[00:00:00] Speaker 00: Case number 24-5269, Alexander R. Kerscher and balance versus Daniel Prisco, Honorable Secretary of the Army. [00:00:10] Speaker 00: Mr. Pristera for the imbalance, Mr. Walker for the envelope. [00:00:14] Speaker 02: Proceed when ready, Council. [00:00:16] Speaker 04: Thank you very much, Your Honor. [00:00:17] Speaker 04: Just one moment. [00:00:19] Speaker 04: May I please support? [00:00:19] Speaker 04: My name is Brian Pristera. [00:00:21] Speaker 04: I'm here on behalf of Mr. Alexander Kerscher. [00:00:23] Speaker 04: For this appeal, this appeal comes from a decision of the district court on an administrative procedure act decision. [00:00:32] Speaker 04: The case against the army and the army board of correction of military records. [00:00:37] Speaker 04: for an arbitrary and capricious abuse of discretion in a decision that's dated from 2020 in this case. [00:00:44] Speaker 04: Now, Mr. Kerser's military history is lengthy and complicated. [00:00:48] Speaker 04: It's detailed in our briefs. [00:00:50] Speaker 04: I'm not going to go through the entirety of that. [00:00:53] Speaker 04: Suffice it to say, however, it started in 1983. [00:00:56] Speaker 04: He served multiple deployments as a special forces qualified soldier. [00:01:01] Speaker 04: At some point during the course of his service, his special course of qualification became a contested issue between him and the Army. [00:01:09] Speaker 04: Now, during the course of about two decades, he served in both the Washington Army National Guard, the California Army National Guard, the United States Army Reserve, and on active duty in periods of deployment [00:01:23] Speaker 04: um, and transfer between those branches at various points. [00:01:26] Speaker 04: And so the issue that comes to this book to this court today is related to, um, related to the documents that, um, that both qualify him for his special forces qualification, which started back in 1983, uh, and also with an NGB 22 is the name of the form National Guard Bureau 22. [00:01:47] Speaker 04: which is a form that summarizes the completion of a period of National Guard service. [00:01:53] Speaker 04: Every time a member serves in the National Guard, you get an NGB 22 at the time that you get out of that period of service. [00:02:00] Speaker 04: And whether those documents were fraudulent or not, or procured by fraud in some manner. [00:02:09] Speaker 04: So these allegations initially arose in the early 2000s. [00:02:12] Speaker 04: And it was determined that Mr. Kerscher had fraudulently enlisted in the California Army National Guard and the U.S. [00:02:21] Speaker 04: Army Reserve. [00:02:23] Speaker 02: Before we dig more into, I mean, I think we're all familiar with the history. [00:02:28] Speaker 02: Yes, Your Honor. [00:02:29] Speaker 02: As laid out in the briefs. [00:02:31] Speaker 02: My colleagues have questions I don't mean to impose, but this court did ask you all to address a jurisdictional question. [00:02:40] Speaker 02: For us about whether this. [00:02:44] Speaker 02: District court or we have jurisdiction, which turns on. [00:02:49] Speaker 02: The amount of back pay that is requested here. [00:02:53] Speaker 02: Do you know how much the dollar value of the back pay that is requested here? [00:02:59] Speaker 04: No, your honor. [00:03:01] Speaker 01: The government plausibly contends it's over $10,000, the jurisdictional threshold, given the number of years for which Mr. Kerscher seeks back pay. [00:03:12] Speaker 01: And Mr. Kerscher's reply doesn't dispute that. [00:03:15] Speaker 01: So should we accept that? [00:03:20] Speaker 01: We don't have jurisdiction over the back pay claim. [00:03:23] Speaker 04: I think that that's correct, Your Honor, in terms of the amount of money. [00:03:27] Speaker 01: So we don't have any jurisdiction over the back pay. [00:03:29] Speaker 04: Well, Your Honor, as I said in my brief, I don't think it's our position that the Tucker Act doesn't apply to this case because the back pay is not [00:03:44] Speaker 01: Right. [00:03:45] Speaker 01: You had made an argument that it is equitable rather than monetary relief. [00:03:51] Speaker 01: But if we disagree on that point, then you're not disputing. [00:03:54] Speaker 04: That's correct. [00:03:55] Speaker 04: If you disagree on that point, then I would concede the rest of the argument on that basis. [00:03:59] Speaker 04: Yes, Your Honor. [00:04:01] Speaker 03: Sorry. [00:04:01] Speaker 03: What would you concede? [00:04:02] Speaker 03: Suppose we think the back pay claim has to go to the Court of Federal Claims. [00:04:10] Speaker 03: What are you conceding? [00:04:13] Speaker 04: Only that if it's non-equitable, if the court determines that the back pay was non-equitable, then that issue would have to be raised at the federal court of claims. [00:04:23] Speaker 04: That would be the only point that I would agree with. [00:04:25] Speaker 04: I don't have anything to say otherwise. [00:04:27] Speaker 02: I'm a little confused about what we're supposed to do with this $10,000 threshold. [00:04:34] Speaker 02: You haven't figured out how much backpaying he's owed? [00:04:38] Speaker 02: Well, if it happens to be less than 10,000, $9,999.99, or even just 10,000 flat, if it's less than that, less than 10,000, this court doesn't have appellate jurisdiction. [00:05:00] Speaker 02: Over that claim. [00:05:01] Speaker 02: Over that claim. [00:05:02] Speaker 02: Yes, Your Honor. [00:05:03] Speaker 02: Your burden as an appellant to demonstrate, not just a court jurisdiction, but our jurisdiction. [00:05:09] Speaker 02: And it sounds like we've got an educated guess from the government, but no one making any actual calculations that determine our jurisdiction. [00:05:26] Speaker 04: Yes, your honor. [00:05:27] Speaker 04: I think that's because it's it's it was viewed as an equitable request based on the fact that there's no it's viewed as an equitable request, but it's also it would also be based on exactly where the constructive service [00:05:44] Speaker 04: had it been granted would have been placed in a timeline. [00:05:48] Speaker 04: And so that all matters in terms of the calculation. [00:05:52] Speaker 04: I think there's probably different numbers that you could arrive at depending on what the answers to those questions are. [00:05:57] Speaker 04: So it's not a request for specified damages or like a liquidated damages type of claim. [00:06:04] Speaker 04: Rather, it is a request that reflects the result of [00:06:09] Speaker 04: other decisions that would have been made by the board. [00:06:12] Speaker 02: I understand it's a complicated inquiry, but we don't have jurisdiction to hear this appeal at all. [00:06:20] Speaker 02: A single one of the issues, equitable or not, or the other equitable claims, if not, if this is under $10,000. [00:06:34] Speaker 02: or flat with 10,000. [00:06:37] Speaker 04: Yes, Your Honor. [00:06:37] Speaker 02: So how do we know we have jurisdiction? [00:06:40] Speaker 02: I get it's complicated, but we can't hear any of your arguments if we don't have that jurisdiction. [00:06:48] Speaker 04: I definitely appreciate the court's dilemma on that. [00:06:51] Speaker 04: I don't have an answer for the court. [00:06:57] Speaker 02: Did he at some point in this long timeline start receiving retirement pay? [00:07:04] Speaker 04: he's, I believe so, I would want to get, I would want to clarify that 100% for the court, but I believe in 2019, he became transferred to the retired reserve and receiving retired pay, which is the age 60. [00:07:17] Speaker 02: So if back pay were owed, I assume would be an offset for whatever retirement he got, maybe it would be less, the theory being he would get more retirement if he had these extra points, but it's not just figuring out the back pay amount, it's also then offsetting [00:07:35] Speaker 02: whatever he already got in retirement. [00:07:38] Speaker 04: That's correct. [00:07:39] Speaker 04: So if there was an increase, it's getting more complicated, this calculation. [00:07:42] Speaker 04: Yes, your honor. [00:07:43] Speaker 04: So if there's an increase in points or if he also requested a consideration for resurrected promotion to the next grade, if either of those things were granted the additional points or additional rank change, then obviously that would impact the retired pay as well. [00:07:58] Speaker 04: That's correct. [00:07:59] Speaker 04: Yes, your honor. [00:07:59] Speaker 02: And that would be part of your back pay claim? [00:08:02] Speaker 02: Well, I think that the points are not sort of an equitable calculation, but then he's actually receiving retirement pay. [00:08:10] Speaker 04: Yeah, I think that that would be different. [00:08:13] Speaker 04: I think that the difference in retired pay would be different than back pay. [00:08:19] Speaker 04: Back pay, I think, refers to pay for work that should have been performed in orders or time that should have been worked previously. [00:08:27] Speaker 04: Whereas the retired pay calculation is a little different because you wouldn't be necessarily awarding him additional retired pay. [00:08:34] Speaker 04: You'd be awarding him a rank [00:08:35] Speaker 04: increase or he'd be awarding additional points which would have a collateral effect of increasing his retirement. [00:08:40] Speaker 02: I understand that. [00:08:41] Speaker 02: I think I'm not being clear about my questions. [00:08:43] Speaker 02: And maybe it's, did he receive retirement pay, start getting it in part because he wasn't allowed, he wasn't given promotions and these types of things. [00:08:55] Speaker 02: Like would he have stayed active duty longer and not started retirement pay? [00:09:03] Speaker 02: in 2019 or whenever he did, if in fact, I mean, there's all these sort of counterfactuals we have to play through here. [00:09:10] Speaker 02: So if he had, then you do have to kind of subtract out whatever retirement pay he got from whatever check the government would have to cut. [00:09:19] Speaker 04: So we're talking about a non-regular retirement, which is a reserve retirement, which is a little bit different because many, many members, as would be the case with Mr. Kerscher, would stop serving as a reservist, but they don't collect retired pay until they reach age 60. [00:09:34] Speaker 04: And so I believe that the retired pay eligibility date for Mr. Cursor was in 2019. [00:09:38] Speaker 04: I will double check that, but I believe that's correct. [00:09:42] Speaker 04: But I don't know that he would have served until 2019 or not under the circumstances. [00:09:49] Speaker 04: But I'm not sure if I'm answering your honor's question with that. [00:09:51] Speaker 04: I don't think that there's a situation here where he was. [00:09:59] Speaker 02: The claims for retirement pay at 60, you don't have to retire at 60, even the reserves. [00:10:04] Speaker 04: Uh, and well, you're eligible for retired. [00:10:08] Speaker 04: Oh, yes. [00:10:08] Speaker 04: In the reserve, there is a, there is mechanisms that enable certain people under certain circumstances to remain past age 60. [00:10:15] Speaker 04: It's not common. [00:10:16] Speaker 02: Okay. [00:10:17] Speaker 02: And you're not claiming that he would have been eligible for that? [00:10:19] Speaker 02: I'm not. [00:10:19] Speaker 02: No, your honor. [00:10:20] Speaker 02: 2019, at a bare minimum, retirement starts running. [00:10:24] Speaker 02: Yes, your honor. [00:10:25] Speaker 02: Is any backpack claim then stop at 2019? [00:10:27] Speaker 02: This would help with at least one of my math questions. [00:10:31] Speaker 04: Yes, your honor. [00:10:31] Speaker 04: The bet. [00:10:32] Speaker 04: Well, [00:10:33] Speaker 04: Yes, your honor. [00:10:34] Speaker 04: The back pay claim would have been related to points. [00:10:38] Speaker 04: I wouldn't even say up to 2019. [00:10:41] Speaker 04: I think it would have been points between 2008 and 2012, maybe 2014. [00:10:46] Speaker 04: I'm sorry, your honor. [00:10:50] Speaker 04: I don't have like a hard left and right limit on the calendar of when that would have started and stopped. [00:10:57] Speaker 02: That's my next question is, so he starts getting retirement. [00:11:02] Speaker 02: We're going to 2019. [00:11:06] Speaker 02: I'm going to get your arguments about points and things like that, that he would have gotten. [00:11:10] Speaker 02: So it would have been a higher retirement pay. [00:11:13] Speaker 02: And let's say the district court were to find that, you know, wins and and. [00:11:22] Speaker 02: As a result, one of his injuries here is down the back pay, but he should have been getting. [00:11:27] Speaker 02: 500 more a month for retirement pay is a claim for that 500 more a month for however many months. [00:11:39] Speaker 02: Is that something that has to go to the claims court too? [00:11:45] Speaker 02: No, your honor. [00:11:46] Speaker 02: The action from not enough of the points, but once it was that's all determined. [00:11:49] Speaker 02: Well, I didn't get the pay. [00:11:51] Speaker 02: I should have gotten retirement, not salary. [00:11:54] Speaker 02: That doesn't go to claims part 2. [00:11:56] Speaker 04: I'd say we're obviously over time here. [00:11:59] Speaker 04: I'll obviously answer your question. [00:12:01] Speaker 04: No, Your Honor. [00:12:03] Speaker 04: Again, the retired pays a function of what his military records show. [00:12:08] Speaker 04: So once the military record correction is made, either the points added or his rank corrected, the retirement pays by default. [00:12:15] Speaker 04: It's not a matter that needs to be ordered by anyone, not by the Board of Corrections. [00:12:20] Speaker 02: But obviously at this point, indeed. [00:12:22] Speaker 02: seven years of catch up. [00:12:24] Speaker 04: Well, he needs he needs the he needs the records correction but he doesn't need the court or the border corrections to order the increased retired pay. [00:12:31] Speaker 04: So, the order if the border will take care of that itself. [00:12:35] Speaker 04: Uh yes, your honor. [00:12:35] Speaker 04: So, if the if the border corrections had granted relief for saying said, hey, we're going to give you these extra points and we're going to give you a rank upgrade uh promotion. [00:12:43] Speaker 04: then the Department of Army Finance and Accounting Service would have automatically recalculated his retired pay and paid him at the increased rate that he was owed, because it's not a discretionary matter at that point. [00:12:54] Speaker 02: No, I understand it's not discretionary. [00:12:56] Speaker 02: It's just if everything were to go Mr. Kershaw's way in this litigation, then he would have a deficit in retirement pay he's gotten between 2019 and 2026. [00:13:11] Speaker 04: That's correct. [00:13:12] Speaker 02: And you say the military would just on its own, correct that? [00:13:16] Speaker 04: That's correct. [00:13:16] Speaker 04: I do. [00:13:17] Speaker 04: I absolutely think that. [00:13:18] Speaker 04: Yes, Your Honor. [00:13:18] Speaker 02: You would need a court to order that. [00:13:20] Speaker 04: That's correct. [00:13:21] Speaker 02: OK. [00:13:21] Speaker 02: That helps me on that aspect of the issue. [00:13:26] Speaker 04: Yes, Your Honor. [00:13:27] Speaker 04: I know I'm over my time. [00:13:28] Speaker 04: If there's any additional questions about the briefings, I'm happy to answer them pending the court's question or permission to continue. [00:13:37] Speaker 02: I just had one more turn to J 5 1, 2, I'm. [00:13:44] Speaker 04: If I may have one moment, sure grab that. [00:14:01] Speaker 02: Yes, your honor, I'm here and this is a document still under seal. [00:14:06] Speaker 02: Yes, your honor. [00:14:07] Speaker 02: OK, so I guess I'm going to be kind of elliptical in how I discuss it. [00:14:12] Speaker 02: For your race judicata argument or your statutory NUSC argument about what binds subsequent board decisions, I'm not sure you've argued that this document bound the 2020 board. [00:14:33] Speaker 02: Have you? [00:14:34] Speaker 04: If I may just have a brief moment to refresh my memory on that document. [00:15:02] Speaker 02: This came after the 2012 board's decision, the document then issued. [00:15:08] Speaker 02: Yes, Your Honor. [00:15:08] Speaker 02: And you've argued about, as I've understood your argument, it's been that the 2012 board decision is what? [00:15:15] Speaker 02: There's race due to condo or 10 USC 1552 binding on the 2020 board, correct? [00:15:24] Speaker 02: That's correct, Your Honor. [00:15:25] Speaker 02: You haven't argued this document. [00:15:27] Speaker 04: That's correct, Your Honor. [00:15:28] Speaker 04: OK. [00:15:31] Speaker 04: There's numerous claims that were made both in the 2012 that that generated the 2012 decision. [00:15:37] Speaker 04: I understand that and ended in the 2020 decision. [00:15:39] Speaker 04: Your honor. [00:15:40] Speaker 04: And so that's this document was not argued as part of that. [00:15:44] Speaker 02: Okay. [00:15:44] Speaker 02: Any questions. [00:15:46] Speaker 02: All right. [00:15:46] Speaker 02: Thank you very much. [00:15:47] Speaker 02: Thank you very much. [00:15:48] Speaker 02: A couple of minutes for rebuttal. [00:15:49] Speaker 02: Thank you. [00:15:50] Speaker 02: Your honor. [00:16:09] Speaker 05: Good morning and may I please the Court, Assistant United States Attorney Johnny Walker on behalf of the Secretary of the Army. [00:16:14] Speaker 05: I'll address the jurisdictional question that Your Honor was talking to my friend about. [00:16:20] Speaker 05: We think that the complaint here, or at least the back pay claim, [00:16:24] Speaker 05: is an explicit request for money. [00:16:26] Speaker 05: This court deals with a lot of cases that are marginal where we're asking if the complaint in essence seeks money and we ask things like whether or not there's substantial benefit apart from the money. [00:16:37] Speaker 05: Here you have an explicit request for money. [00:16:39] Speaker 05: The relief provision of the complaint asks the court to order the army to pay [00:16:44] Speaker 05: back pay to Mr. Cursor. [00:16:46] Speaker 05: And he doubles down on that in his summary judgment briefing and says that the case has been pending so long that the court should do away with remanding it back to the board and just order the payment of money. [00:16:56] Speaker 03: I agree with that. [00:16:58] Speaker 03: But if the request for money can fairly be read to exceed $10,000, right, we're out of little Tucker. [00:17:12] Speaker 03: And we just have a normal situation where the district court couldn't hear the back pay claim, but it could hear all of the APA claims seeking non-monetary relief and district court. [00:17:29] Speaker 03: has jurisdiction over those claims and we have jurisdiction to review those claims. [00:17:35] Speaker 05: I think that's right and that's the point we make in our brief. [00:17:37] Speaker 05: The only issue that that back pay claim stemmed with a request that the plaintiff had made in the district court to recalculate some of their retirement points as a result of Mr. Kersar being reinstated to the reserves by a prior board. [00:17:52] Speaker 05: The [00:17:52] Speaker 05: The only claim that the only issue that they are raising on appeal is Mr. Kershards claim that he's entitled to the special forces tab. [00:18:00] Speaker 05: And there is no, I don't know if there would be any monetary benefit to receiving this. [00:18:04] Speaker 03: That's just a straight out APA. [00:18:06] Speaker 05: That he has not made any claim for back pay connected to the restoration of the special forces tab. [00:18:11] Speaker 05: So we think that that is the only claim on issue on appeal here. [00:18:14] Speaker 03: So the only, sorry, the only jurisdictional hurdle really is if. [00:18:20] Speaker 03: The back pay claim in the district court was for less than $10,000. [00:18:31] Speaker 03: It seems awfully likely that it was more, but can you just [00:18:40] Speaker 03: It is through that it's the easiest thing in the world to specifically alleged and it's not specifically alleged. [00:18:46] Speaker 05: Right. [00:18:47] Speaker 05: Nobody has calculated that out. [00:18:48] Speaker 05: It certainly looks like it would be well over ten thousand dollars. [00:18:51] Speaker 05: And I think at that point, what it's incumbent when it almost certainly looks like. [00:18:56] Speaker 05: Given the amount of years and the pay at issue, it looks like it'd be around $30,000. [00:19:01] Speaker 05: I don't have a specific calculation to you, but it facially appears to be over $10,000. [00:19:05] Speaker 05: At that point, I think what the plaintiff needs to do is file something in the district court specifically, disclaiming any intent to recover over $10,000, which a plaintiff can do to bring them into the Little Tucker Act. [00:19:18] Speaker 05: But again, I don't think that poses a jurisdictional issue here in the appellate court because they're not raising any claim connected to the request for back pay. [00:19:26] Speaker 05: They've simply dropped that on appeal and are just after the special forces tab. [00:19:30] Speaker 01: And in this context, I gather claim splitting is routine. [00:19:34] Speaker 01: I mean, that would be the only thing that we can decide the APA claim. [00:19:39] Speaker 01: And if he has some back pay, second lie or claim that he hasn't brought here now, the district court could decide whether that's properly before it or needs to go to the court of federal claims. [00:19:54] Speaker 05: I don't know that anybody would agree to claim splitting in this case. [00:19:58] Speaker 01: Sequential. [00:20:00] Speaker 05: I think what probably would have happened if this came up in the district court, and it didn't come up until this court considered the motion for summary affirmance, I think what would have happened if this came up in the district court is Mr. Kersar would have had the option to either withdraw the request for back pay and just seek APA type review that would have resulted consequentially in the payment of pay had he prevailed or filed the disclaimer that I mentioned. [00:20:21] Speaker 05: What probably would have happened is some sort of mechanism to keep everything together in the district court here. [00:20:28] Speaker 01: But if, let's say, the district court ruled in his favor on his APA claim and he did want to pursue back pay, can he then, I mean, isn't this something that the Supreme Court in the state opinion and was it the NIH case, there's a sequencing you get to go over to once the APA decision is made, you get to go over to the court of federal claims if you have a claim for money against the government? [00:20:54] Speaker 05: I think, well, I mean, what normally would have happened is you have sort of a Bowen type situation where you get an APA decision that results in the agency paying you money. [00:21:03] Speaker 05: I suppose if he had that decision, the agency did not comply, did not follow through and pay the money. [00:21:08] Speaker 05: There may be a money banding claim. [00:21:09] Speaker 01: Let me ask you. [00:21:11] Speaker 01: whether, in your view, the record explains why the California National Guard upgraded plaintiff's discharge in 2004. [00:21:17] Speaker 02: Can I just follow up on one change of court? [00:21:20] Speaker 02: Oh, go ahead. [00:21:21] Speaker 02: Yeah. [00:21:21] Speaker 02: Sorry. [00:21:21] Speaker 02: I just wanted to follow up on that answer. [00:21:24] Speaker 02: So did I understand? [00:21:26] Speaker 02: So there was not a time limitation? [00:21:29] Speaker 02: Any time limit on taking a claim back page of the Court of Federal Claims? [00:21:36] Speaker 02: Imagine he gets all the equitable leave, who is the tab, or whatever else he gets from district court. [00:21:41] Speaker 02: Um, which has back pay consequences. [00:21:46] Speaker 02: The time for filing that claim, the court of claims wouldn't run from the 2020 board decision. [00:21:51] Speaker 02: It would run from the eight, the agency, the military's refusal, then a justice pay automatically. [00:21:57] Speaker 02: Or does he have, are we worried about that? [00:22:01] Speaker 02: So the six year mark here, are we worried about him running out of time to go to the court of federal claims? [00:22:06] Speaker 05: I'm not sure about that, Your Honor, but I don't think it matters because there's no way he's getting money at this point because he has not pursued on appeal his claim for back pay. [00:22:15] Speaker 05: So that was connected to an adjustment to the retirement points, which he has not pursued on appeal. [00:22:19] Speaker 03: Do you understand the district court to have entered judgment on the back pay claim? [00:22:29] Speaker 03: I think count nine of the complaint, what was for back pay? [00:22:33] Speaker 03: I don't think the district court had jurisdiction over that claim, but it seems to have dropped out of the summary judgment briefing. [00:22:48] Speaker 03: And the court's order on its face resolves all claims and says it's a final order. [00:22:56] Speaker 03: What do you think happened to it? [00:22:59] Speaker 05: It's tough to tell. [00:22:59] Speaker 05: There are a lot of targets in this case, and they have moved around as the briefing has unfolded. [00:23:05] Speaker 05: I'm not sure whether the district court has entered judgment on that claim. [00:23:08] Speaker 05: I think if the court determined that it did, and it determined that district court lacks jurisdiction over it, it could be a vacate just to dismiss. [00:23:17] Speaker 03: Precisely. [00:23:18] Speaker 03: I had thought maybe the back pay claim was abandoned on the summary judgment briefing. [00:23:26] Speaker 03: If you go through the briefs, it just doesn't really appear anywhere. [00:23:30] Speaker 05: It may well have been. [00:23:31] Speaker 05: It's certainly abandoned here on the appeal, where we're only looking at the Special Forces tab. [00:23:35] Speaker 03: It's abandoned on appeal, but it's the district court jurisdiction that matters for Whittle Tucker purposes. [00:23:42] Speaker 05: I understand there may be a need to adjust that judgment to a dismissal for lack of jurisdiction, if that is what the court determines. [00:23:50] Speaker 01: So if the district court did have jurisdiction over his back pay claim, we could still hear an appeal [00:24:02] Speaker 01: that excludes any appeal of the order on that claim, as long as our consideration is limited to the APA? [00:24:13] Speaker 05: Yes, because I think the district court could have just dismissed out that claim for lack of jurisdiction. [00:24:18] Speaker 01: We treat the district court as having abandoned or dismissed tacitly that claim, but [00:24:26] Speaker 01: I'm a little bit confused about whether you think, and this is why I asked about the sort of splitting. [00:24:32] Speaker 01: Let's say he only is raising back pay that he thinks is going to be a result. [00:24:37] Speaker 01: You talked about this, a follow on of a ruling in his favor that in terms only is an APA ruling about the way his service was described and whether he had the tab that he thinks he was entitled to. [00:24:54] Speaker 01: If riding on that is back pay in excess of $10,000, does that affect our jurisdiction? [00:25:02] Speaker 05: I'm sorry. [00:25:04] Speaker 05: In your hypothetical, it is only an APA claim, and the only relief requested is remand to the agency for further proceedings consistent with the district court's opinion. [00:25:15] Speaker 05: I think there may be issues where you get into the types of situations that this court has addressed in cases like Kidwell and Toodle and Smalls where there's a question as to whether or not the complaint in essence seeks money and there are questions about whether or not there's significant relief connected with or significant benefit connected with the relief apart from money. [00:25:36] Speaker 05: I think those are rare cases where there's a complaint that doesn't seek money, just seeks review of agency action, and those are considered to in essence seek money. [00:25:43] Speaker 05: So I think in your hypothetical, the district court probably would have jurisdiction over that. [00:25:48] Speaker 01: And we would have jurisdiction over the appeal. [00:25:55] Speaker 01: And by deciding we had jurisdiction, we would not be [00:26:01] Speaker 01: ruling implicitly on the availability of back pay relief. [00:26:05] Speaker 01: It just isn't in the case as presented. [00:26:09] Speaker 01: It could come into the case on a remand to the board. [00:26:11] Speaker 05: Right. [00:26:12] Speaker 05: If you had the back pay case issue before you, it would be arguments about the board didn't correctly recalculate my retirement points after I was restored to the reserve for the following reasons. [00:26:23] Speaker 05: But none of those arguments have been made. [00:26:25] Speaker 05: But if they were made without an explicit request of money, which there is in the complaint here, the court would have jurisdiction over those, yes. [00:26:33] Speaker 01: court would have jurisdiction. [00:26:35] Speaker 05: Yes, probably. [00:26:36] Speaker 05: Our court? [00:26:37] Speaker 05: Yes. [00:26:37] Speaker 01: Opposed to the federal circuit. [00:26:39] Speaker 05: If it explicitly seeks money or in essence seeks money. [00:26:42] Speaker 05: But what I'm saying is if the complaint just seeks APA review of the board decision and that APA review may result post remand in the payment of some money, then you have the bone versus Massachusetts situation where there is still APA jurisdiction. [00:26:55] Speaker 03: We wouldn't have jurisdiction because we can safely conclude that the monetary dispute exceeded $10,000 or we would have jurisdiction regardless. [00:27:09] Speaker 05: If all that he's seeking is remand to the agency and there's no explicit request for money, regardless of the amount that he would, down the line, be able to recover, we would have jurisdiction. [00:27:20] Speaker 03: If that was all he sought in district court. [00:27:23] Speaker 03: Right. [00:27:26] Speaker 02: OK. [00:27:28] Speaker 02: Sorry. [00:27:30] Speaker 02: OK. [00:27:32] Speaker 02: You had a line in your brief in response to, [00:27:37] Speaker 02: their invocation of 10 USC 1552, D, no, A4. [00:27:46] Speaker 02: That requires, except when prepared by Farrad, a correction under this section as final and conclusive on all offices of the United States. [00:27:59] Speaker 02: And you said the board doesn't make any corrections. [00:28:05] Speaker 02: Is JA 512 such a correction following the 2012 decision? [00:28:12] Speaker 05: Yes, but I believe that is the promotion following that decision. [00:28:15] Speaker 05: But I mean, the 2020 board did not undo that correction. [00:28:18] Speaker 05: That correction remains in place. [00:28:20] Speaker 05: All the 2020 board did was decide the separate issue that he did not meet the qualifications for the special forces. [00:28:26] Speaker 02: I find it awful. [00:28:27] Speaker 02: I mean, if that decision on 512 is [00:28:37] Speaker 02: final and conclusive on all offices of the United States and the board members, officers of the United States. [00:28:43] Speaker 02: If you're your officers, yes, it was a binding on them, but the secretary of army said on J five one two. [00:28:52] Speaker 02: Would there be inconsistency with finding? [00:29:00] Speaker 02: He was never. [00:29:02] Speaker 05: I want to be precise. [00:29:02] Speaker 05: Special forces to be precise with the statutory language, what it says is the corrections are binding and the 2020 board did not undo that correction. [00:29:11] Speaker 05: You will nowhere find anything that says that that sort of findings and conclusions are binding on future boards. [00:29:17] Speaker 05: And if they were, he definitely would not get the special forces tab because two separate boards previously concluded that he did not meet the qualifications for it. [00:29:27] Speaker 02: Did you argue race judicata on that basis in district court? [00:29:32] Speaker 05: We didn't respond to any argument on race judicata because no race judicata argument was raised. [00:29:36] Speaker 02: You couldn't raise your own affirmative race judicata argument. [00:29:38] Speaker 05: No, we didn't because she didn't. [00:29:40] Speaker 02: So you don't that arguments not before us. [00:29:42] Speaker 05: No, I'm assuming that their race judicata argument applies. [00:29:45] Speaker 05: They lose because the board would have been bound by the issues determined by the 19. [00:29:49] Speaker 02: I'm focusing just to be clear on tenancy 1552. [00:29:53] Speaker 02: If you want to call that a race judicata argument, whatever. [00:30:02] Speaker 02: He's promoted to a status that is a special forces status. [00:30:13] Speaker 02: Could he be promoted to that status and a special forces with status and pay level if he was not qualified? [00:30:22] Speaker 02: Could that have happened? [00:30:23] Speaker 05: No, he should not have been. [00:30:25] Speaker 02: No, I shouldn't. [00:30:26] Speaker 02: I'm saying there's a document here. [00:30:29] Speaker 02: promoted to that status by the Secretary of the Army, effective 2012. [00:30:35] Speaker 02: The Secretary couldn't have done that if he wasn't qualified, correct? [00:30:44] Speaker 05: He could if it was a mistake and if it was erroneous. [00:30:47] Speaker 02: A decision was made that he qualified for that. [00:30:52] Speaker 05: That's not correct. [00:30:53] Speaker 05: No decision was made that he qualified for the Special Forces role. [00:30:56] Speaker 02: Then how on earth was he [00:30:59] Speaker 02: given that role, that status, and that salary. [00:31:03] Speaker 05: With the 2012 board. [00:31:04] Speaker 02: In this order, not by the 2012 board, by the Secretary of the Army in this document that I'm referring to. [00:31:11] Speaker 05: That follows the 2012 board decision, right? [00:31:13] Speaker 02: Yeah, but they make recommendations. [00:31:16] Speaker 02: And so what the 20- I assume that was the point of your argument in your brief, that the board itself doesn't make the correction. [00:31:22] Speaker 02: The Secretary of the Army does. [00:31:26] Speaker 05: Most of the time. [00:31:27] Speaker 02: That's what happened here. [00:31:29] Speaker 05: So what happened? [00:31:30] Speaker 05: Yes. [00:31:31] Speaker 02: What happened here? [00:31:31] Speaker 02: And Secretary Varman agreed with the recommendation as reflected in this decision here, which said as of 2012, I'm not going to read more, but there's an awful lot of stuff that seems quite inconsistent with the 2020 board's reasoning. [00:31:50] Speaker 02: He's awarded the status effective 1 December 2004 and with this rank. [00:32:00] Speaker 02: Right? [00:32:01] Speaker 02: And so he has that. [00:32:03] Speaker 02: The Secretary of Army has determined that he's qualified for it and he hasn't. [00:32:07] Speaker 02: Correct? [00:32:07] Speaker 05: No, incorrect, Your Honor. [00:32:09] Speaker 02: At no point... How come the Secretary of Army's decision that he's qualified for it and gets it, not the decision that he's qualified for it and gets it? [00:32:19] Speaker 05: I'll explain if I may. [00:32:21] Speaker 05: So the secretary did not make a determination that he is special forces qualified. [00:32:25] Speaker 05: What the secretary was doing with that order was implementing the decision of the 2012 board. [00:32:31] Speaker 05: What the 2012 board decided was that Mr. Kersar should not have been separated by a separation board from the Army reserves because in the meantime, the California Army National Guard had [00:32:45] Speaker 05: upgraded his discharge from other than honorable to honorable, which was the basis for that separation. [00:32:50] Speaker 02: Does 1-8-D-40 mean he's getting a special force of salary? [00:32:54] Speaker 05: I'll continue. [00:32:55] Speaker 05: I'm sorry? [00:32:56] Speaker 02: Does 1-8-D-40 mean he's getting that salary? [00:32:58] Speaker 05: Yes, but if I can continue. [00:32:59] Speaker 02: Does that mean he has that status? [00:33:01] Speaker 05: Yes, but if I can continue the explanation of how he got that status, when the board undid that discharge, it also determined that he would have been promoted in the meantime had he not been discharged. [00:33:12] Speaker 05: So all the 2012 board was doing was undoing the discharge and giving him the promotion that he would have gotten in the meantime, which put him back. [00:33:19] Speaker 02: You told me in the brief it doesn't matter what the board did. [00:33:21] Speaker 02: It was just a recommendation. [00:33:22] Speaker 02: What matters is what the secretary of the army did. [00:33:25] Speaker 02: That was the correction. [00:33:26] Speaker 02: This was your argument in your brief. [00:33:27] Speaker 05: This is what the board recommended that the secretary do. [00:33:30] Speaker 02: But I'm telling you what the secretary of the army did. [00:33:32] Speaker 05: But that 2012 board, neither the 2012 board nor the secretary took any particular look at Mr. Kershaw's special forces qualifications. [00:33:40] Speaker 02: We're saying the secretary of the army was wrong. [00:33:42] Speaker 05: Yes. [00:33:43] Speaker 05: Are you an officer of the United States? [00:33:44] Speaker 05: It was incorrect. [00:33:45] Speaker 02: Are you an officer of the United States? [00:33:47] Speaker 02: Because that correction is final and conclusive on you, too, on the U.S. [00:33:51] Speaker 02: Attorney's Office. [00:33:52] Speaker 05: There is no correction that ever determined that Mr. Kersar was special forces qualified. [00:33:57] Speaker 02: All it did... Of course it does. [00:33:59] Speaker 02: He gets this rank and he gets this payment. [00:34:02] Speaker 02: But, Your Honor, if you look at the 2012... I didn't get that rank and payment because I'm not qualified. [00:34:06] Speaker 05: If you look at the 2012 board decision and the 2012 board application... Your brief told us [00:34:13] Speaker 02: There's no need to look at that. [00:34:13] Speaker 02: That's just a recommendation. [00:34:16] Speaker 02: Magistrate judges make recommendations all the time, but we look at what the district- No, that's not the position on our brief. [00:34:22] Speaker 05: We certainly invite you to look at the 2012 decision because it's very impactful here, as well as the application. [00:34:27] Speaker 02: No, but when they brought up this rule about binding decisions on corrections, which would have bound the 2020 board, you said, board didn't make any correction. [00:34:42] Speaker 05: But it wasn't a distinction. [00:34:44] Speaker 02: The Secretary of the Army did. [00:34:47] Speaker 05: If I may, the 2012 board did make a correction. [00:34:51] Speaker 05: Our position was that they say that the 2020 board departed from the 2012 board correction. [00:34:57] Speaker 05: And our point was the 2020 board did not make a correction. [00:35:00] Speaker 05: But I want to get back to the point that I was making. [00:35:01] Speaker 02: Because when we started this discussion, you agreed with me that, as I had read your brief, you're saying you're right. [00:35:06] Speaker 02: They don't actually make the corrections. [00:35:08] Speaker 02: They recommend corrections. [00:35:10] Speaker 05: in some instances, but that's really not material here. [00:35:13] Speaker 02: No, it is to me. [00:35:14] Speaker 05: Okay. [00:35:15] Speaker 02: Okay. [00:35:17] Speaker 02: But I want to get a recommendation and the secretary of the army acted on it. [00:35:21] Speaker 02: Correct? [00:35:22] Speaker 02: Correct. [00:35:23] Speaker 02: That's it. [00:35:23] Speaker 02: I thought we were agreed. [00:35:24] Speaker 02: That's what this J.A. [00:35:26] Speaker 02: 512 is. [00:35:27] Speaker 02: Correct. [00:35:27] Speaker 02: So the secretary of the army made an independent decision based on this recommendation. [00:35:33] Speaker 02: Yes. [00:35:34] Speaker 02: Correct. [00:35:34] Speaker 02: Which J.A. [00:35:34] Speaker 02: 512 reflects. [00:35:36] Speaker 05: I don't know that there was any deviation from what the board recommended or made it independent, but it is a separate- The whole board decision isn't here. [00:35:42] Speaker 02: There's a decision by the secretary of the army. [00:35:46] Speaker 05: Board decision is in the record. [00:35:47] Speaker 02: No, I mean, a J500- Oh, sure. [00:35:50] Speaker 02: The secretary of the army didn't say, I hereby adopt the board's decision. [00:35:54] Speaker 02: The secretary of the army said, this is the status for which he is lawfully qualified and to which he is entitled. [00:36:04] Speaker 02: And it is, as we've agreed, a special force of status. [00:36:10] Speaker 02: Is there anything wrong I've said so far? [00:36:11] Speaker 05: Yes, there was no determination, no specific independent termination by anyone, the secretary or the board, that Mr. Kursar belonged in a special forces role specifically, that he was special forces qualified in 2012. [00:36:23] Speaker 05: The 2000 board application simply asked that the discharge be undone. [00:36:29] Speaker 05: It did not present any evidence about Mr. Kursar's special forces qualifications. [00:36:34] Speaker 02: Does this say that he's promoted? [00:36:41] Speaker 05: He was placed back in a special forces role. [00:36:43] Speaker 02: He was promoted. [00:36:44] Speaker 05: Yes, Your Honor. [00:36:45] Speaker 02: And he was awarded a rank and salary that you only get if you qualify for special forces. [00:37:01] Speaker 05: But it was incorrect. [00:37:02] Speaker 02: Yes, yes. [00:37:03] Speaker 02: Okay, then that's binding on the 2020 board. [00:37:06] Speaker 02: Where did the 2020 board? [00:37:08] Speaker 05: That is not binding on the 2020 board. [00:37:11] Speaker 05: Well, the correction is binding. [00:37:13] Speaker 02: What am I misreading about 10 USC 1552A4? [00:37:19] Speaker 05: Let me make a subtle distinction. [00:37:21] Speaker 05: Mr. Kersar was placed in a special forces role and promoted within that role that he erroneously had before the 2012 board. [00:37:28] Speaker 05: He should not have been in a special forces role. [00:37:31] Speaker 05: But the 2020 board did not take him out of that role. [00:37:34] Speaker 05: It did not take his special force. [00:37:35] Speaker 05: It did not correct those records promoting them to that role. [00:37:39] Speaker 05: He had a separate request that he get the special forces tab. [00:37:44] Speaker 05: Now, the Special Forces tab is awarded to a service member who completes the Special Forces qualification course. [00:37:51] Speaker 05: And the board goes through all kinds of reasoning as to why Mr. Kersar did not complete the Special Forces qualification course. [00:37:57] Speaker 02: Are there other people in the Army whom the Secretary of Army has said are qualified for and shall be paid as consistent with that qualification, a Special Forces member? [00:38:15] Speaker 02: We do not get a tab. [00:38:17] Speaker 02: I just don't understand where the tab comes in. [00:38:20] Speaker 05: So the completion of the special forces qualification course qualifies you both to fill special forces roles and to receive the special forces tab. [00:38:29] Speaker 05: He did not complete the special forces qualification course. [00:38:33] Speaker 05: He was later mistakenly erroneously placed into special forces roles. [00:38:36] Speaker 05: But that does not compel the board to erroneously award him the special forces tab. [00:38:41] Speaker 02: I'm still going to ask my question. [00:38:43] Speaker 02: Sure. [00:38:45] Speaker 02: Who else is denominated by the Secretary of the Army, a member of the Special Forces, and paid as much, but does not get the tab? [00:38:57] Speaker 02: It's just a thing on the uniform. [00:39:00] Speaker 05: I mean, people in Mr. Kershaw's unique situation. [00:39:03] Speaker 02: Is he a situation of one? [00:39:06] Speaker 05: As far as I know. [00:39:07] Speaker 02: But his situation is that he doesn't tab come from? [00:39:11] Speaker 02: The Secretary of the Army deciding you are special forces qualified? [00:39:14] Speaker 05: No, this tab comes from an order by the commander of the John F. Kennedy Special Warfare Center in school. [00:39:20] Speaker 05: There has never been an order issued by that commander awarding, there was an order issued by that commander awarding Mr. Kersari the tab in 1994 that was rescinded in 1995. [00:39:30] Speaker 05: And that rescission of the tab has never been undone by the commander of that school. [00:39:38] Speaker 02: Is there any economic value salary-wise or retirement-wise to having the TAB as opposed to the status? [00:39:45] Speaker 05: Not that I know of. [00:39:46] Speaker 05: There may be some Special Forces veteran associations that Mr. Kershaw could join if he had the TAB. [00:39:53] Speaker 05: I'm not aware of any additional monetary benefit that he would get from the TAB alone. [00:40:01] Speaker 02: And if the Secretary of the Army says you are qualified and you get this salary, [00:40:10] Speaker 02: A commandant somewhere could say, but you still don't get the tab. [00:40:14] Speaker 02: An inferior officer could do that. [00:40:16] Speaker 05: Yes, because again, the underlying qualification for both filling a special forces role and the tab is completion of that course. [00:40:23] Speaker 05: His counsel admitted in 1999 who didn't complete the course. [00:40:26] Speaker 05: His discharge paperwork from 1983 shows he didn't complete the course. [00:40:29] Speaker 02: There's no other way to earn it other than going through this particular course? [00:40:33] Speaker 05: That's correct. [00:40:34] Speaker 05: You have to complete the course. [00:40:35] Speaker 02: And they all get it on graduation day. [00:40:37] Speaker 05: I'm sorry? [00:40:38] Speaker 02: And they all get it on graduation day. [00:40:40] Speaker 05: I'm not sure exactly when it's awarded, but course completion is a prerequisite for obtaining the tab. [00:40:45] Speaker 01: Is there anything else that's a prerequisite for it? [00:40:46] Speaker 01: Don't they have to immediately be deployed with special forces? [00:40:50] Speaker 05: Yes. [00:40:50] Speaker 05: So there's a service requirement that you have to fulfill after completing the course. [00:40:55] Speaker 05: Mr. Kersar obviously was separated from the active duty and did not fulfill that obligation. [00:41:01] Speaker 05: The board goes through all kinds of reasons that shows that he didn't get the [00:41:05] Speaker 05: His DD214 does not show a special forces designation when he was released following his attendance at the school. [00:41:12] Speaker 05: It does not list the course among the education that he completed. [00:41:16] Speaker 05: If he had completed the course, he would have been issued an academic evaluation report. [00:41:20] Speaker 05: That is not in his record. [00:41:22] Speaker 05: He testified before the board that he did not have one. [00:41:24] Speaker 05: So the board found all kinds of evidence that he did not complete the course and therefore did not deserve the tab. [00:41:30] Speaker 02: I want to note that the board- No economic consequences for purposes of back pay or retirement. [00:41:34] Speaker 05: Not that I'm aware of, Your Honor. [00:41:35] Speaker 05: I can't tell you definitively. [00:41:37] Speaker 05: I've asked, I've spoken about that with the Army. [00:41:39] Speaker 05: We're not aware of any. [00:41:40] Speaker 03: Sorry. [00:41:40] Speaker 03: The back pay claim, if it were teed up in a court with jurisdiction, wouldn't turn at all on this issue? [00:41:52] Speaker 05: I don't believe so, your honor, because that related to a separate correction, a separate process that he was pursuing post remand, where he was reinstated to his reserve role and sort of given retirement points and back pay in connection with that restoration. [00:42:07] Speaker 05: The special forces tab is a decoration separate from all of that. [00:42:14] Speaker 02: Any more questions? [00:42:16] Speaker 05: Thank you very much. [00:42:17] Speaker 02: Please affirm. [00:42:18] Speaker 02: This complicated area. [00:42:19] Speaker 05: Thank you. [00:42:20] Speaker 02: Jurisdictionally and in the military. [00:42:23] Speaker 02: Okay, Mr. we'll give you 2 minutes. [00:42:26] Speaker 04: Thank you very much. [00:42:33] Speaker 04: To start, I'd like to just respond that the. [00:42:38] Speaker 04: The 2020 decision does invalidate all prior board decisions. [00:42:45] Speaker 04: It says that in the decision, the board found that the fraud invalidates any of the applicants other requests and any private prior favorable board decisions. [00:42:56] Speaker 04: So the suggestion. [00:42:58] Speaker 04: And that it doesn't that that 2020 decision does not stand to actually change any records or or in any way effect changes to these records is is in our view not correct because it invalidates all the prior relief from 2012 in 2012. [00:43:14] Speaker 04: And this goes to your honors question of my counterpart here. [00:43:20] Speaker 04: The board granted full relief. [00:43:23] Speaker 04: That's what the board says. [00:43:23] Speaker 04: We grant full relief. [00:43:25] Speaker 04: Everything that he asked for was granted. [00:43:28] Speaker 04: It said we recommend that the secretary grant full relief. [00:43:31] Speaker 04: That's correct, yes. [00:43:32] Speaker 04: That's different than we granted. [00:43:33] Speaker 04: It is actually different. [00:43:35] Speaker 04: That's a valid correction and thank you for that because that gets to my point. [00:43:41] Speaker 02: You agreed earlier that you've nowhere argued that it's a J512 decision by the secretary of the army that [00:43:50] Speaker 02: 2020 decision violated. [00:43:55] Speaker 02: I'm sorry, I'm trying to violate a recommendation. [00:43:59] Speaker 04: Yes, your honor. [00:43:59] Speaker 04: However, the secretary of the army has to either act in 2012 when that decision was made or when the recommendation was made by the army board of correction, military records. [00:44:09] Speaker 04: the secretary of the army has to either approve it or not approve it. [00:44:13] Speaker 02: Yeah. [00:44:13] Speaker 02: Right. [00:44:14] Speaker 02: And they didn't disapprove it. [00:44:15] Speaker 02: What the statute makes binding on the 2020 board is the secretary's decision not. [00:44:21] Speaker 02: by our board's decision. [00:44:22] Speaker 04: Right. [00:44:23] Speaker 04: Yes, your honor. [00:44:24] Speaker 04: But the secretary, I mean, there's no evidence that he disapproved any of those bases of relief. [00:44:30] Speaker 04: And I think, in fact, there's evidence in the record that he did approve it because of JA 512. [00:44:36] Speaker 04: But one of the requested bases of relief was to reinstate the applicant in the Army Reserve and the individual ready reserve as a non-commissioned officer in the rank of E7 in the military occupational specialty of 18 Delta Special Forces. [00:44:51] Speaker 04: specifically says 18 Delta 18 D special forces and 18 D is the designator code for special forces in J 512. [00:45:00] Speaker 04: The document references 18 Delta as the M. O. S. That he's being promoted in, which is special forces. [00:45:08] Speaker 04: It just you can't you can't arrive at the conclusion rationally that the secretary of the army ordered that and then wasn't [00:45:16] Speaker 04: wasn't making any conclusion that a special force is qualified, you can't ration anything that the Board of Corrections wouldn't have recommended granting full relief and just ignored the fact that the request for a reinstatement in special forces. [00:45:32] Speaker 02: Did he ask for the tab from the 2012 board? [00:45:35] Speaker 04: No, Your Honor, he did not. [00:45:36] Speaker 02: So this case is about the tab. [00:45:39] Speaker 02: I'm sorry? [00:45:40] Speaker 02: There's nothing in 2012 about the tab. [00:45:45] Speaker 02: And your appeal is about the 2020 board violating contradicting the 2012 decision by not giving him the tab. [00:45:55] Speaker 04: Yes, your honor. [00:45:56] Speaker 04: So the tab is pro forma. [00:45:58] Speaker 04: Once you're qualified, if you're, if your special forces qualify, the tab is basically you get the tab is your best authority that it comes from. [00:46:06] Speaker 02: Being qualified as opposed to going through the training course, I think it's a 24 month deployment after that, or maybe other things too, but what's your best authority that seems to be the argument here? [00:46:18] Speaker 02: And I don't know what it's the same. [00:46:20] Speaker 02: So, it says it's the same. [00:46:24] Speaker 04: Well, I think that the standards for the, I don't have the, I don't have the regulatory standards for issuance of the TAB in front of me, Your Honor. [00:46:35] Speaker 04: I honestly don't have that. [00:46:36] Speaker 04: However, I don't think it's disputed either by the government that the special forces qualification and special forces. [00:46:42] Speaker 02: Well, they just very much told us that what you have to do to get the TAB is finish the course through the final day and have the 24 month deployment. [00:46:49] Speaker 02: There may be some other things. [00:46:51] Speaker 02: Yes, I know there's disputes about. [00:46:55] Speaker 02: Whether he was deemed to have finished the course, but is there anything that he did 24 month deployment. [00:47:02] Speaker 02: With the special forces. [00:47:04] Speaker 04: Uh, eventually he did deploy in special 24 months with the space. [00:47:08] Speaker 04: No, not, not, not within, not within the time that he left the course a few days early. [00:47:14] Speaker 02: Do you have any reason to think, do you know when the special forces tab is normally awarded? [00:47:20] Speaker 02: Is it at graduation after they finished the, uh, the course? [00:47:25] Speaker 02: Is it after the 24 month deployment? [00:47:27] Speaker 04: I do not have that. [00:47:28] Speaker 04: I don't have an answer for the court on that. [00:47:30] Speaker 04: I would say that the special courses qualification and the issuance of the tab, in our view, are two separate things, but occur under the same standards. [00:47:41] Speaker 04: There's no differing standards for the tab and the qualification notation. [00:47:46] Speaker 04: Any more questions? [00:47:49] Speaker 04: Same amount of time, obviously. [00:47:50] Speaker 02: Yeah. [00:47:51] Speaker 04: Yes. [00:47:53] Speaker 02: I didn't mean to cut you off in sentence, [00:47:55] Speaker 02: That was the end of that point. [00:47:56] Speaker 02: That was the end of that point. [00:47:57] Speaker 02: Depending any further questions from the court, your honor. [00:47:59] Speaker 02: Okay, thank you very much. [00:48:00] Speaker 02: The case is submitted.