45] Speaker 04:
I don't think we need any debate.

[00:01:48] Speaker 02:
All right.

[00:01:49] Speaker 02:
We will grant the motion and all of you will be admitted to and are welcome to the bar.

[00:02:09] Speaker 02:
Okay, so the first case before the court today is Santana versus U.S.

[00:02:32] Speaker 02:
Docket number 162435.

[00:02:37] Speaker 02:
It is an appeal from the decision of the Merit System Protection Board.

[00:02:44] Speaker 02:
Mr. Wells, you want five minutes for a rebuttal?

[00:02:46] Speaker 03:
Yes, Your Honor.

[00:02:47] Speaker 02:
Okay, you may proceed.

[00:02:48] Speaker 03:
Thank you, Your Honor.

[00:02:51] Speaker 03:
May I please the Court, actually this is an appeal from the Court of Federal Claims.

[00:02:55] Speaker 03:
Your Honor, this is a military pay case.

[00:02:59] Speaker 03:
Despite all the efforts depended on something else, it is still a military pay case.

[00:03:03] Speaker 03:
And I would ask you to look at the complaint itself, which is probably the best testament at appendix 197, 198, the prayer for relief.

[00:03:15] Speaker 03:
It's a military pay case.

[00:03:16] Speaker 00:
So you're not, in this case, challenging the denial of a request for a special selection board?

[00:03:26] Speaker 03:
No, Your Honor.

[00:03:26] Speaker 03:
The only reason we made a request for a special selection board, and it was a conditional request, was because of

[00:03:32] Speaker 03:
the issue had come up.

[00:03:34] Speaker 03:
Until Crumbly, which was decided by the court below in 2015, there was no indication and no real belief, I think, that 1558, the Special Selection Board, even remotely attached a military pay case.

[00:03:48] Speaker 03:
And that's our contention today, is that 1558 does not attach.

[00:03:53] Speaker 03:
It requires it attaches to any kind of a board that is asking for a review of a promotion board or a selection board or a retention board

[00:04:02] Speaker 03:
But our case today, and the case in the court below, accrued at the time of discharge, and that's the only time it can accrue under Martinez, and accrued the issue was improper discharge.

[00:04:17] Speaker 03:
Anything else?

[00:04:18] Speaker 03:
Retaliation?

[00:04:20] Speaker 03:
Any selection board?

[00:04:22] Speaker 00:
What made the discharge improper?

[00:04:24] Speaker 03:
What made the discharge improper?

[00:04:26] Speaker 03:
was a number of things and those are the incidental and collateral things that we're talking about and that would have included the fact.

[00:04:33] Speaker 00:
I guess I, tell me if I'm wrong, I had understood from the complaint that there are two things you say are improper about the discharge.

[00:04:42] Speaker 00:
One, it rested on in particular a report that you claim was a reprisal for whistleblowing and second, in a much more minor way, that it in some way was affected by the detachment

[00:04:56] Speaker 00:
from the Afghanistan assignment sending Commander Santana back to Florida or something.

[00:05:05] Speaker 03:
And you're exactly right.

[00:05:06] Speaker 03:
And those were the circumstances that led up to the improper discharge.

[00:05:09] Speaker 02:
So both that detachment order, or to the government argues it wasn't really a detachment, but both that alleged detachment and the dismissal you're saying that what makes them wrong

[00:05:23] Speaker 02:
is essentially a violation of the Whistleblower Protection Act, correct?

[00:05:28] Speaker 03:
Not the Whistleblower Protection Act, Your Honor, because there's no cause of action under that per se, but under the DOD policies that talk about the whistleblowers.

[00:05:37] Speaker 03:
But it goes really to more than just whistleblowing.

[00:05:40] Speaker 02:
And if we allow you to bring these allegations of retaliation in the form of a military pay action, then why would anyone ever

[00:05:51] Speaker 02:
go through the special procedures for the Military Whistleblower Protection Act?

[00:05:57] Speaker 03:
Well, that's a good question, Your Honor.

[00:05:58] Speaker 03:
And frankly, I don't go through the special procedures for the Military Whistleblower Act because I have no faith in them.

[00:06:05] Speaker 03:
And we've had a number of cases that have brought up under the military pay, in which there has been an underlying whistleblower.

[00:06:11] Speaker 03:
But it's more than just the whistleblower aspect of it, Your Honor.

[00:06:14] Speaker 03:
It was the fact that she was trying to perform her duties as an environmental health officer in Afghanistan

[00:06:20] Speaker 03:
facing the burn pits and burn pits you know since her detachment have become you know uh... uh... very famous or infamous as far as causing veterans disability or disability for the active-duty services been called the eight the agent orange in the twenty-first century yet it wasn't just her reprisal for trying to bring this to the attention of uh... uh... of her bosses bosses at work but also for the fact that she was trying to do her job and in doing this in their job that's why she was detached

[00:06:50] Speaker 03:
and sent back.

[00:06:53] Speaker 02:
You haven't claimed, she didn't quit and say she was constructively discharged because the circumstances of her employment were problematic, correct?

[00:07:05] Speaker 02:
No ma'am, I didn't.

[00:07:06] Speaker 03:
And in fact, she didn't want to be detached.

[00:07:09] Speaker 03:
She did not want to be detached.

[00:07:11] Speaker 03:
She did not want to be discharged.

[00:07:13] Speaker 03:
She had 17 years and one month to go.

[00:07:17] Speaker 02:
What about that claim

[00:07:19] Speaker 02:
where you had originally said that there was supposed to be a presumptive continuation for anybody within six years of retirement, and you seem to have dropped that claim.

[00:07:32] Speaker 03:
No, ma'am, I didn't drop it.

[00:07:33] Speaker 03:
I'm sorry if you thought I did.

[00:07:35] Speaker 02:
Nothing in that appeal brief about it.

[00:07:38] Speaker 03:
Well, then I guess I didn't mention it.

[00:07:40] Speaker 03:
I apologize for that.

[00:07:42] Speaker 03:
But again, you know, that comes back to the boards itself, and we're not challenging the board.

[00:07:47] Speaker 03:
We're challenging the discharge.

[00:07:49] Speaker 03:
You know, anywhere along the line, not just with the board, the secretary of the Navy, chief naval personnel, everybody could have said 17 years, one month of service, retain her on active duty.

[00:08:02] Speaker 03:
Okay.

[00:08:02] Speaker 03:
That could have happened.

[00:08:04] Speaker 03:
And had she done 11 more months of active duty, she would have been in what they call the safe zone or the sanctuary where they actually could not have discharged her absent a court martial or a board of inquiry.

[00:08:16] Speaker 03:
You know, so it's the discharge itself.

[00:08:19] Speaker 03:
that we are contesting.

[00:08:20] Speaker 03:
And in fact, that's the only thing we can contest, because under the Military Pay Act and under the Tucker Act, it is the loss of the pay and the allowances that are the cause here at borrower, and not any particular issue under the selection boards.

[00:08:39] Speaker 03:
Otherwise, we would have had to do an Administrative Procedures Act case, and we could have done that.

[00:08:42] Speaker 03:
And at that point in time, I think we would have had to do a 1558 board.

[00:08:46] Speaker 03:
But the 1558,

[00:08:49] Speaker 03:
designation in the statute, nowhere does it really apply to a military pay act case.

[00:08:54] Speaker 03:
And one of the things, and I think you all saw the, again, I apologize for the lateness of it, about six weeks ago, they came out, the Navy came out and denied the 1558 book.

[00:09:04] Speaker 02:
So you have, though, you know, we have to look at jurisdiction in the court of federal claims as of the point in time that, at least as of the point in time that the judgment was entered in the court of federal claims.

[00:09:17] Speaker 02:
And at that point,

[00:09:18] Speaker 02:
You had not sought the additional review.

[00:09:22] Speaker 02:
Is that right?

[00:09:25] Speaker 03:
At the time the judgment was entered, we had sought it.

[00:09:27] Speaker 03:
The six month time period had not run.

[00:09:30] Speaker 00:
Okay.

[00:09:31] Speaker 03:
Okay.

[00:09:32] Speaker 03:
And there was no denial either by law or in fact, no, no, it was, it was still, um, they had six months to deny it.

[00:09:41] Speaker 03:
It took a year.

[00:09:42] Speaker 02:
We need to address that in this case, if you have another timely action.

[00:09:46] Speaker 03:
I think it goes only to the effect of, uh, uh, did we exhaust our administrative remedies, but your honors, I think they can judge, uh, trying to cut you off.

[00:09:56] Speaker 03:
The, uh, the other, but the most important issue is does 1558 attached to a military pay case and could it, if there was no board, uh, if they had, uh, uh, just, if it had been one of those cases where there was, uh, um,

[00:10:14] Speaker 03:
an administrative separation without a board.

[00:10:18] Speaker 03:
Certainly that wouldn't come under a 1558, but it would certainly be within the gamut of a military pay case.

[00:10:27] Speaker 03:
So if you find, Your Honors, that 1558 attaches to a military pay case, that I think is going to be a major change in the law, because nowhere before have any of these administrative remedies

[00:10:41] Speaker 03:
been attached to a military pay case.

[00:10:46] Speaker 00:
So that sounds like you're saying there have been cases, and I guess the question will be what cases, please tell me what they are, in which a military pay act case was adjudicated challenging a discharge that occurred through

[00:11:04] Speaker 00:
this series of promotion selection, continuation, special selection boards, and that process had not in fact run its course.

[00:11:14] Speaker 00:
And yet the court of federal claims heard a challenge to the discharge seeking money that would have been paid had the discharge not occurred.

[00:11:23] Speaker 03:
Well, on that exact set of facts, Your Honor, I don't think there is one.

[00:11:26] Speaker 03:
And probably because 1558 is still new enough.

[00:11:29] Speaker 03:
It's still working itself, it's way through the courts, but I would take you back to Martinez.

[00:11:33] Speaker 00:
But the 628 version of it, not for the... 628 doesn't even come close, Your Honor.

[00:11:39] Speaker 00:
I mean, it's... But those also would be discharges as a result of decisions not to promote and so on.

[00:11:49] Speaker 03:
Oh, I see what you're saying.

[00:11:50] Speaker 03:
In a 628 case, I can't tell you of any decisions.

[00:11:53] Speaker 03:
As I looked under 628, I didn't find any.

[00:11:57] Speaker 03:
You know, this is, this was not even a, did not even meet the threshold requirements for 628.

[00:12:03] Speaker 03:
You know, it was not, there's two requirements for 628.

[00:12:06] Speaker 03:
Either it has to be because of, let me go back to my notes here, not considered for promotion and should have been, or anybody considered by the board was considered an unfair manner.

[00:12:20] Speaker 03:
We've never argued that because the board had the record before it, the board

[00:12:26] Speaker 03:
made their decision based on the record.

[00:12:28] Speaker 00:
Can I ask this?

[00:12:30] Speaker 00:
What is it that you cannot do in your new lawsuit, the one that you filed in December of last year, just before the six year statute of limitations ran after the denial of the special selection board?

[00:12:44] Speaker 00:
What is it that you can't do press in that case that you're pressing here?

[00:12:50] Speaker 03:
Well, that's an excellent question, your honor.

[00:12:55] Speaker 03:
My concern

[00:12:56] Speaker 00:
Unless it seems to me you probably can at least press the detachment that the detachment was procedurally improper and that in turn led to the chain that led to the discharge and that should have been taken care of by the secretary and then send it back for a special selection board.

[00:13:15] Speaker 00:
The reprisal I'm not so sure about because it's not clear to me whether the exhaustion through the special selection process

[00:13:23] Speaker 00:
is the relevant exhaustion for the military whistleblower protection?

[00:13:28] Speaker 03:
And, Your Honor, my concern is that if we, and I'm sorry, I'm in into my rebuttal time, but my concern is that if you affirm the case, then now all of a sudden, 1558 is going to apply to military pay acts.

[00:13:41] Speaker 03:
And I'm not sure that's the correct thing to do at this point.

[00:13:45] Speaker 03:
If you remand it,

[00:13:47] Speaker 03:
then what we would do is consolidate the two cases.

[00:13:50] Speaker 00:
Well, I guess what I was trying to figure out is as a practical matter, what difference would there be between remanding and just affirming this one, but the new one goes forward because this one

[00:14:02] Speaker 00:
isn't with prejudice to your proceeding once the exhaustion occurred?

[00:14:07] Speaker 03:
No, Your Honor.

[00:14:08] Speaker 03:
The only prejudice would be that there would certainly be an argument that you have affirmed that 1558 attaches to a military pay case.

[00:14:15] Speaker 03:
I see.

[00:14:15] Speaker 03:
And that's what I can say.

[00:14:16] Speaker 04:
Couldn't we find that 1558 attaches here?

[00:14:19] Speaker 04:
Because what you have is a whistleblower protection act case that's masquerading as a military pay act case.

[00:14:26] Speaker 04:
So 1558 would apply in that instance.

[00:14:28] Speaker 03:
It would, but Your Honor, I think that would be

[00:14:33] Speaker 03:
not what we are actually, what we've come forth with, because we're not trying to masquerade.

[00:14:41] Speaker 03:
The information on reprisal and so on and so forth were factual contexts.

[00:14:45] Speaker 04:
Well, those factual contents, when I look at the complaint, you've got two counts and they're both retaliatory in nature.

[00:14:53] Speaker 04:
I'm sorry, Your Honor.

[00:14:55] Speaker 04:
You have two counts in your complaint and they're both retaliatory in nature.

[00:14:59] Speaker 03:
Yes, Your Honor.

[00:15:00] Speaker 03:
But our actual prayer for relief addresses only the denial of the military paying allowances.

[00:15:09] Speaker 03:
And Your Honors, I'm sorry.

[00:15:10] Speaker 03:
I am into my rebuttal time.

[00:15:11] Speaker 02:
Then we'll save the rest of it for you.

[00:15:13] Speaker 03:
Thank you, Your Honor.

[00:15:25] Speaker 01:
May it please the court.

[00:15:28] Speaker 01:
Lieutenant Commander Santana brought this action seeking military pay, but her substantive allegations of error all focus on an adverse fitness report, which she claims was a reprisal for alleged whistleblowing and which in turn led to her non-selection for promotion and ultimately her discharge.

[00:15:50] Speaker 00:
How does the fitness report relate to the claim of procedural error in

[00:15:58] Speaker 00:
telling her to leave Afghanistan.

[00:16:00] Speaker 00:
Let's call that a detachment.

[00:16:03] Speaker 01:
Your Honor, the allegation is that the fitness report itself, which was prepared on occasion of Lieutenant Commander Santana's detachment from Afghanistan, that that routine detachment report was a constructive detachment for cause.

[00:16:28] Speaker 01:
And we've argued in the briefs and laid it out that there's no such thing as a constructive detachment for cause.

[00:16:34] Speaker 01:
That is an actual adjudication by the military personnel branch that someone needs to be detached for cause.

[00:16:45] Speaker 01:
The words detachment for cause do not appear on the fitness report.

[00:16:49] Speaker 02:
She was clearly sent home early.

[00:16:51] Speaker 01:
No question about it.

[00:16:52] Speaker 01:
And there are military regulations that detail the process for whenever

[00:16:58] Speaker 01:
someone is detached from their current unit and are sent home to their base unit, those are the routine detachment regulations that were followed here.

[00:17:11] Speaker 02:
I mean, it seems a little circular.

[00:17:13] Speaker 02:
He's saying that she was effectively detached because she was sent home early because they felt she wasn't playing well in the sandbox.

[00:17:22] Speaker 02:
No pun intended with Afghanistan over there.

[00:17:25] Speaker 02:
I'm sure there's a lot of sand.

[00:17:26] Speaker 02:
but that she was not fitting in well with her colleagues over there.

[00:17:30] Speaker 02:
So she gets sent home.

[00:17:32] Speaker 02:
She said that's a detachment.

[00:17:33] Speaker 02:
And you said it can't be a detachment because we didn't follow all the rules relating to a detachment.

[00:17:39] Speaker 02:
And that's exactly his complaint, is that you didn't follow all the rules relating to a detachment.

[00:17:43] Speaker 01:
Not exactly, Your Honor.

[00:17:46] Speaker 01:
There is no question.

[00:17:47] Speaker 01:
We all agree that there was a detachment.

[00:17:51] Speaker 01:
And there are rules for when a service member is detached.

[00:17:56] Speaker 01:
when you have to prepare a fitness report, and those rules were implicated here.

[00:18:00] Speaker 01:
There is something else.

[00:18:03] Speaker 01:
It is a term of art.

[00:18:04] Speaker 01:
It's called a detachment for cause, which is an administrative adjudication that requires the detachment of a particular service member.

[00:18:14] Speaker 04:
When you speak in terms of detachment for cause, it's my understanding that what we're referring to as detachment, for example, from a

[00:18:24] Speaker 04:
current assignment or a tour of duty and not detachment for cause from the military?

[00:18:34] Speaker 04:
Is that your understanding?

[00:18:38] Speaker 01:
If I understand your question correctly, Your Honor, a detachment for cause is not a discharge from the military.

[00:18:48] Speaker 01:
It is a detachment from your current unit to a different assignment.

[00:18:53] Speaker 04:
Correct.

[00:18:54] Speaker 04:
What Judge Firestone did is she may have erred in looking at her review on detachment for cause based on a discharge from service as opposed to just a detachment from her current tour of duty in Afghanistan.

[00:19:12] Speaker 04:
And if that is a case, is that a harmless error?

[00:19:16] Speaker 01:
If Judge Firestone committed any error, it was bending over backwards to liberally construe

[00:19:23] Speaker 01:
the complaint as alleging any possible claim within the trial court's jurisdiction.

[00:19:29] Speaker 01:
But when we're talking about the adverse fitness report, which is the alleged detachment for cause.

[00:19:37] Speaker 02:
Right, because it says the reason she was sent home were all these bad things that she did.

[00:19:41] Speaker 01:
That's right.

[00:19:42] Speaker 01:
But that only has relevance in the context of the allegation that

[00:19:51] Speaker 01:
the detachment for cause was a reprisal for whistleblowing, that it led to her non-selection.

[00:19:56] Speaker 01:
And Title X establishes administrative remedies for whistleblower and non-selection issues.

[00:20:03] Speaker 01:
And so we respectfully submit that the detachment for cause issue is really part and parcel of the whistleblower and the non-selection issues.

[00:20:12] Speaker 02:
Let me ask you about the whistleblower, because there might be good reason why it doesn't completely trust

[00:20:21] Speaker 02:
the administrative procedures under the Whistle Bowl Protection Act.

[00:20:24] Speaker 02:
As I read it, once the Inspector General does a report, that is supposed to actually be sent to deliver to both the Secretary of Defense and the Secretary of the Navy, and they are supposed to affirmatively act on those reports.

[00:20:39] Speaker 02:
And instead, the Inspector General sent it to the Board of Corrections.

[00:20:43] Speaker 02:
And the procedures don't seem to have ever been followed by the government.

[00:20:48] Speaker 01:
Your Honor, that is not the case.

[00:20:51] Speaker 01:
Please allow me to explain.

[00:20:53] Speaker 01:
That's the first level of administrative remedies for whistleblower issues.

[00:21:01] Speaker 01:
Now, the inspector general may determine that a full-blown investigation is warranted, in which case a report of investigation would be generated.

[00:21:12] Speaker 01:
Or, as what happened in this case, the inspector general could conduct a threshold review and determine that there is insufficient

[00:21:21] Speaker 01:
evidence to warrant an investigation.

[00:21:25] Speaker 01:
So at the first level of review, Lieutenant Commander Santana received a decision from the Inspector General that there would be no full-blown investigation.

[00:21:35] Speaker 01:
The administrative review process provides expressly in the statute that if the service member or former service member is unsatisfied with the results of the IG's look at the matter, then

[00:21:50] Speaker 01:
The next step, the second stage of the administrative review process, is to go to the relevant corrections board.

[00:22:01] Speaker 01:
And if the service member is unsatisfied as a result of the second step, at the corrections board level, there is a special provision in the law that allows for review by the Secretary of Defense.

[00:22:16] Speaker 01:
That's the third tier in the

[00:22:19] Speaker 01:
the wedding cake of administrative remedies.

[00:22:23] Speaker 01:
And here, Lieutenant Commander Santana took the first step, went to the IG.

[00:22:29] Speaker 01:
The IG determined there was insufficient cause to warn an investigation.

[00:22:35] Speaker 01:
Lieutenant Commander Santana initiated the second step.

[00:22:38] Speaker 01:
She filed at the BCNR, but then affirmatively withdrew her petition voluntarily on her own accord

[00:22:47] Speaker 01:
and thus deprived the military of making a determination in accordance with the administrative review process that is set forth in the statute.

[00:22:59] Speaker 01:
And we respectfully submit, Your Honors, that the administrative remedies for whistleblowing are exclusive.

[00:23:06] Speaker 00:
Can I ask you this as a practical matter?

[00:23:09] Speaker 00:
Can she now go and seek administrative relief

[00:23:16] Speaker 00:
on her reprisal claim or is she timed out?

[00:23:23] Speaker 01:
Your honor, the administrative remedies available to her now include going to the Board of Corrections.

[00:23:33] Speaker 00:
1552, right?

[00:23:35] Speaker 01:
Well, under 1034.

[00:23:40] Speaker 00:
That's the military whistleblower protection?

[00:23:43] Speaker 00:
Yes, sir.

[00:23:44] Speaker 00:
It refers expressly to, says one way you can do this is go to the Corrections Board.

[00:23:48] Speaker 00:
Yes.

[00:23:48] Speaker 00:
And is she timed out for doing that or not?

[00:23:51] Speaker 01:
The Corrections Board has a discretionary three-year limitations period, which is frequently waived.

[00:24:00] Speaker 01:
So she can at least try?

[00:24:02] Speaker 01:
She certainly can.

[00:24:03] Speaker 02:
Even though she went there once and withdrew it.

[00:24:06] Speaker 01:
That's right, your honor.

[00:24:07] Speaker 01:
And in fact, from day one in this case, we've encouraged Lieutenant Commander Santana to go through the correct process.

[00:24:15] Speaker 00:
Do you have a position about whether you would invoke waiver if she did that?

[00:24:20] Speaker 00:
If she went to the corrections board and said, sorry for withdrawing the last one.

[00:24:25] Speaker 00:
Now I'd like you to consider it.

[00:24:27] Speaker 00:
Does the secretary participate as an adverse party in that process so that

[00:24:32] Speaker 00:
Um, you would either be able to say, um, you should waive it here.

[00:24:38] Speaker 00:
I know you often don't, but you should hear, or are you in a position to say, um, we won't invoke waiver and you, the corrections board shouldn't, uh, invoke waiver.

[00:24:49] Speaker 00:
You should address this reprisal claim on the merits, even though it's, um, some years late.

[00:24:57] Speaker 01:
I understand the question, but it would be inappropriate for me to say.

[00:25:01] Speaker 01:
before the Navy exercises the discretion in the first instance for us to comment on that question at this time.

[00:25:15] Speaker 02:
You argued that Klingerschmidt was correct in concluding that this is an exclusive remedy for retaliation claims, that in other words you can't have, as Judge Raina put it, a military pay act claim that masquerades as a

[00:25:30] Speaker 02:
whistleblower protection claim, you also argue that there is then no judicial review of that determination.

[00:25:40] Speaker 02:
Do we even need to address that second question that was decided by Klinger-Schmidt at this point in time?

[00:25:48] Speaker 01:
It's extremely important for the court to address whether the administrative remedies for military whistleblowing are an exclusive remedy.

[00:25:58] Speaker 01:
If for no other reason than the subsequent case in the trial court, which is a carbon copy of the first case, raises all the same whistleblowing merits issues that the court had before in this case.

[00:26:16] Speaker 04:
Is there ever a situation where the factual basis that would support the whistleblower action also support a military pay act action

[00:26:26] Speaker 04:
And assuming that you divide the relief you're looking for instead of looking to be placed back into employment, you're actually looking for a loss of pay.

[00:26:38] Speaker 01:
It is possible.

[00:26:38] Speaker 01:
And we could look at this case that way.

[00:26:41] Speaker 01:
There is, without question, the focus of the underlying allegations of error are alleged whistleblowing in this case.

[00:26:53] Speaker 01:
Adverse fitness report, you know, if we set all the alleged whistle blowing aside and it is viewed solely in the context of a claim that my Lieutenant Commander Santana's fitness report was inaccurate and it led to non-selection for promotion and ultimately discharge.

[00:27:14] Speaker 01:
There would be a military payout claim if the administrative remedies were exhausted under 628 and 1558.

[00:27:22] Speaker 01:
to adjudicate the question of whether the special selection board was supported by substantial evidence and not arbitrary and capricious, and that the APA standard of review would apply.

[00:27:39] Speaker 01:
And that would be within the trial court's jurisdiction.

[00:27:43] Speaker 01:
But what we have here is a situation where perhaps due to disdain for the administrative review process, we have

[00:27:52] Speaker 01:
a litigant who has completely ignored intentionally the administrative review process that is robust and is provided for by statute.

[00:28:07] Speaker 01:
And when the law was passed, the original Military Whistleblower Protection Act bill had a judicial review provision in it, providing for APA-style judicial review for the most part.

[00:28:21] Speaker 00:
Well, can I just, I guess this picks up on a point raised by Judge O'Malley before.

[00:28:30] Speaker 00:
Since it's clear that in the case we have in front of us, and maybe even in the December 2016 case, there hasn't been administrative exhaustion of the whistleblower remedies.

[00:28:47] Speaker 00:
I'm not quite sure whether that's true in the 2016 case, because maybe getting the new letter from, about not having a special selection board isn't quite enough.

[00:28:58] Speaker 00:
Maybe you have to go to the correction board, but in any event, doesn't your idea of respect for those administrative remedies

[00:29:08] Speaker 00:
tend to support the notion that it's premature for us to conclude that even once those remedies are exhausted, there is no military pay act judicial review, that we should wait until there's a case in which they have been exhausted and then face the reviewability question.

[00:29:28] Speaker 00:
I know you want a favorable answer like yesterday, but isn't it...

[00:29:36] Speaker 01:
For the new case, I will answer your question, but just the predicate leading up to your question was that, well, now there's been some exhaustion, but that's only with respect to the request for a selection board.

[00:29:49] Speaker 01:
There's been no exhaustion, no complete exhaustion relative to the military whistleblower issues.

[00:29:56] Speaker 01:
Is that because they went to the wrong place?

[00:29:58] Speaker 01:
No, Your Honor, it's because the Lieutenant Commander Santana has not gone to the corrections board.

[00:30:04] Speaker 02:
Because she withdrew it.

[00:30:06] Speaker 01:
That's right.

[00:30:06] Speaker 01:
That's right.

[00:30:07] Speaker 01:
And then she didn't request review by the secretary of the Navy or secretary of defense.

[00:30:13] Speaker 01:
And no decision is final until you go through that administrative process.

[00:30:17] Speaker 01:
And that's the same.

[00:30:18] Speaker 02:
So we don't have a final decision as to which we could decide whether we have judicial review, whether under the APA or otherwise, as it relates to the Whistleblower Protection Act.

[00:30:33] Speaker 01:
I understand where your question is going and it's possible that the court could save it for another day, but this was squarely decided by the trial court and we've all briefed the matter and we respectfully submit that it is ripe for a decision today and would help provide helpful guidance to the trial court

[00:30:59] Speaker 01:
and to service members generally to have a ruling on this very important issue.

[00:31:04] Speaker 04:
The claims court can't entertain APA claims, correct?

[00:31:11] Speaker 01:
Only if there's a money-mandating component.

[00:31:13] Speaker 04:
Okay.

[00:31:15] Speaker 04:
And the Whistleblower Act, that's not a money-mandating act?

[00:31:19] Speaker 01:
That's right, Your Honor.

[00:31:20] Speaker 01:
This court has twice held in per curiam decisions that the Military Whistleblower Protection Act is not money-mandating.

[00:31:29] Speaker 00:
Can I ask this?

[00:31:30] Speaker 00:
The language of 1558 says if the secretary or his designee refuses a special selection board, a court of the United States can review that.

[00:31:52] Speaker 00:
What's the basis for the Court of Federal Claims being such a court?

[00:31:58] Speaker 00:
I gather you agree that it is.

[00:32:01] Speaker 01:
Yes, because the Military Pay Act claim based on the discharge pursuant to non-selection.

[00:32:08] Speaker 00:
So the idea is that even if the initial relief is you were wrong in not having a special selection board, the remedy is go and have a special selection board and then you come back.

[00:32:19] Speaker 00:
It's all kind of supplemental or a precursor to an eventual pay claim.

[00:32:27] Speaker 01:
That's right.

[00:32:28] Speaker 01:
I mean, it's all part of a claim that the service member is no longer receiving their military pay.

[00:32:35] Speaker 00:
And is the question of exhaustion, there are two separate questions about the relationship between the Military Whistleblower Protection Act and the Military Pay Act.

[00:32:47] Speaker 00:
One is does the former actually bar judicial review?

[00:32:50] Speaker 00:
But the second is just, it's an exhaustion question.

[00:32:53] Speaker 00:
Would we treat the exhaustion question as a matter of jurisdiction or simply, and therefore dismissal for one of jurisdiction or dismissal on the merits or does that not matter?

[00:33:08] Speaker 01:
Traditionally, exhaustion is considered to be a question of jurisdiction because we wouldn't want to say that

[00:33:16] Speaker 01:
a party who comes to court and hasn't exhausted their administrative remedies, it's one shot and done.

[00:33:22] Speaker 01:
If you haven't exhausted your remedies... It saves the preclusive effect.

[00:33:26] Speaker 01:
Exactly.

[00:33:26] Speaker 01:
You don't have a dismissal on the merits that would preclude a return to court once the administrative remedies were exhausted.

[00:33:36] Speaker 02:
Okay.

[00:33:36] Speaker 02:
You're out of time.

[00:33:37] Speaker 01:
Thank you.

[00:33:38] Speaker 02:
We'll give you three minutes for your reply.

[00:33:41] Speaker 03:
Your Honor, I spent

[00:33:46] Speaker 03:
Sorry.

[00:33:47] Speaker 03:
I spent 22 years in the military, in the United States Navy, and when they fire somebody and send them home, that's a detachment for cause.

[00:33:53] Speaker 03:
What we saw here with Commander Santana's detachment for cause.

[00:33:56] Speaker 03:
What does fire mean?

[00:33:57] Speaker 03:
Fire as you get out of here.

[00:34:00] Speaker 00:
Well, go away from here.

[00:34:02] Speaker 00:
Go away, don't come back.

[00:34:03] Speaker 00:
But you're still getting your same pay?

[00:34:05] Speaker 03:
That's correct.

[00:34:06] Speaker 03:
Yeah.

[00:34:06] Speaker 03:
We use the term fire just as you're fired off the ship or fired up, whatever.

[00:34:12] Speaker 02:
But there is a formal

[00:34:15] Speaker 02:
thing that's called a detachment for cause.

[00:34:17] Speaker 02:
And so you're saying that somehow the fitness report was effectively that?

[00:34:25] Speaker 03:
No, the fitness report just reflected the fact that she was transferred early and transferred for cause, really.

[00:34:37] Speaker 03:
And that's what it was.

[00:34:37] Speaker 02:
So you're saying it essentially had the same effect as a detachment for cause in terms of her ability to get promoted or to be continued.

[00:34:44] Speaker 03:
Yes, your honor.

[00:34:45] Speaker 03:
And that's exactly right.

[00:34:46] Speaker 03:
But they did not follow the procedures.

[00:34:48] Speaker 00:
But you know, the other thing in... Well, I guess this is what I... I mean, I came in here thinking, let me just ask again.

[00:34:54] Speaker 00:
I'm sorry if we're going over old ground.

[00:34:55] Speaker 00:
You have your new suit, your December 2016 suit.

[00:34:59] Speaker 00:
in which you're challenging the denial of the special selection board.

[00:35:03] Speaker 00:
Why is that not an appropriate action in which you can say there was the ultimate separation, the denial of separation from the service was a consequence, slightly indirect, but nevertheless a consequence of a procedurally unlawful detachment

[00:35:27] Speaker 00:
And I'm entitled to relief for that.

[00:35:30] Speaker 03:
To an extent, Your Honor, that's what we did in both cases, because all of these factors go to the military pay.

[00:35:36] Speaker 03:
The cause of action is military pay.

[00:35:38] Speaker 03:
But if I put in a complaint that says Lieutenant Commander Santana was deprived of military pay because she was discharged improperly and don't provide any underlying facts, you're going to say, why?

[00:35:51] Speaker 03:
And that's what we've been doing with all this information that the government is

[00:35:55] Speaker 03:
objecting to is showing underlying facts, context, reason why she was discharged, and why that was an improper deprivation of a pain allowance.

[00:36:10] Speaker 02:
But in this case, as it relates to the continuation board and the special selection board, in this particular case, the most we could do would be to remand, to allow you to amend your complaint to assert

[00:36:26] Speaker 02:
a claim now having exhausted your administrative remedies, right?

[00:36:33] Speaker 03:
No, Your Honor, because the administrative remedy does not apply.

[00:36:37] Speaker 03:
Our position is that it does not apply.

[00:36:41] Speaker 02:
On the detachment, it doesn't?

[00:36:43] Speaker 03:
It doesn't apply.

[00:36:44] Speaker 03:
Well, there was no administrative remedy for the detachment.

[00:36:48] Speaker 03:
I'm talking about the argument that you should have been entitled to a special selection.

[00:36:54] Speaker 03:
Oh, I see what you're saying.

[00:36:55] Speaker 03:
We weren't, what we should have been entitled to was a review by the chief of naval personnel as to whether or not that detachment was proper and that's what the military personnel manual says and we didn't get that.

[00:37:09] Speaker 03:
But, you know, our cause of action today is really due to the military pay.

[00:37:14] Speaker 03:
If I could give you an example, if everything happened, okay, the way it did, reprisal,

[00:37:21] Speaker 03:
You know, non-selection for promotion, detachment for cause, everything.

[00:37:28] Speaker 03:
And she stayed on active duty until she had her time for retirement.

[00:37:34] Speaker 03:
We would not have had a cause of action under the Military Pay Act.

[00:37:38] Speaker 03:
We would have had to have gone to the Administrative Procedures Act.

[00:37:41] Speaker 03:
The only thing that gives us the cause of action is the fact that she was discharged early, okay?

[00:37:47] Speaker 03:
That's the cause of action.

[00:37:49] Speaker 03:
Everything underlying is incidental to and collateral to.

[00:37:52] Speaker 03:
And this court is always held, and so is the Court of Federal Claims, that you can bring up things like fitness reports and so on and so forth as incidental and collateral.

[00:38:01] Speaker 03:
As far as the administrative remedies go, and Judge Toronto, I see that's the way you're going there.

[00:38:06] Speaker 03:
We don't want to go to the Board of Corrections and Naval Records.

[00:38:09] Speaker 03:
Why?

[00:38:09] Speaker 03:
Because we have no confidence in it.

[00:38:11] Speaker 03:
That's why you're seeing more and more military pay cases.

[00:38:15] Speaker 00:
Congress did.

[00:38:16] Speaker 03:
Well, Congress may be changing that.

[00:38:19] Speaker 03:
There have been a couple of bills coming up through that we've supported to try to change it, and we're hopeful that it's going to be changed someday.

[00:38:26] Speaker 03:
The problem is the board itself has just become a whitewash for the department, in my opinion.

[00:38:33] Speaker 03:
And I've done a lot of these cases, and I've seen the BCNR especially.

[00:38:36] Speaker 02:
But until Congress changes the procedures, you can't just say, I don't trust them, so I'm not going to go through them.

[00:38:42] Speaker 03:
In a military pay case, though, under Martinez, Your Honor?

[00:38:45] Speaker 03:
going to the correction board is not required.

[00:38:49] Speaker 03:
I mean, that's why we ran the court of cases under the Military Pay Act.

[00:38:53] Speaker 03:
It was the Administrative Procedures Act case in the District Court.

[00:38:55] Speaker 03:
Sure, we'd have to go to the board.

[00:38:59] Speaker 03:
And like I said, that's why you're starting to see more and more of these military pay cases is because people have lost confidence in the board.

[00:39:06] Speaker 00:
Martinez wasn't a whistleblower case, right?

[00:39:08] Speaker 00:
Martinez was not, no.

[00:39:09] Speaker 00:
So it seems to me there are two distinct exhaustion issues, one having to do with the whistleblower statute in which one could say at a minimum you have to exhaust the 1034

[00:39:24] Speaker 00:
designated processes, which in this case probably means going back to the corrections board.

[00:39:30] Speaker 00:
And the other is the procedural error in the, the alleged procedural error in what you say was in fact a detachment for cause, which probably has been exhausted because that didn't cause a pay problem until the separation.

[00:39:45] Speaker 00:
And the separation, I know you disagree, is perhaps subject to a 1558 exhaustion.

[00:39:52] Speaker 03:
And your honor, if this was a straight out whistleblower case, I would agree with you 100%.

[00:39:59] Speaker 03:
But it's not.

[00:40:00] Speaker 03:
The whistleblower is a factual context and an incidental and collateral to it.

[00:40:07] Speaker 03:
It's just like I said, I can't write a complaint that says Commander Santana was discharged improperly without having any underlying facts or showing what led to that improper discharge.

[00:40:18] Speaker 03:
And that's where it was.

[00:40:20] Speaker 03:
real good about getting in there and kind of confusing the issue there and making it look like we're coming after a whistleblower and fitness reports and so on and so forth.

[00:40:30] Speaker 03:
All of those are incidental and collateral too.

[00:40:33] Speaker 03:
The problem, the case was military pay, improper discharge, improper discharge cost her military pay and allowances under the Military Pay Act.

[00:40:43] Speaker 03:
And I've been sitting here watching this, and I all of a sudden didn't realize it's not going down, it's going up.

[00:40:49] Speaker 03:
So I apologize for that.

[00:40:53] Speaker 03:
Your Honor, do you have any more questions?

[00:40:55] Speaker 03:
No.

[00:40:56] Speaker 03:
OK, thank you so much.

[00:41:00] Speaker 02:
OK, that case will be submitted.