[00:00:00] Speaker 02:
is 21-1553 Monroe versus the United States.

[00:00:06] Speaker 02:
Mr. is it Rael?

[00:00:08] Speaker 02:
Mr. Rael, please proceed.

[00:00:34] Speaker 04:
May it please the court.

[00:00:35] Speaker 04:
The trial court erred in finding the government's position was not substantially justified in awarding Mr. Monroe all the attorney's fees and expenses he requested despite his limited success on remand.

[00:00:45] Speaker 04:
The government's position on the single claim raised in Mr. Monroe's complaint was that there was no material error in justice in the Air Force's decision that Mr. Monroe should be separated from active duty due to his medical unfitness.

[00:00:59] Speaker 04:
This position was vindicated in the AFPCMR's final remand decision, which Mr. Monroe did not challenge.

[00:01:05] Speaker 04:
This should have resulted in a finding that the government's position was substantially justified.

[00:01:09] Speaker 04:
Instead, the trial court awarded Mr. Monroe attorney's fees based on a disability claim he never even raised in court.

[00:01:15] Speaker 03:
Amongst other... I'm just curious, is there a larger government policy underlying this appeal by the government?

[00:01:23] Speaker 04:
Well, I think it goes to some of the errors that the trial court made in its decision here.

[00:01:28] Speaker 03:
Right.

[00:01:28] Speaker 03:
I'm just curious if the reason why the government has appealed this is because there's some broader potential impact that the government's concerned about.

[00:01:38] Speaker 03:
Yes.

[00:01:38] Speaker 03:
Or is it just more, we think, on the facts of this one case, this one judge made a bad ruling?

[00:01:49] Speaker 04:
No, there are broader impacts, Your Honor.

[00:01:52] Speaker 04:
And it goes to the errors that the trial court made here, such as fundamental misunderstandings about the nature of a Tucker Act claim, the role of the AFPCMR in adjudicating applications for the correction of records, as well as the factors the court must consider in determining whether an age award should be reduced for limited success.

[00:02:15] Speaker 04:
So touching on the role of the AFBCMR, because that's a big one that could have broader impact.

[00:02:22] Speaker 04:
The trial court's finding of a lack of substantial justification here was based upon the AFBCMR's failure to grant a disability retirement in its first two decisions.

[00:02:34] Speaker 04:
And that fundamentally misunderstands the role of the AFBCMR.

[00:02:38] Speaker 04:
Under its regulations, the AFPCMR is not an investigative body that's charged with finding and correcting any potential error or injustice in the applicant's military records.

[00:02:48] Speaker 03:
Rather... But is that sort of what happened here when the medical consultant came in at the late hour and made the recommendation?

[00:02:57] Speaker 04:
Well, the medical consultant came in and... Just to bump up the disability ratings from 20 to 40?

[00:03:04] Speaker 04:
The medical consultant had noted in his advisory opinion some medical records that suggested that Mr. Monroe should

[00:03:18] Speaker 04:
should be put on a profile and that he should be able to work at his own pace and carry out physical activity, his own pace exercise.

[00:03:29] Speaker 03:
Who made the request to have the medical consultant take a second look at the medical records?

[00:03:36] Speaker 04:
Well, the ASPCMR made the request that the medical consultant

[00:03:41] Speaker 04:
the medical consultant take a look at the records and opine on the issues that were remanded.

[00:03:46] Speaker 03:
And why did the board elect to make that request during the second remand?

[00:03:53] Speaker 03:
as opposed to the first remand or the original decision?

[00:03:57] Speaker 04:
The board did request advisory opinions in the first two decisions.

[00:04:04] Speaker 04:
I know that there was a medical advisory opinion in the first remand decision.

[00:04:09] Speaker 04:
And this is quite common in a case where you're talking about whether an applicant was fit or unfit for duty, that you would have a medical consultant come in and opine.

[00:04:20] Speaker 04:
on the medical records there.

[00:04:23] Speaker 04:
The board didn't ask the medical consultant to opine on whether or not Mr. Monroe's disability rating should be increased.

[00:04:29] Speaker 04:
Mr. Monroe was not requesting that relief.

[00:04:32] Speaker 04:
The medical consultant did mention the disability rating in his advisory opinion.

[00:04:40] Speaker 04:
In response to that, Mr. Monroe specifically requested an increase to a 40% rating during the second remand.

[00:04:48] Speaker 04:
This is the first time the AFPCMR or the trial court that he had requested an increased disability rating or requested disability retirement pursuant to 10 USC 1201.

[00:04:59] Speaker 04:
So in response to that, the first time the AFPCMR considered substantively whether Mr. Monroe should be, his disability rating should be increased

[00:05:08] Speaker 04:
It did, in fact, increase it at that time.

[00:05:11] Speaker 04:
Yet the trial court found that one of the reasons that Mr. Monroe should be entitled or that the government's position was not substantially justified was because the FBCMR didn't address this earlier, didn't increase his disability rating in the initial decision or the first remand decision.

[00:05:29] Speaker 04:
But the board had no obligation to look at it.

[00:05:32] Speaker 04:
Mr. Monroe didn't request it.

[00:05:34] Speaker 04:
And in fact, he had stated in the initial proceedings that he was not entitled to a medical retirement.

[00:05:41] Speaker 04:
So there was no basis for this finding that the AFPCMAR's failure to increase his disability rating and grant him a disability retirement should be a basis for the government's position not being substantially justified.

[00:05:58] Speaker 03:
Is there any case law on how to frame and characterize accurately what is the government's overall position in a given case when trying to figure out whether that position was in fact substantially justified under IJA?

[00:06:16] Speaker 03:
Well, it's trying to look at the entire... Yeah, I'm asking if there's case law on that, because right now there's a dispute in figuring out how to characterize the overall government position in this case.

[00:06:28] Speaker 03:
Right, and that's... You want it to be much more, I guess, complaint-centric, complaint-driven.

[00:06:35] Speaker 03:
The plaintiff is making a certain complaint with a certain theory, and then you're

[00:06:42] Speaker 03:
position is responding to that theory and that response is how you characterize the government position.

[00:06:49] Speaker 03:
The other side would have the government's position be whatever that

[00:06:55] Speaker 03:
rating was that the board chose to not disturb the 20% disability rating.

[00:07:04] Speaker 04:
Sure.

[00:07:04] Speaker 04:
A good case that looks at what the overall position of the government is would be the DGR decision that we cited in our brief, where this court looked at a jurisdictional argument that the government had made, and it said,

[00:07:20] Speaker 04:
you know this argument has little merit and on its own we might not find the government's position substantially justified based on this one argument but really this was this was a small part of the of the overall case and the the main part of the case the government's position was substantially justified.

[00:07:36] Speaker 04:
The Gattini case that we cited in our

[00:07:40] Speaker 04:
In our reply, I believe that was from the Sixth Circuit.

[00:07:43] Speaker 04:
But that was one where there were really two main issues in the case and the Seventh Circuit, actually, I think it was.

[00:07:49] Speaker 04:
But whichever court it was said that the government's position was substantially justified on one.

[00:07:56] Speaker 04:
It was not substantially justified on the other.

[00:07:58] Speaker 04:
But the first issue was the more prominent.

[00:07:59] Speaker 04:
Therefore, the government's position was substantially justified.

[00:08:03] Speaker 04:
Here, what was clearly most prominent in this case was

[00:08:06] Speaker 04:
whether or not Mr. Monroe was fit for duty and should be restored to active duty.

[00:08:11] Speaker 04:
That's what this complaint was all about, challenging the AFPCMR's decision that there was no material error or injustice in that determination.

[00:08:20] Speaker 02:
And so... And just to be clear, because Judge Chen characterized your position one way, you know, you want to look at it in one manner, and characterized

[00:08:33] Speaker 02:
the Monroe position as directed to disability.

[00:08:40] Speaker 02:
But I think, aren't you arguing now that that is actually not what the Monroe position was directed to?

[00:08:46] Speaker 02:
It was directed to fitness.

[00:08:48] Speaker 02:
And if he had prevailed and been deemed fit, that would not have resulted in a 40 percent disability rating.

[00:08:54] Speaker 02:
It would have

[00:08:55] Speaker 02:
resulted in his not being separated from his position, correct?

[00:09:00] Speaker 02:
A whole different remedy, completely different.

[00:09:02] Speaker 04:
Absolutely, Your Honor.

[00:09:03] Speaker 02:
Would not have gotten him a 40% disability.

[00:09:05] Speaker 04:
Yes, he would not have been separated from active duty, exactly, just like you said.

[00:09:12] Speaker 04:
That's correct.

[00:09:15] Speaker 00:
Why?

[00:09:17] Speaker 03:
Why couldn't it be that the claims court in this instance had the discretion to look at the larger picture here and see

[00:09:26] Speaker 03:
What was going on was certain maneuverings by the board to try to evade defending a position it didn't want to defend.

[00:09:36] Speaker 03:
And then created that outcome for itself by suddenly granting a sizable financial offer to Monroe that he couldn't refuse.

[00:09:49] Speaker 04:
Well, that's not what the AFBCMR did.

[00:09:51] Speaker 04:
That's not what the trial court found, and that's not what the AFBCMR did in its decision.

[00:09:55] Speaker 04:
It addressed the issues that the court had ordered it to address on remand.

[00:10:02] Speaker 04:
made no determinations that Mr. Monroe should have been found fit for duty or that there was any material error or injustice in the Air Force's determination that he was unfit for duty.

[00:10:13] Speaker 04:
And then at the end of its decision, it addressed his alternative request for 40% disability rating and determined that that request was in fact well taken and granted him the 40% rating.

[00:10:27] Speaker 04:
the first time he requested it before the AFPCMR.

[00:10:29] Speaker 02:
So can I get you to focus please on Appendix Page 7?

[00:10:32] Speaker 02:
It's a portion of the lower tribunal's decision and in particular a fact-finding that we review deferentially.

[00:10:40] Speaker 02:
And I want to understand if the government believes this fact-finding lacks substantial evidence.

[00:10:48] Speaker 02:
In particular, it's maybe the third full paragraph, the sentence that begins, plaintiff has been forced to litigate.

[00:10:57] Speaker 02:
Do you see that sentence?

[00:10:58] Speaker 04:
Yes.

[00:10:59] Speaker 02:
Plaintiff has been forced to litigate defendant's position since the Air Force's determination in 2014, which the board ultimately determined was faulty.

[00:11:11] Speaker 02:
What was the determination in 2014?

[00:11:14] Speaker 04:
The determination in 2014 was that Mr. Monroe was unfit for duty and should be.

[00:11:21] Speaker 02:
So did the board ever find that determination was faulty?

[00:11:25] Speaker 04:
No.

[00:11:25] Speaker 02:
Right.

[00:11:27] Speaker 02:
But this is a fact finding upon which she predicated her determination of an not substantially justified litigation position, correct?

[00:11:35] Speaker 03:
That's correct, yes.

[00:11:37] Speaker 03:
I suppose the other side would say, well, the plaintiff has been

[00:11:44] Speaker 03:
that the defendant's position that the plaintiff had been litigating against was the position that the disability, this person gets a disability rating of 20%.

[00:11:58] Speaker 03:
And so the board ultimately determined that rating was faulty because they went to 40%.

[00:12:08] Speaker 03:
But that rating was never part of... I'm just trying to get inside what the judge below must have been thinking when...

[00:12:17] Speaker 03:
when the court said what it said here.

[00:12:19] Speaker 04:
Yeah.

[00:12:20] Speaker 04:
I mean, Mr. Monroe had challenged the Air Force's decision, the Secretary of Air Force Personnel Council decision since 2014 through the AFPCMR process.

[00:12:30] Speaker 04:
But that decision was about his fitness, fitness for duty.

[00:12:34] Speaker 04:
He did not challenge the VA's disability rating that was applied by the Air Force of 20% until the tail end of the second remand proceeding, at which time the AFPCMR

[00:12:44] Speaker 01:
Granted, so that should not be... Just so I know, when was the 20% disability rating assessed?

[00:12:53] Speaker 04:
I believe it was initially assessed by the VA in, I think it was 2013, though I'm not 100% sure if that's in the record.

[00:13:04] Speaker 02:
Well, but the reason I ask is because she says, since the Air Force's determination in 2014, so if this disability rating

[00:13:13] Speaker 04:
20% was a year other than 2014 she can't possibly be referring to that could she Well that that's what's that's what's so confusing your honor I mean yes, I mean the disability rating I believe it was a

[00:13:29] Speaker 04:
It was affirmed by the VA in 2014, but I mean, she's referring to... She must be referring here to... Well, she says the Air Force's determination.

[00:13:38] Speaker 04:
Right.

[00:13:39] Speaker 04:
Yeah.

[00:13:39] Speaker 04:
No, I mean, the Air Force made a determination about fitness.

[00:13:43] Speaker 02:
Right.

[00:13:43] Speaker 02:
The only determination the Air Force made was about fitness, correct?

[00:13:47] Speaker 02:
The Air Force didn't make the 20% disability determination, did it?

[00:13:52] Speaker 04:
No.

[00:13:52] Speaker 02:
Right.

[00:13:53] Speaker 02:
So when she says the Air Force's determination, doesn't she have to be talking about fitness?

[00:13:59] Speaker 02:
I mean, I don't see the Air Force itself deciding how disabled someone is.

[00:14:04] Speaker 04:
I think you're correct, Your Honor, and then that would make the statement that which the Air Force also determined was faulty to be incorrect.

[00:14:11] Speaker 04:
That's correct.

[00:14:12] Speaker 02:
Why don't we give Mr. Monroe a chance to respond?

[00:14:15] Speaker 04:
Thank you, Your Honor.

[00:14:21] Speaker 02:
Mr. McKay?

[00:14:23] Speaker 02:
Please proceed.

[00:14:29] Speaker 00:
Thank you, Your Honor.

[00:14:31] Speaker 00:
If I may just start off and address your question rather than my prepared remarks from my colleagues colloquially with you all.

[00:14:40] Speaker 00:
I think that in the joint appendix at page seven that the court was just referring to,

[00:14:46] Speaker 00:
with the government.

[00:14:48] Speaker 00:
The reference to 2014 is, in fact, the determination of the Air Force that Mr. Monroe was unfit because of his diabetes.

[00:15:00] Speaker 00:
At that point, he then went to the AFBCMR to challenge that.

[00:15:07] Speaker 00:
And I think the reference here by the trial court that the AFBCMR ultimately determined was faulty, that was the process

[00:15:16] Speaker 00:
by which the Air Force ultimately came to that conclusion in 2014.

[00:15:22] Speaker 02:
I'm confused.

[00:15:23] Speaker 02:
It says plaintiff has been forced to litigate defendant's position since the Air Force's determination in 2014, which the board ultimately determined was faulty.

[00:15:38] Speaker 02:
My plain reading of that is that she's saying the Air Force's 2014 determination

[00:15:43] Speaker 02:
was later found to be faulty.

[00:15:44] Speaker 02:
That's not what you think she was saying?

[00:15:47] Speaker 00:
I think what she's saying is that the six years of litigation since 2014 that ultimately led to the board's determination that the process leading to the determination that he was unfit was faulty, as evidenced by the two remands back to the board, the first remand being in 2014.

[00:16:13] Speaker 00:
18 and the second one in 2019.

[00:16:15] Speaker 00:
That, I believe, is at least Mr. Monroe's position as to what the trial court is referring to in that part of her decision.

[00:16:27] Speaker 03:
I guess the concern here is that the grovelment of your complaint was always about this challenge to the Air Force's finding that your client was unfit for duty.

[00:16:40] Speaker 03:
And ultimately, that prayer for relief to be restored to active duty was something that Mr. Monroe ultimately abandoned.

[00:16:52] Speaker 03:
And by jumping tracks from the attempt to get restored back to active duty to an acceptance that he is unfit for duty, but getting this higher disability than what had been originally accorded to him.

[00:17:10] Speaker 03:
And so in that sense, we don't really have anything in the record.

[00:17:16] Speaker 03:
At this point in time, your side is no longer disputing that Mr. Monroe is unfit for duty.

[00:17:25] Speaker 03:
That's correct, Your Honor.

[00:17:26] Speaker 03:
And so that's why I'm trying to understand how is it that the court below can say, well, the government's position was not substantially justified when, at this point in time, nobody disputes that Mr. Monroe is unfit for duty.

[00:17:47] Speaker 00:
I think, going back to the original premise of your question, I think the gravamen of the complaint, the so-called claims for relief alleged in the complaint and amended complaint, basically went to Mr. Monroe's allegation

[00:18:01] Speaker 00:
that there was arbitrary and capricious decision making by the Air Force and then the board in review of the Air Force in concluding that he was properly separated from the Air Force with disability severance pay.

[00:18:19] Speaker 00:
And to be sure, Mr. Monroe ultimately sought initially a restoration to active duty as a result of that error.

[00:18:27] Speaker 00:
But that demand for relief also had an alternative request that

[00:18:33] Speaker 00:
that he requested several times before the board, that he be placed in a retirement status as an alternative.

[00:18:40] Speaker 00:
So I think the transition... I don't know.

[00:18:43] Speaker 03:
What does that last element have to do with anything?

[00:18:47] Speaker 03:
I mean, if Mr. Monroe's complaint had said, I want to be either restored back to active duty, because it was arbitrary and capricious to put me on disability,

[00:18:59] Speaker 03:
Or alternatively, this disability rating is too low.

[00:19:03] Speaker 03:
It needs to go up to 40% or more.

[00:19:07] Speaker 03:
Then I would understand what you're getting at.

[00:19:11] Speaker 03:
But this extra element of being moved to retirement status, I think it was because Mr. Monroe is so close to the 15 years of service,

[00:19:23] Speaker 03:
I don't quite understand what that has to do with anything.

[00:19:26] Speaker 02:
Is your argument that we should read an inference into his alternative request for disability retirement, the inference being that that retirement's only, you're only eligible for it if you're rated at 30% or more disabled.

[00:19:41] Speaker 02:
And since he was rated 20%, his alternative request for disability retirement is a sort of in fact request for a higher rating than 20%.

[00:19:52] Speaker 02:
Your argument?

[00:19:54] Speaker 00:
In Mr. Monroe's complaint and his amended complaint, he did not request as an alternative form of relief, placement in retirement status.

[00:20:06] Speaker 00:
However, in both the first remand and the second remand,

[00:20:10] Speaker 00:
in front of the board, Mr. Monroe did, in fact, offer to the board that he would be willing to take as a corrective measure from the board, alternative retirement status, whether 15-year, which was a program the Air Force was offering at one point.

[00:20:27] Speaker 02:
Can you show me where he first made this allegation, suggestion, claim, however you want to frame it?

[00:20:34] Speaker 00:
I'm sorry, your honor.

[00:20:35] Speaker 02:
Can you show me where he first, where in the record did he first

[00:20:40] Speaker 02:
Make his request for disability retirement You bear with me one second your honor, I think I can

[00:21:13] Speaker 00:
I'm not having it right at my fingertips at this time, Your Honor.

[00:21:18] Speaker 00:
But in the brief, we point out the points where he makes this both in his initial comments to the advisory opinions and the initial AFB CMR decision, and then subsequent in comments to the medical

[00:21:39] Speaker 02:
The only place I saw this was in response to the second remand, not the first remand.

[00:21:45] Speaker 02:
So I'm trying to understand exactly when he introduced this idea of an increased disability rating or disability retirement, either one alternatively, into the dispute.

[00:21:57] Speaker 02:
I understand it to only be after the second remand.

[00:22:00] Speaker 02:
So I would like you to correct me if I'm wrong about that.

[00:22:15] Speaker 02:
The first place I found is a 406 if that helps you but that's again after the second remand But maybe if you look at that it'll jog your memory that there's somewhere earlier and

[00:22:44] Speaker 00:
Well, I can't put my finger on it right now, Your Honor, but I think the court has raised a good point.

[00:22:49] Speaker 00:
But I will submit that Mr. Monroe, in the record,

[00:22:55] Speaker 00:
And in our brief, we articulate where Mr. Monroe initially, in front of the AVIPCMR before, in its initial decision, said he'd take a 15-year retirement, and then both in comments to the first medical advisor's advisory opinion and the second medical advisor's advisory opinion.

[00:23:12] Speaker 00:
In each case, Mr. Monroe made it clear in those comments that he would accept as an alternative some retirement status.

[00:23:22] Speaker 00:
And indeed, he was ultimately

[00:23:25] Speaker 00:
made that final comment, as noted by my colleague, when the medical advisor said, you know, in the 2020 decision, leading to the 2020 decision, the medical advisor commented in 2019, you know, after all this time, you're right.

[00:23:41] Speaker 00:
There was an error in the decision-making process.

[00:23:45] Speaker 02:
So, counsel, the only place I can find that you addressed this in your brief, let me direct your attention to page 8.

[00:23:56] Speaker 02:
And again, this is citing pretty much the same thing I just pointed you to, which is his comments after the second remand at page 406.

[00:24:06] Speaker 02:
Am I missing somewhere else in your brief where he may have made this allegation?

[00:24:12] Speaker 02:
Because it's kind of really important, since you're suggesting that this is the position of the government that was not substantially justified in part.

[00:24:22] Speaker 02:
This is the position of the government that was not substantially justified.

[00:24:25] Speaker 02:
But if this wasn't the dispute for the vast majority of this conflict, then it's kind of hard to say the government took a substantially unjustified position on something that wasn't in dispute.

[00:24:38] Speaker 00:
The first one, Your Honor, and I'm sorry if you mentioned this, but on page two in the statement of facts,

[00:24:48] Speaker 00:
It notes that Mr. Monroe made comments to the AFBCMR initially and in those comments Mr. Monroe requested as alternative relief to his reinstatement to active duty that the AFBCMR consider correction of his records to reflect his retirement under a force reduction initiative authorizing retirement for the

[00:25:11] Speaker 00:
Air Force offices 15 years of active duty service citing appendix 254 that's on page 2 of my brief But this is just asking if he can be retired early and

[00:25:37] Speaker 02:
This is not asking for anything at all.

[00:25:40] Speaker 02:
It doesn't even use the word disability anywhere in it.

[00:25:44] Speaker 02:
So this has nothing to do with whether or not his disability rating should be increased.

[00:25:50] Speaker 00:
Nothing at all.

[00:25:51] Speaker 00:
You're right, Your Honor.

[00:25:52] Speaker 00:
And the first time Mr. Monroe raised before the board, the question of disability retirement was when the medical consultant, in his advisory opinion to the AFBCMR,

[00:26:07] Speaker 00:
2019 Mr.. Monroe said look you have you have raised this issue I should have received a 40% rating rather than a 20% rating if you do not restore me to active duty then alternatively That's an error for which I reach I should receive disability retirement that is indeed the first time that he raised that issue of disability retirement in lieu of

[00:26:31] Speaker 00:
of anything else.

[00:26:32] Speaker 00:
However, that is, it wasn't some big shift in his position before the court or the board, because that was just one more step in alleging that the board and the Air Force had engaged in arbitrary... With all due respect, it's an enormous shift.

[00:26:50] Speaker 02:
He argued throughout

[00:26:52] Speaker 02:
in his complaint and throughout the entire first remand that he was actually fit for duty, that his 20% disability based on diabetes should not have caused him to be separated, that he was in fact fit and capable.

[00:27:06] Speaker 02:
And what he was instead awarded was a higher level of disability.

[00:27:10] Speaker 02:
I see those things not necessarily to be mutually exclusive, but to really not be the same argument.

[00:27:17] Speaker 02:
I don't see how you can say it wasn't a shift.

[00:27:21] Speaker 00:
Well, Your Honor, what it demonstrated was the process by which the Air Force had looked at his disability process, necessitating two remands because of error.

[00:27:34] Speaker 00:
That was arbitrary and capricious decision making that Mr. Monroe challenged, saying that I was wrongfully separated with severance pay.

[00:27:43] Speaker 00:
Now, he said I should have been retained, but the fact is that his demand for relief

[00:27:49] Speaker 00:
shouldn't obviate the fact that he was also claiming to get to that demand for relief.

[00:27:55] Speaker 00:
He had to actually specify there was arbitrary and capricious decision making.

[00:27:59] Speaker 00:
Otherwise, he'd never get to the point where he could demand relief from the board.

[00:28:03] Speaker 00:
He had to demonstrate there was arbitrary and capricious decision making.

[00:28:06] Speaker 00:
And that's what he did.

[00:28:09] Speaker 00:
That resulted in two remands.

[00:28:11] Speaker 00:
And then ultimately, the Air Force concluded, why yes, Mr. Monroe, you're correct.

[00:28:16] Speaker 00:
We have found an error, and this is the error we found.

[00:28:20] Speaker 00:
Now, it wasn't the relief that he may have been hoping for, but it ultimately was relief from his allegation of arbitrary and capricious decision making that the Air Force wrongfully separated him with disability severance pay.

[00:28:36] Speaker 00:
Because make no mistake, there's a significant difference between disability severance pay and disability retirement.

[00:28:45] Speaker 00:
And I think the trial court basically noted that you shouldn't confuse the relief sought with the claims for relief.

[00:28:57] Speaker 00:
The claims for relief were really claims of error.

[00:29:00] Speaker 03:
Just really quickly, what's wrong with understanding the government's overall position here as the position they took in response to the complaint you filed?

[00:29:11] Speaker 03:
The complaint you filed was saying,

[00:29:13] Speaker 03:
Mr. Monroe should be restored to active duty and the overall position of the government is no, he should not be because the determination that he was unfit for duty was correct.

[00:29:27] Speaker 03:
What's wrong with that understanding?

[00:29:29] Speaker 00:
I think it fundamentally mischaracterizes what the Air Force position was.

[00:29:35] Speaker 00:
The Air Force position was that

[00:29:43] Speaker 00:
There was no material error or injustice with respect to the separation process that resulted in Mr. Monroe's separation from the Air Force with separation pay in 2015.

[00:29:56] Speaker 00:
It wasn't to the merits of whether or not he was fit or unfit, but it was that process.

[00:30:07] Speaker 02:
Unless there are any more questions, I'm out of time.

[00:30:11] Speaker 02:
Government has some rebuttal time.

[00:30:12] Speaker 02:
Please proceed.

[00:30:41] Speaker 04:
Thank you.

[00:30:42] Speaker 04:
Just a couple quick points.

[00:30:46] Speaker 04:
I think we may have eventually gotten to this during Mr. Monroe's presentation, but it is Appendix page 254 where he makes this alternative request for retirement.

[00:30:56] Speaker 04:
And as I believe Judge Chen correctly said, this was for a 15-year longevity type of retirement that was authorized apparently at that time, not disability retirement.

[00:31:07] Speaker 04:
On this very same page, Mr. Monroe says, Major Monroe's otherwise exceptional health is ironically encountered to how the boards have depicted his condition too good and his diabetes too well managed to warrant a medical retirement.

[00:31:21] Speaker 04:
So he does mention medical retirement on that page and expressly says he's not entitled to it.

[00:31:25] Speaker 04:
And just to respond to the other point about the distinction that Mr. Monroe and the trial court are trying to make about,

[00:31:34] Speaker 04:
relief versus claim here.

[00:31:36] Speaker 04:
The relief requested is an important part of defining a Tucker Act claim because a claim under the Tucker Act has to be founded upon a particular money-mandating source of law, such as an act of Congress.

[00:31:49] Speaker 04:
Here, Mr. Monroe's complaint was founded upon 37 U.S.C.

[00:31:51] Speaker 04:
204, the Military Pay Act seeking active duty pay, whereas a disability retirement claim is founded upon a

[00:32:00] Speaker 04:
separate money mandating statute, 10 USC 1201.

[00:32:04] Speaker 04:
So these are plainly two distinctly different claims.

[00:32:10] Speaker 04:
And the government's position in this case, because his claim was for, was a challenge to the unfitness determination, that's what the government's overall position in this case.

[00:32:20] Speaker 02:
One of the things that Mr. Monroe's counsel argued was that the procedure that the government employed

[00:32:29] Speaker 02:
was constantly at issue and was in fact arbitrary and capricious as argued by his client and it necessitated multiple remands.

[00:32:38] Speaker 02:
Can that ever be a basis for a determination that the government's position is not substantially justified when there is necessitated by virtue of government action the need for in series multiple remands for the government's failure to

[00:32:59] Speaker 02:
address and adjudicate and properly resolve issues?

[00:33:04] Speaker 04:
It could potentially be in some cases if the plaintiff ultimately obtains relief on that claim, which Mr. Monroe didn't hear.

[00:33:13] Speaker 04:
I mean, we did acknowledge one error by the AFPCMR in considering regulations and policy that were promulgated after Mr. Monroe's

[00:33:23] Speaker 04:
the final fitness determination in 2014.

[00:33:26] Speaker 04:
But then when the FPCMR looked at that again during the second remand, without regard to those regulations and policy, it determined that there was still no material error in justice in the determination that he was unfit for duty.

[00:33:39] Speaker 04:
So in this case, that's not a sufficient basis for finding the government's position substantially justified, not substantially justified.

[00:33:49] Speaker 04:
The court's focus in the decision was on the disability rating in any event that was not a part of the complaint, was not challenged, excuse me, not challenged in the complaint.

[00:34:00] Speaker 04:
I see my time is up.

[00:34:02] Speaker 04:
Okay.

[00:34:02] Speaker 04:
Thank you.

[00:34:03] Speaker 02:
Thank both counsels.

[00:34:04] Speaker 02:
This case is taken under submission.