this case presents significant questions concerning the wreckers correction process for military office the purpose of this appeal is to reverse the district court's erroneous decision erroneous as a matter of law which if not corrected will undermine the one just the sixty eight year old military records corrections just  can you address so i get that actual question regarding whether the of your your argument or your appeals barred by the statue limitations yes your honor there is no statute of limitations question here for the simple reason that the appellant had no cause of action until two thousand and five and two thousand and eight prior to that time he had no cause of action because in his case he had voluntarily retired from the air force in order to have drifted ssion you have to have a course talk or act but then you have to have a money mandating statute and military personnel cases usually the money mandating statues the military pay act in order to take advantage of the military pay act the service member has to either be still on active duty or just separation from active duty has to have been found somehow improper or involuntary use concede that his retirement was voluntary but he won he retired that was out without his having been promoted to the major general position right he retired and in his then great of brigadier general that's correct so if we're talking about promotion and the entitlement to some sort of compensation with respect to the failure to promote why doesn't that date that to the time at which he retired well the the thrust of his case is not that is not that the denial of the promotion back in one thousand nine hundred seven was wrong the thrust of his case is that the procedures that were followed by the money mandating it's based on the refusal to pay the pay a bit of an entitled to but i don't understand how you get a money mandating claim out of the correction boards and the ultimate decision by the air force  not to order the promotion retroactively there is some clarity needed here first of all the corrections board did not make any decisions the corrections board on two occasions in two thousand and four and  two thousand and seven made recommendations now the apple e's would have you believe that all of the deciding was done at the corrections worked well well that might help actually clarify things what's the decision here on appeal it's the ultimate decision by the air force  rescission the correction board's recommendation is is a the subject of your challenge below and your subject of your child's today let me put it this way is there any yeah i think we can quibble doll exactly how you described up but i think that's what the reverse mandate the payment of money in fifteen fifty two c one there's a condition precedent it says that if a correction is made at that point if there is money to do it becomes to do and at that point the secretary has no discretion the have to let the money do is his pay statue well i'll tell you when you do the money do is this he was retroactively promoted to january one nineteen ninety two no look let me i think i'm probably confusing things unnecessarily so let me tell you where i it seems to me that you filed an eighty action of the district court but you also included some language suggesting that this might be a little to correct claims and so you had those two things going on and when it got to the d c circuit they transfer to it to us because they thought there is a little tougher claim there it seems there that there was language that a that seems to me to be time barred but we're still left with this a p a challenge to the rescission decision so as a matter of jurisdiction what do we do with the can we even though we think that tucker a little tougher that we go i would agree with you on that i'm just a little concerned whether because a little tucker act it's not just a regular statute of limitations defense it's a waiver of sovereign immunity if we are here now and we welcome a chance in order to understand this case i'd like to give you just a little recap this case has a long history i'd like to focus on just one counsel coming in which i think is your argument in telling airports not to affect the correction board's decision if the president himself had said you know i don't want this person promoted you wouldn't be here today w when the president did say he didn't want to see this person promoted at one point in time i'm asking you after the fact after the corrections or decision that it's a cover all the way up to the president and who said i disagree with the correction boards i want hypothetical though if it had been the president that did this you wouldn't be here because the president under the constitution has the power of the point operative and if he says no i don't want this person appointed the corrections board decision is that fin if the president were to inject himself at the point of the board's recommendation but not at the point of the secretary's decision i think you're right but in this case the secretary's secretary acting as a delegat of the president issued a directive which is like a mandate and he approved the recommendation to remove the injustice and he thereafter had the air force issue an appointment or let me i don't think you're getting the gist of my hypothetical assuming that happens the secretary approves the correction board's decision the president cares about that and says no i have over all the secretary in the correction or this person shall not be promoted can the president do that the statute says that it is binding inconclusive on officers of the united states and that seemed to create a constitutional problem congress can't take away the president's constitutional power to appoint officers once the secretary of the air force approved the board's recommendation and issued the directive the secretary of the air force in effect lost jurisdiction over the case except for the administrative details to carry out the correction to issue the orders on a retroactive appointment with the logic of that would seem to apply imply that once the correction board made that decision the president also what are you saying that i mean you answered my hypothetical the other way that the president c a correction or are you saying that because of the statute it has to be the president has her cell instead of his or her delegate what i'm saying is that in this case to answer your question if  the president himself want to inject himself we're we're we're probably out of luck but that's not what happened you know i know but i'm trying to we're not just deciding your case we're deciding and it's her patient the statute that could control other things in the future and if we say that the correction board's decision is binding as and that are a wall up on everybody except the president himself and that has certain ramifications and i don't understand why if you agree that the president has constitutional authority ok that's what i'm trying to get at because that seems to me to be the real source of the case is who's can ask for the president in this regard and can d o d overrule the air force in this regard delegate the secretary of defense final say over whether people should be promoted to be an officer i think that that steps on the toes of congress because congress and what doesn't your interpretation step on the toes of the president's constitutional responsibility not in our case maybe in your hypothetical but in but in our case if the president has a beef he has a beef with the secretary of the air force and he can call them on the only carpet and give him a chewing and didn't in its essence that's what happened decision we're reviewing is the air force's final decision not to promote gen twelve you know right now the final decision is not not to promote the final decision was to res overturn throw out right and the result of that is he didn't get it right i know you're describing it one way which seems more sympathetic i don't really care about the language used to describe it the ultimate result of that decision is he didn't get could refuse a promotion does it really matter whether the procedures were followed or not if the president at ultimately has the constitutional responsibility to decide hitter to promote the president can violate those procedures only what but that's not what happened here what happened here was that the secretary of the air force had since one thousand nine hundred eighty six fifteen fifty two a for the final authority to decide records corrections he consistent up to one point and then after a certain point they you know after the only general counsel stepped down they took a different tack and said all no you know that shouldn't happen and they also play fast and loose with the facts they they have upset the order of this administrative process to get past the final and conclusive language of fifteen fifty two you know a a for what they would like you to believe is that this is first of all they like to believe that this corrections board was a runaway board that needed to be controlled by the two secretaries who had to come together in an alliance to to shut down what they didn't like this board was doing the board only did what it could do in a kind of case like general but you know you don't oppose or you're not saying that the secretary doesn't have an order to make a decision in this case are you talking about the secretary of the air force from the secretary of defense defense secretary defense has nothing to do with force the secretary of the air force he is the chancellor in this case he is the one who makes the decision whether to grant equity or not and he operates under fifty fifty to a one the authority to rescind his decision the the secretary of the air force once he's made a decision he is any other officer of the united states and his own decision in that directive is binding and conclusive upon what if the president calls him and says rescind a decision if he has already issued that directive i don't think that he can that's you don't think the president can direct no the secretary of the air force not promote  nominated he'd been appointed he'd been confirmed he's a secretary of the air force and he changed the general's records and that and the secretary issued a directive making it so doesn't that reading of the statue suggest that congress well that's that's true but what i'm saying is that once the secretary of the air force has issued that directive and change the record the belief is no longer general schwab your if the president has is upset he's upset with the secretary of the air force general while here has a right to rely upon what the secretary of the air force did when he got his records correction when he won his records correction he achieved a benefit that was an in forcible obligation on the part of the air force and the secretary of the air force at that point had no discretion to do anything but to carry out the directive which was his own decision and he carried out by issuing an appointment order he in that in the c circuit the standalone e p a claims and in banks figured it was a military case wrongful discharge case where the little sucker exactly was dismissed on statue limitations grounds but they had some equitable claims mitchell the united states as you said and read it sometimes when the equitable standalone a p a claim is so inextricably intertwined with the money claim as in here or even in banks to get the wrongful discharge claim based upon all areas of the department of defense we think it's quite clear in statute the secretary of defense is the alter ego with the president and whether she or he makes any decisions here she's acting on behalf of the president and the fact that the general counsel provided advice for the secretary of the air force and say we think your decision to promote general shall you say after the fact is alter virus that has to be counseled we cannot have the service secretaries ignoring the armed offense because that would be two fourteen of the military is is corrected to say the person received an honorable discharge the v a would be bound by that by that or social security or some other administrative agency but certainly in this case congress could not pass a statute that would undermine the authority that congress is providing to the secretary of defense acting for the president because for it's perfectly another example recently the secretary of defense issued guidance to all the military services regarding how it should handle  military issue is one organization that we understand as i said there is a chain of command it starts with the president in order for the mission to be carried out in a uniform way and when there is consistency of applications across the board this fix the courts and not counsel plaintiff already made on unassuming so because fifty fifty do give the authority to the secretary to govern the board so i don't think there's anything final until the secretary can always review which decisions there's nothing that i'm aware of that says that the secretary you specifically are precluded from doing so in fact the record indicates that the secretary in this case did just that i think page eight one of the record shows that the director a b c marson the records that we're being asked to challenging that fact so once an officers removed from the promotion list the only way that officer can be promoted again is through the nomination confirmation and appointment process in this case that never occurred to b c m are simply did the appointment to the with respect to the general accounts of activity there was more than advice here on the eighteenth of january two thousand and eight he sent an e mail the acting general counsel sent an e mail to the d o d comptroller asking her to tell the fans to shut down and not make any payments to general you based upon that correction so there is more than just just invites here i want to go back to just one more time and to the importance indeed the you've lost your stiction over the appeal six months later you're having lunch the three of you saying maybe we did the wrong thing there let's resend that mandate well that's in effect what you're saying that the secretary of the air force can do what we can do rescind a decision on this directive by the president well first of all the language says all officers of the united states it doesn't say other departments other agencies other bureaus it says all officers of the united states and as for that the secretary's decision once again once he's made it it's a done deal he can't change it he too was an officer and he's got to get it right the first time and it's not like he's the standing alone trying to weigh these things he has the corrections forward to give him advice under the corrections process they can go out to any part of the air force and ask for advisories to help them decide the deal but not when the president calls with the president didn't call this case up well i think that in that case the secretary of the air force is in a real ethical pickle and he needs to just either decide to resign or you know or quit because he is under no obligation to stick by that directive once he has made it in favor of the service member this is not a service member's fault this is been a requests that you reverse the district court's decision and remanded to that court so that appropriate orders can be entered that give general shall the the full relief to which he is entitled and to which he won