[00:00:12] Speaker 04:
We will hear argument first in number 181406, Sharp against United States.

[00:00:28] Speaker 00:
I believe I have reserved three minutes of rebuttal time.

[00:00:33] Speaker 00:
May it please the court, Rachel Elsby on behalf of the appellant, John Sharp.

[00:00:37] Speaker 00:
There are two issues in this appeal.

[00:00:39] Speaker 00:
First, the Court of Federal Claims abused its discretion when it held that Commander Sharp was judicially stopped from arguing that his back pay and other compensation should be calculated based on his assignment to the Carl Vinson.

[00:00:52] Speaker 00:
Second, the court compounded its error when it then looked to calculate and decided in the alternative that it could calculate the back pay and deny career C pay based on other factors beyond the assignment.

[00:01:05] Speaker 00:
So if we turn first to the issue of judicial estoppel.

[00:01:08] Speaker 04:
Can I ask you, if we were to conclude that the denial of CPAY and the denial of the San Diego rate for the housing allowance were neither contrary to statute nor arbitrary and capricious, we do not have to reach the question of judicial estoppel?

[00:01:26] Speaker 04:
Is that right?

[00:01:27] Speaker 00:
The Court of Federal Claims decided the issues in the alternative.

[00:01:30] Speaker 00:
So I think you are correct that you can get there with either issue.

[00:01:32] Speaker 00:
Obviously, we think that

[00:01:34] Speaker 00:
the court was incorrect on both issues.

[00:01:35] Speaker 00:
But you can get there that way.

[00:01:37] Speaker 04:
And I guess just help me understand this.

[00:01:39] Speaker 04:
I guess I found when I was thinking about the judicial estoppel question that your brief invited, I think quite rightly, a inquiry into whether the issues were really the same as between the vessel exception to the court martial requirement and either the CPAY or the basic housing allowance.

[00:02:00] Speaker 04:
And then in order to figure out whether they were really the same, I found myself

[00:02:04] Speaker 04:
pretty much getting to the merits, aside from judicial estoppel.

[00:02:13] Speaker 04:
Why don't we begin with the two underlying direct merits questions?

[00:02:18] Speaker 00:
I can do that.

[00:02:18] Speaker 00:
I can turn to that issue.

[00:02:20] Speaker 00:
So going to the merits issue.

[00:02:23] Speaker 00:
The court acted unreasonably.

[00:02:24] Speaker 00:
The issue here is really the application of the constructive service doctrine.

[00:02:28] Speaker 00:
And this can be found from the language in Article 15, which is the Vessel Exception Statute, which says that when somebody is reattached, when the judicial punishment, or any form of punishment, nonjudicial or otherwise, is revoked, you're to return the rights, privileges, and property to that individual.

[00:02:46] Speaker 00:
And this court has discussed what that means in the Groves case.

[00:02:49] Speaker 00:
The Court of Federal Claims discussed it a little bit in the Hawley case.

[00:02:52] Speaker 00:
And what you're doing is putting the service member back into the position that they were in at the time of their separation.

[00:02:58] Speaker 00:
Here, Commander Sharp, at the time of his separation, was assigned to the USS Carl Vinson and being paid accordingly.

[00:03:06] Speaker 00:
He was also receiving career C pay.

[00:03:08] Speaker 00:
The secretary at that point had decided

[00:03:10] Speaker 00:
Even though the ship was being overhauled and is in dock, that it was paying the service members who were assigned to the ship career see pay.

[00:03:17] Speaker 00:
So if we go back to that point in time applying the constructive service doctrine, you're to award him or to give him for the entire duration of his service because we treat it as though it's uninterrupted.

[00:03:27] Speaker 04:
Why would we treat it as uninterrupted when the one thing that we know about his assignment to the USS Carl Vinson is that the assignment order itself said, we expect this to come to an end August 2008, I think it was.

[00:03:46] Speaker 00:
That's right.

[00:03:47] Speaker 00:
And so the simple answer is really because that's the rule we've chosen, that under the Constructive Service Doctrine, it is a legal fiction, but it's based on the information you have at that time.

[00:03:57] Speaker 00:
And if you look beyond that to the orders terminating at some point in time, which we can see.

[00:04:02] Speaker 00:
We don't dispute that at some point his duty station would have changed.

[00:04:05] Speaker 00:
But you don't know what it is.

[00:04:07] Speaker 04:
And so you don't want to.

[00:04:08] Speaker 04:
Don't we effectively know what it is unless there's something to the contrary that is the order said this assignment terminates before the relevant period here in 2008.

[00:04:18] Speaker 04:
And so at that point, in the absence of additional information, wouldn't we be indulging in

[00:04:26] Speaker 04:
speculation, at least speculation, and indeed something what appears to be contrary to the ordinary course to say that assignment would have continued.

[00:04:38] Speaker 00:
Well, what we don't have is an order that actually says the assignment ends.

[00:04:42] Speaker 00:
What we know is the typical assignment for a person in Commander Sharp's position is about 24 months.

[00:04:48] Speaker 00:
At the point he was separated, he still had that position.

[00:04:51] Speaker 00:
It had exceeded 24 months.

[00:04:53] Speaker 00:
It was all the way into, I think, about 39 months.

[00:04:56] Speaker 03:
I'm sorry.

[00:04:57] Speaker 03:
Could you explain one thing to me?

[00:04:59] Speaker 03:
One way of reading the record is you are right.

[00:05:02] Speaker 03:
We have no idea what would have happened to the appellant in the period of 2008, 2009, up to 2017, where he would have been assigned in all those years.

[00:05:16] Speaker 03:
But it seems like we know one thing.

[00:05:18] Speaker 03:
thing he would not have been assigned to, and that would have been the USS Carl Vinson, because as Judge Toronto pointed out, these assignments are typically 24 to 36 months.

[00:05:29] Speaker 03:
And I saw something in the record that indicated that someone else had already been assigned to this very position that he had been assigned to starting as early as the summer of 2008.

[00:05:41] Speaker 03:
Is that correct?

[00:05:43] Speaker 00:
Yeah, they were essentially grooming or training his replacement.

[00:05:46] Speaker 00:
That's in the record.

[00:05:48] Speaker 03:
So if that's right, that the replacement had already been identified and already began training as of summer of 2008, then what indicia is there that would suggest that Sharp would have gone back to the Carl Vinson in 2009 given that his replacement was already in place as of 2008?

[00:06:14] Speaker 00:
The argument isn't that he would have gone back to the Carl Vinson.

[00:06:17] Speaker 00:
It's that that's the only assignment he had at the point in time where he was separated.

[00:06:21] Speaker 00:
And so that's all that we have to look forward and fill in the gap of eight years when he was wrongfully separated from the Navy.

[00:06:28] Speaker 00:
The case out of the Federal Claims Court, the Hawley case, is particularly helpful in this instance because in that case you had a service member who was assigned to Germany.

[00:06:37] Speaker 00:
was receiving overseas housing allowances for being assigned to Germany.

[00:06:41] Speaker 00:
And everybody knew that his assignment to Germany was going to end during the period of his separation.

[00:06:46] Speaker 00:
But the court said, we can't deduct that from the back pay that we're allowing, because the only assignments we have in place, the only fiction we know, is the one that was actually there at the time of the separation.

[00:06:57] Speaker 00:
And so to fill in the gap, I mean, in Commander Sharpe's situation, it would be likely, more than likely, that he would have been assigned, had he not been separated, to Washington DC.

[00:07:07] Speaker 00:
And all this pay would have been commensurate with somebody whose assigned duty station is Washington DC.

[00:07:13] Speaker 00:
But the government and the Navy have not argued that he's entitled to that money.

[00:07:17] Speaker 00:
What they're trying to say is that he's placed in kind of this

[00:07:21] Speaker 00:
almost temporary or fictional assignment place, which is really not what the constructive service doctrine instructs us to do.

[00:07:27] Speaker 00:
It's to restore the rights, privileges, and property that somebody was receiving at the time of their separation.

[00:07:34] Speaker 00:
And the only facts we have to go by there as to what that is really is his assignment to the Carl Vinson.

[00:07:40] Speaker 00:
That was his permanent duty station at the time he was separated.

[00:07:42] Speaker 04:
And that's even though the assignment itself seems to say

[00:07:48] Speaker 04:
PRD is a probable location date or something, June 20, 2008?

[00:07:53] Speaker 00:
That's right.

[00:07:58] Speaker 00:
Yeah, it's expected.

[00:07:59] Speaker 00:
And I think everyone acknowledges that it was expected that he would be rotated.

[00:08:04] Speaker 00:
But for the unlawful separation, he would have been rotated.

[00:08:07] Speaker 04:
But it didn't happen then.

[00:08:08] Speaker 04:
Was there anything comparable to that in the Holly case that is an actual

[00:08:16] Speaker 04:
finding or document attached to the assignment to Germany that said this is expected to come to an end by virtue of as part of the initial assignment?

[00:08:31] Speaker 00:
That was in the Hawley case.

[00:08:33] Speaker 00:
I'm just finding it for you.

[00:08:54] Speaker 00:
I apologize, just trying to find it.

[00:09:04] Speaker 04:
Well, I can look at that.

[00:09:07] Speaker 04:
Do you think that we are not entitled, or more possibly, that we are required to assume the correctness of the C pay that he was receiving before he was discharged?

[00:09:21] Speaker 00:
I think you are.

[00:09:22] Speaker 00:
And the Groves case from this court talks a little bit about that.

[00:09:25] Speaker 00:
That was a doctor who was receiving variable special pay

[00:09:28] Speaker 00:
at the time of their separation.

[00:09:31] Speaker 00:
And the Court of Federal Claims had found that upon being reattached, that that doctor was not entitled to continue receiving the variable special pay because they weren't still practicing medicine during the time of the separation.

[00:09:44] Speaker 00:
And the court said, no, you were receiving that at the time of the separation, or Dr. Groves was receiving that at the time of the separation.

[00:09:51] Speaker 00:
And they'll continue to get it because the only reason it stopped

[00:09:55] Speaker 00:
was because of the separation.

[00:09:57] Speaker 00:
There was no other reason for it to have stopped.

[00:10:00] Speaker 00:
Commander Sharp is very much the same.

[00:10:02] Speaker 00:
He was receiving the sea pay at the time of his separation.

[00:10:05] Speaker 00:
Somebody had made the decision that these individuals assigned to the Carl Vinson are going to receive this compensation, even though it's in dock.

[00:10:12] Speaker 00:
And the only reason, just like in Groves, it stopped was because he was separated.

[00:10:16] Speaker 03:
But just so I understand, there isn't actually a plausible reason why Commander Sharp should have been receiving sea pay when Carl Vinson was not out to sea.

[00:10:27] Speaker 03:
It was on land.

[00:10:30] Speaker 03:
Is that fair to say?

[00:10:31] Speaker 03:
I just want to make sure I understand what's going on.

[00:10:33] Speaker 00:
I don't know that it's fair to say.

[00:10:34] Speaker 00:
I don't want to kind of misstate something that's a little bit out of my expertise.

[00:10:38] Speaker 00:
But somebody, the secretary of the Navy, had made a decision, a decision that's entitled to deference, actually, that he was entitled to this compensation.

[00:10:45] Speaker 00:
Now, if the secretary had decided to look at that before he was separated and said, you know what, we shouldn't be giving these people seat pay, the boat's here, they could have terminated it.

[00:10:54] Speaker 00:
And that would have been virtually unreviewable by a court.

[00:10:57] Speaker 02:
You're saying, Ms.

[00:10:58] Speaker 02:
Elsby, even assuming

[00:10:59] Speaker 02:
for purposes of argument that it was error to give Mr. Sharp, or Commander Sharp, CPE, the fact that he was receiving it at the time of his separation.

[00:11:12] Speaker 02:
Since we now go back and put him in the place he was in when he was separated, he's entitled to the CPE.

[00:11:18] Speaker 00:
That's right.

[00:11:18] Speaker 02:
Even if one could make an argument that it was error.

[00:11:21] Speaker 00:
I think that's right.

[00:11:22] Speaker 00:
And I think we have to assume it was an error, because we're not presented with anything that suggests it was, other than arguments that are made after Dr. Sharp has been reattached.

[00:11:32] Speaker 00:
And they didn't go back and say,

[00:11:34] Speaker 00:
for the time where you were active and assigned to the Carl Vinson, we're going to revoke that CPE.

[00:11:40] Speaker 00:
They actually just terminated it at the point of his separation.

[00:11:42] Speaker 00:
So it really is the case that his CPE was terminated because of the separation, not because of any other factor.

[00:11:48] Speaker 02:
I saw a document.

[00:11:49] Speaker 02:
I guess it's this document referred to as the Bourne Memorandum that says that Mr. Sharpe's assignment to the Vinson would have ended

[00:11:59] Speaker 02:
no matter what, no later than December 31 of 2009.

[00:12:07] Speaker 02:
And so would that mean that his CPE would have ended at that point, because he was going to be?

[00:12:17] Speaker 00:
I think that's part of the problem.

[00:12:18] Speaker 00:
That's why we have the rule that we have.

[00:12:20] Speaker 00:
We don't know where he would have been assigned next.

[00:12:22] Speaker 00:
I think we all probably suspect it would have been Washington, DC.

[00:12:25] Speaker 00:
But we don't know that.

[00:12:26] Speaker 00:
And so that's why we've created this rule under the constructive service doctrine that you say, you take the service member as you found them when they were separated, and you give them the pay.

[00:12:37] Speaker 00:
And I know the government has argued that this is potentially some sort of a windfall.

[00:12:42] Speaker 00:
It's not a windfall to say, pay him as he was at the time he was separated.

[00:12:46] Speaker 00:
He lost eight years of his career.

[00:12:48] Speaker 00:
So there could have been all sorts of other promotions, transfers, and sorts of things like that in this case

[00:12:53] Speaker 00:
we'll never know, and Commander Sharp will never receive the benefit of.

[00:12:57] Speaker 00:
All he's asking for is the compensation he received at the time of his separation that was terminated because of the separation.

[00:13:04] Speaker 04:
Can you take a minute and a half or something just to make your central point about judicial estoppel, which I diverted you from earlier?

[00:13:12] Speaker 00:
Sure.

[00:13:12] Speaker 00:
I see I'm into my time, but I'm happy to do it.

[00:13:16] Speaker 00:
The real issue here is that the arguments were not inconsistent.

[00:13:21] Speaker 00:
From the beginning to the end,

[00:13:22] Speaker 00:
Commander Sharp has always accepted the position.

[00:13:24] Speaker 00:
He was assigned to the Carl Vinson.

[00:13:27] Speaker 00:
He did not physically work on the Carl Vinson on a day-to-day basis.

[00:13:31] Speaker 00:
The boat was in dry dock.

[00:13:32] Speaker 00:
He was in an office building.

[00:13:34] Speaker 00:
The only thing that changed is how you weigh those facts under two different legal analyses.

[00:13:40] Speaker 00:
So for the purposes of the vessel exception, whether you weigh the assignment, whether that gets full credit when you're trying to determine whether he's attached to or embarked in the ship,

[00:13:50] Speaker 00:
And then in the other case, whether you weigh the factors the same or not, and we have argued not, when you're looking at what it means to restore all rights and privileges.

[00:14:00] Speaker 00:
So these are different legal questions.

[00:14:01] Speaker 00:
And the only argument was whether the evidence, whether the facts weigh differently.

[00:14:06] Speaker 00:
That's not making an inconsistent argument.

[00:14:08] Speaker 00:
It would be almost like saying, if you're looking at written description and obviousness, they have some common underlying facts.

[00:14:16] Speaker 00:
But different facts are going to be dispositive for different

[00:14:20] Speaker 00:
for written description than the facts that are going to be dispositive in obviousness.

[00:14:24] Speaker 00:
It's two different legal questions.

[00:14:26] Speaker 00:
And so it should be perfectly acceptable to say that the facts weigh differently.

[00:14:31] Speaker 04:
OK.

[00:14:31] Speaker 04:
Thank you.

[00:14:32] Speaker 04:
And we'll restore the full three minutes for the panel.

[00:14:54] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:14:57] Speaker 01:
Commander Sharp wants to, I think, go back to that point in 2009, but only with respect to certain things that are favorable to him.

[00:15:06] Speaker 01:
For instance, if we do go back to 2009, he wasn't yet promoted to the rank of commander, yet he got that retroactive promotion and the pay commensurate with that retroactive promotion paid by the Navy.

[00:15:20] Speaker 04:
Is that promotion, I'm not going to use a precise term here,

[00:15:24] Speaker 04:
one that he would have gotten in due course or was there some substantial element of either competition or discretion or the like?

[00:15:33] Speaker 04:
Because I know in the personnel world we separate the kinds of, in the restoration after a reversal of a removal, those things that involve uncertainty from those that are a matter of course.

[00:15:49] Speaker 01:
I think there would have been some discretion in the promotion, but had he not received the nonjudicial punishment that was sort of a mark on his record in leading to the separation proceedings, he would have been up for that promotion.

[00:16:03] Speaker 01:
I think it's sort of an up route type system.

[00:16:06] Speaker 03:
And he- There's an indication in the record that he was going to get promoted to that particular status, correct?

[00:16:13] Speaker 01:
Certainly.

[00:16:14] Speaker 01:
Just like there's an indication in the record that he would have finished his rotation.

[00:16:18] Speaker 01:
in June of 2008, because these are 24 to 36 months.

[00:16:22] Speaker 03:
And nobody's disputing that that was going to happen.

[00:16:25] Speaker 03:
So that's not part of this appeal.

[00:16:27] Speaker 01:
The promotion?

[00:16:28] Speaker 01:
Right.

[00:16:29] Speaker 01:
That's true, Your Honor.

[00:16:30] Speaker 01:
I'm simply using that to demonstrate that taking Commander Sharp and freezing him in time in 2009 is not what happened.

[00:16:40] Speaker 01:
And Commander Sharp certainly argued that that shouldn't happen with respect to the promotion.

[00:16:44] Speaker 01:
And that, to some extent, dovetails with this judicial estoppel.

[00:16:47] Speaker 01:
argument that's the first issue is that Commander Sharp argued one thing with respect to the separation when it was in his favor and then turned around and argued a different point to try to get

[00:17:03] Speaker 01:
to try to get BAH and career C-pay after his non-judicial punishment had been voided.

[00:17:09] Speaker 03:
He argued consistently all the way through, both during the punishment phase as well as the back-pay phase, that he was assigned to the USS Carl Vinson.

[00:17:21] Speaker 01:
He said that he was assigned to the Carl Vinson, but he argued that that assignment was a technicality and that the Board of Corrections should ignore that.

[00:17:29] Speaker 01:
technical on paper assignment, as he called it, and should focus on the practical factors, where he worked, where he lived, where he stood watch, where he even served his punishment, where his hearing was.

[00:17:41] Speaker 01:
And the board accepted that position.

[00:17:43] Speaker 01:
The board said, OK, we're not going to look just at your technical on paper assignment.

[00:17:47] Speaker 01:
We're going to look to the broad circumstances.

[00:17:49] Speaker 01:
And it ruled in his favor.

[00:17:51] Speaker 01:
And then he turns around and says, completely disregard

[00:17:55] Speaker 01:
all those other circumstances and look solely to the nature of the technical assignment.

[00:17:59] Speaker 04:
Let me state how I think I understand Ms.

[00:18:02] Speaker 04:
Elsby's argument, or at least one version of it.

[00:18:05] Speaker 04:
The vessel exception is all about an important practical consideration about whether you're going to do a court martial when somebody is in the middle of the South Pacific.

[00:18:16] Speaker 04:
And so it plays that the purpose that drives application of that is one that

[00:18:26] Speaker 04:
properly led the board to conclude that that exception was not applicable in his circumstance when he was sitting on land.

[00:18:35] Speaker 04:
The purpose and different legal traditions behind either the CPAY or the housing allowance are quite

[00:18:43] Speaker 04:
different, I think.

[00:18:45] Speaker 04:
This is, I think, the argument.

[00:18:48] Speaker 04:
And that as to CPAY, among other things, the secretary had been granting it to him when he was in this condition.

[00:18:57] Speaker 04:
And there are important stability reasons to have a default rule that says that continues unless something changes.

[00:19:03] Speaker 04:
Nothing has changed.

[00:19:04] Speaker 04:
Something similar on the housing allowance.

[00:19:06] Speaker 04:
So with the different legal frameworks,

[00:19:11] Speaker 04:
maybe the role of the reality of on water versus not on water would change.

[00:19:18] Speaker 01:
Two points on that, Your Honor.

[00:19:19] Speaker 01:
First, judicial estoppel, unlike issue preclusion, looks at the party's positions.

[00:19:23] Speaker 01:
It's sort of a cousin of the issue preclusion, but it looks at what position the party took to prevent it from essentially speaking out of both sides of its mouth

[00:19:33] Speaker 01:
getting something on the one hand and then disavowing that position when it's convenient.

[00:19:38] Speaker 01:
And so it looks to the issues on which the party took the position.

[00:19:42] Speaker 04:
If one states the vessel exception position as, I was never on the water and for purposes of the vessel exception, that is decisive.

[00:19:52] Speaker 04:
How is that inconsistent from saying, I was never on the water but for purposes of the sea duty provision and housing allowance?

[00:20:02] Speaker 04:
That actually doesn't matter.

[00:20:03] Speaker 01:
I think that's slicing it a little too finely, Your Honor.

[00:20:06] Speaker 01:
And I think if you look at the cases we cite in the disability discrimination context, that same argument could be made that, oh, somebody is disabled for purposes of receiving disability compensation, but then they're considered to be able to work for purposes of filing a discrimination suit.

[00:20:21] Speaker 01:
But the courts have uniformly applied judicial estoppel in that circumstance and said, you took the position that you're unable to work when you were getting disability, and now you're trying to get

[00:20:31] Speaker 01:
discrimination claim saying that you were able to work but were discriminated.

[00:20:35] Speaker 01:
And that is something that the courts routinely preclude litigants from switching midstream.

[00:20:41] Speaker 01:
Same thing here.

[00:20:41] Speaker 01:
I mean, if you make the issue so narrow that for the purposes of the vessel exception, Commander Sharp argued that his technical assignment should not be considered but then for purposes of pay.

[00:20:53] Speaker 01:
But I think if you look more broadly at his position that he took before the board and that he's taking now,

[00:20:59] Speaker 01:
the inconsistency becomes apparent.

[00:21:01] Speaker 01:
He was arguing that he should be treated as though he was on land, even though, this is another point I'd like to point out, on the issue of CSP, he was being paid CSP, that is true.

[00:21:12] Speaker 01:
But at the time, the Navy was treating him as though he was on a ship.

[00:21:16] Speaker 01:
And that's why it took away his court martial and gave him the nonjudicial punishment.

[00:21:21] Speaker 01:
He turns around and he says, you shouldn't have done that.

[00:21:23] Speaker 01:
You shouldn't treat me as though I'm on a ship.

[00:21:25] Speaker 01:
I was never on a ship.

[00:21:26] Speaker 01:
I never ate there.

[00:21:27] Speaker 01:
I never slept there.

[00:21:29] Speaker 01:
served watch there, the Navy acquiesces and says, sure, we'll treat you as though you're not on the ship, and voids his non-judicial punishment.

[00:21:37] Speaker 01:
Then he turns around and says, well, now you have to pay me as though I was on the ship.

[00:21:41] Speaker 04:
Why was he being paid career C pay before he was terminated?

[00:21:45] Speaker 01:
So he was being paid career C pay.

[00:21:50] Speaker 01:
Let me just make sure I understand your question.

[00:21:51] Speaker 01:
There was a period of time

[00:21:53] Speaker 01:
So up to 2007, he was being paid career C pay as a public affairs officer assigned to Carl Vinson.

[00:22:00] Speaker 04:
Even though he was in an office building.

[00:22:03] Speaker 01:
Because the Navy was viewing him as being assigned to a ship.

[00:22:08] Speaker 01:
I think the Navy was paying career C pay to folks.

[00:22:13] Speaker 01:
even though the ship was in dry dock, because there's still some... Is that standard policy?

[00:22:19] Speaker 03:
Every time you're assigned to a ship you get sea pay, regardless of whether this ship is out to sea or dry dock?

[00:22:25] Speaker 01:
No, there are distinctions between certain ships and...

[00:22:30] Speaker 01:
I think it's the default rule, but for a seagoing ship, even if it's in dry dock, because sailors oftentimes still stay on the ship.

[00:22:36] Speaker 01:
You still are sleeping in these tight quarters.

[00:22:39] Speaker 01:
You're eating on the ship.

[00:22:40] Speaker 01:
He was.

[00:22:41] Speaker 01:
He was not.

[00:22:43] Speaker 03:
So what did you mean?

[00:22:44] Speaker 03:
You were about to say the default rule is, and then you interrupted yourself.

[00:22:48] Speaker 01:
I think the default rule for this type of ship, well, I shouldn't say default rule.

[00:22:53] Speaker 01:
I think in this case, the Navy, even though the ship was in dry dock, was paying career sea pay.

[00:23:01] Speaker 01:
Commander Sharp was not sleeping on the ship or eating on the ship or doing any work on the ship, but he was, by virtue of his assignment, getting career CPE.

[00:23:12] Speaker 01:
Through 2007, when he received the non-judicial punishment, and then he was in these administrative proceedings that lasted about two years.

[00:23:19] Speaker 01:
Even though his rotation was set to end in 2008, he was just kind of stuck in administrative limbo and continued receiving CPE.

[00:23:26] Speaker 01:
So I think if his rotation had ended as it was supposed to in 2008,

[00:23:30] Speaker 01:
and he was assigned to, say, Washington DC or somewhere else, career CFA would have terminated.

[00:23:34] Speaker 03:
What if theoretically, hypothetically, the USS Carl Vinson had remained in Norfolk, never went to San Diego, and was still in Norfolk today, and still dry docked today, and wouldn't

[00:23:52] Speaker 03:
And let's also assume for purposes of my hypothetical that Commander Sharp has been reassigned to the Carl Vinson instead of being reassigned to DC.

[00:24:04] Speaker 03:
Sorry, this hypothetical is getting long.

[00:24:07] Speaker 03:
Just for the C pay, wouldn't you agree that Commander Sharp ought to be getting all of the C pay in light of Groves?

[00:24:19] Speaker 03:
Well, because then we would be giving him what he had been getting in an uninterrupted way.

[00:24:28] Speaker 03:
And there's no reason to believe he wouldn't have continued to get CPE, just as he had been getting CPE for the years before he was removed.

[00:24:42] Speaker 01:
I think even in that,

[00:24:44] Speaker 01:
Well, I guess, is the hypothetical that despite the fact that these rotations are 24 to 36 months, he was?

[00:24:54] Speaker 03:
The Navy has reassigned him to Carl Vinson.

[00:24:58] Speaker 03:
So that's indicia that Ben was that he was always going to be at the Carl Vinson.

[00:25:05] Speaker 01:
And the Carl Vinson remained in dry dock?

[00:25:08] Speaker 01:
Yes.

[00:25:16] Speaker 01:
And so the question is, should he continue receiving CPE?

[00:25:19] Speaker 01:
Right.

[00:25:26] Speaker 01:
I think that's a different question, obviously, than here.

[00:25:31] Speaker 01:
I think in the absence of anything else, if you look at his sort of earnings statement

[00:25:39] Speaker 01:
Prior to separation, you see the line for CPE, and nothing else has changed, then yes, he should be getting CPE.

[00:25:46] Speaker 01:
However, if you then start looking and seeing, well, did he get promoted?

[00:25:50] Speaker 01:
Did he take a position that he shouldn't be considered to be on the ship?

[00:25:57] Speaker 02:
In that instance, what you're saying, consistent with Judge Chen's hypothetical, it would make sense for him to continue to receive the CPE.

[00:26:07] Speaker 01:
To the extent that he was receiving it.

[00:26:10] Speaker 01:
I mean, he was receiving it because all the Carl Vinson service members were receiving it, even though the ship was in dry dock.

[00:26:17] Speaker 02:
Mr. Chairman, let me ask you, is it the Navy's position that it was error to pay Mr. Sharp, or then Commander Sharp, C-pay?

[00:26:29] Speaker 01:
Your Honor, that's what the district court,

[00:26:32] Speaker 01:
Court of Claims found.

[00:26:33] Speaker 01:
And yes, the Navy's position is that he should not have been paid CPE.

[00:26:37] Speaker 04:
And the Navy, and this is where it's different from the- Before he was terminated.

[00:26:42] Speaker 04:
I think that was Judge- Before he was terminated.

[00:26:44] Speaker 02:
That's a good clarification, yeah.

[00:26:46] Speaker 02:
In other words, during the period before any problems arose and when he was there and receiving CPE as the public affairs officer, does the Navy say that CPE during that period was erroneous?

[00:27:00] Speaker 01:
Given his assignment to the bank building and the fact that he never set foot on the ship, yes.

[00:27:06] Speaker 02:
OK.

[00:27:06] Speaker 02:
Now let me ask you one thing.

[00:27:07] Speaker 02:
Turning back to the issue that we were discussing at length with Ms.

[00:27:13] Speaker 02:
Elvey when she was up there, you start from the premise in these cases that when someone is reinstated, they go back to the position they were in at the time of the alleged improper separation.

[00:27:27] Speaker 02:
And I guess it's the government's position here that, okay, we do that.

[00:27:31] Speaker 02:
And when we put him back in the place he was in.

[00:27:35] Speaker 02:
That's not only the physical place, but also the whole panoply of circumstances are put back in place, namely, when his tour on the Vincent would have ended, et cetera.

[00:27:48] Speaker 02:
Is that the government's position?

[00:27:49] Speaker 02:
In other words, when he goes back, we do this sort of constructive putting him back in place.

[00:27:56] Speaker 02:
We also put him back in place.

[00:27:58] Speaker 02:
And one of the circumstances of being back in place is that his tour on the Vincent would have ended.

[00:28:05] Speaker 02:
Is that correct?

[00:28:06] Speaker 02:
The government's position?

[00:28:07] Speaker 01:
Yes, although I think the government's position is that

[00:28:13] Speaker 01:
We don't try to project some sort of hypothetical career path for him.

[00:28:17] Speaker 01:
We put him back as best we can, given the unique circumstances of this case.

[00:28:21] Speaker 02:
But the government say we're not projecting hypotheticals when we say the rule was that his tour of duty was to end.

[00:28:31] Speaker 02:
That's correct.

[00:28:32] Speaker 02:
The government would say that's not a hypothetical or a conjecture.

[00:28:36] Speaker 01:
That's correct.

[00:28:37] Speaker 01:
And I think that's what distinguishes this case from the Hawley case that Judge Stronto, you were discussing.

[00:28:42] Speaker 01:
There is no indication that the overseas assignment was going to end.

[00:28:45] Speaker 01:
And in fact, there's a footnote, footnote three, that talks about how service members were encouraged to apply for additional overseas assignments.

[00:28:52] Speaker 01:
So there is no firm date in Hawley, which was also reversed by this court on appeal.

[00:28:59] Speaker 01:
For other grounds.

[00:29:00] Speaker 01:
For other grounds, yes.

[00:29:01] Speaker 01:
But there is no firm date in Hawley that everyone agrees would have ended his rotation.

[00:29:06] Speaker 03:
But it's still unquestionable that these overseas assignments don't last forever.

[00:29:14] Speaker 01:
Sure, but the footnote says that the service members were encouraged to apply for additional overseas assignments.

[00:29:20] Speaker 01:
Here, we don't have any indication that

[00:29:24] Speaker 01:
absent this 24 to 36 month rotation, they try to put public affairs officers back on carriers.

[00:29:31] Speaker 01:
These are fairly unique.

[00:29:32] Speaker 04:
Maybe that's just an assumption.

[00:29:33] Speaker 04:
Everybody wants to go to San Diego.

[00:29:37] Speaker 02:
Tell them one question.

[00:29:39] Speaker 02:
If it was in this repair condition, how did the Vinson get to San Diego?

[00:29:44] Speaker 01:
Well, in 2010, when it moved to San Diego, it had been fixed.

[00:29:50] Speaker 01:
This was an overhaul of, I think, the nuclear

[00:29:52] Speaker 02:
It's a nuclear... Did it go from the Panama Canal to go around Cape Horn?

[00:29:56] Speaker 01:
I'm sorry, that's the... I don't actually know, Your Honor, the physical route of that.

[00:30:03] Speaker 03:
Last question.

[00:30:04] Speaker 03:
In 2008, did a new public service officer actually replace Commander Sharp in that very position he occupied for the two years prior?

[00:30:15] Speaker 01:
Yes, Your Honor, and this is an appendix 2606 and 2572.

[00:30:21] Speaker 01:
Commander Sharp himself in his

[00:30:22] Speaker 01:
Submissions to the board says that his numerical relief, that's what they call it in the Navy, his numerical relief had been ordered in, I believe, end of 2007, and was en route, and then took over his duties sometime in 2008.

[00:30:37] Speaker 02:
Mr. Holman, what was the second site?

[00:30:39] Speaker 02:
You said 2606 in the appendix, and what was the second one?

[00:30:42] Speaker 02:
2572.

[00:30:43] Speaker 02:
OK.

[00:30:45] Speaker 01:
Thank you.

[00:30:46] Speaker 01:
Also appendix 1011, well, 1011.

[00:30:50] Speaker 01:
And both those talk about the projected rotation date and the numerical relief being ordered.

[00:30:56] Speaker 01:
I see I'm over my time.

[00:30:58] Speaker 01:
So if there are no further questions, we respectfully request that you affirm on either ground.

[00:31:01] Speaker 04:
Thank you.

[00:31:08] Speaker 02:
You have three minutes.

[00:31:10] Speaker 02:
Just one question.

[00:31:11] Speaker 02:
Is your client still in the service?

[00:31:14] Speaker 00:
He is.

[00:31:15] Speaker 00:
He's here today, actually.

[00:31:16] Speaker 02:
Oh, OK.

[00:31:17] Speaker 02:
So he's in the military still?

[00:31:18] Speaker 00:
He is serving in Washington, DC.

[00:31:20] Speaker 02:
Oh, OK.

[00:31:23] Speaker 00:
So just three quick points on the Holly case.

[00:31:25] Speaker 00:
The language in Holly, which I have for you now, is?

[00:31:29] Speaker 03:
What's the site?

[00:31:30] Speaker 00:
This is at 457.

[00:31:42] Speaker 00:
which is 3033 federal claims 457.

[00:31:49] Speaker 00:
And it says that the defendant had argued that Holly was not entitled to the overseas housing allowance at all because defendant's probable career reconstruction shows that before Holly's illegal discharge from service, he would have received OHA for only another 10 months.

[00:32:06] Speaker 00:
So it would have only

[00:32:07] Speaker 00:
Continued for a certain amount of time, and it's true that there's a footnote that people in his position are encouraged to reapply But there's certainly no orders that said that would have happened or that he would have been stationed there So we can't assume that and that's not what the court did On the C-Pay issue, sorry to jump in in your limited remaining time but

[00:32:31] Speaker 02:
At what point would you have a situation where someone in Commander Sharp's position has returned to his previous position and there is a regulation or a rule that says on such and such a date you will be terminated from your post on the Vincent?

[00:32:53] Speaker 02:
Would you agree that there could be a circumstance where rules and regulations in place would control what would have happened and it would not have been speculation or conjecture?

[00:33:05] Speaker 00:
I think if you know their next landing spot then I'll agree with you.

[00:33:09] Speaker 00:
In that situation where you can project what was going to happen next.

[00:33:13] Speaker 00:
But here nobody knows what's going to happen next and so that's why we have this rule that says you have to put them back in the position that they were in but for

[00:33:23] Speaker 00:
the separation, and then treat them as though that service went on continuously until there's something intervening that takes its place.

[00:33:31] Speaker 00:
And in this case, that didn't happen until 2017 when he was assigned to his new permanent duty station in Washington, DC.

[00:33:37] Speaker 02:
So you're saying there has to be something in place of a very definitive nature that would compel the conclusion, and it would be a regulation or a rule, that

[00:33:50] Speaker 02:
circumstance A would have ended and circumstance B would have begun.

[00:33:54] Speaker 02:
Is that what you're saying?

[00:33:55] Speaker 00:
That's right.

[00:33:56] Speaker 00:
And I think the reason for that is otherwise you're putting somebody into kind of a strange position where you're assuming some other fact to replace the assignment, the permanent duty station.

[00:34:07] Speaker 00:
And in that scenario, in that world, you could kind of choose from anywhere.

[00:34:12] Speaker 00:
You're not necessarily giving somebody credit for being in Norfolk.

[00:34:16] Speaker 00:
You could have said, well, you know, maybe he actually lived in North Carolina.

[00:34:20] Speaker 00:
Are you now going to assign the rate based on the housing allowance for North Carolina?

[00:34:24] Speaker 00:
It's just, it's all speculative.

[00:34:25] Speaker 00:
And that's exactly what this rule is.

[00:34:27] Speaker 02:
And you're saying what I hypothesize, that circumstance doesn't exist here.

[00:34:31] Speaker 02:
Why would you say it doesn't exist here?

[00:34:33] Speaker 00:
Because he didn't receive new orders until he came back into the military.

[00:34:37] Speaker 00:
And those new orders placed him in Washington, DC.

[00:34:40] Speaker 00:
So until you have an assigned permanent duty station other than the USS Carl Vinson, your payment has to be according to being assigned to the Carl Vinson.

[00:34:50] Speaker 00:
And if I may just take one more minute to make one point, the argument was made before that the Army took the position that the original award of CPAY was incorrect.

[00:35:00] Speaker 00:
Maybe, sorry.

[00:35:02] Speaker 00:
I think that was actually incorrect.

[00:35:03] Speaker 00:
If you look at the born memo, which is at JA 859, it kind of clearly refutes that proposition.

[00:35:10] Speaker 00:
Thank you.

[00:35:11] Speaker 04:
Thank you very much.

[00:35:13] Speaker 04:
Case is submitted.