we will hear argument first in number teen one four zero six sharp against united states 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 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 so if we turn first to the issue of judicial stock can i ask you if we were to conclude that the claims decided the issues in the alternatives so i think you are correct that you can get there with either issue obviously we think that the court was incorrect on both issues but you can't get there that way and i guess you just help me understand this i guess i found when i was thinking about the judicial 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 the c p a or the basic housing allowance and then in order to figure out whether they were really the same i found myself pretty much getting to the merits aside from traditional stumble it's this is a really  why don't we begin with that the two hundred line direct merits questions i can do that i can turn to that issue so i'm going to the merits issue the court acted unreasonably the issue here is really the application of the constructive service doctrine and this can be found from the language in article fifteen which is the vessel exception statute which says that when somebody is reattached when the judicial punishment or any form of punishment nontraditional or otherwise is revoked required to return the rights privileges and property to that individual and this court has discussed what that means in the groves case the court of federal claims discussed it a little bit in the holly case and what you're doing is putting the service members back into the position that they were at the time of their separation here commander sharpe at the time of his separation was assigned to the u s s carl vinson and being paid according to was also receiving career sea pay the secretary at that point had decided even though the ship was being overhauled and  dock that it was paying the service members who were assigned to the ship career sea pay so if we go back to that point in time a claim a constructive service doctor in your true award him or to give him for the entire duration of his service because we treat it as though it's uninterrupted why would we be treated as an interrupted when the one thing that we know about his assignment to the u s s carl vinson is that the assignment order itself said we expect this to come to an end what is it august twenty two thousand and eight i think it was that's right and so the simple answer is really because that's the rule we've chosen that under the construct of service doctrine it is a legal fiction but it's based on the information you have at that time and if you look beyond that to the orders terminating at some point time which we can see we don't dispute that at some point his his duty station would have changed but you don't know what it is and so you don't want it don't don't don't we have had to really know what it is unless there's something to the contrary that is the order said this is simon terminates before the relevant period here in two thousand and eight and so at that point in the absence of additional information wouldn't we be indulging in speculation i mean at least speculation and indeed something what appears to be contrary to the ordinary course to say that the sun would have continued well what we don't have is an order that actually sa the assignment ends what we know is the typical assignment for a because person in commander shops position is about twenty four months at the point he was separated he still had that position it exceeded twenty four months it was all the way into i think about thirty nine months o did you i'm sorry could you explain one thing to me and one way of reading the record is you're right we have no idea what would have happened to the appellant in that period of two thousand and eight two thousand nine to two thousand and seventeen where he would have been assigned in all those years but it seems like we know one thing he would not have been assigned to and that would have been the u s s carl vinson because as judge drano pointed out these assignments are typically twenty four to thirty six months 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 two thousand and eight is that correct yet they were essentially grooming or training his replacement that that's in a record i think so i do if that's right that the replacement had already been identified and a training as of summer of two thousand and eight then what in dishes is there that would suggest that the shark would have gone back to the carl vinson in two thousand nine given that his replacement was already in place as of two thousand and eight it think the argument isn't that he would have gone back to the carl vinson it's that that's the only assignment he had at the point in time where he was separated 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 the the case out of the federal claims court the holly case is particularly helpful in this instance because in that case you had a service member who was assigned to germany was receiving overseas housing allowances for being assigned to germany and everybody knew that his assignment to germany was going to end during the period of a separate separation but the court said we can't deduct that from the back pay that we're allowing because the 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 and so to fill in the gap i mean in commander sharpe situation it would be likely more than likely that he would have been assigned had he not been separated to washington d c and all his pay would have been commensurate with somebody whose assigned duty station is washington d c but the government and the navy can argue that he's entitled to that money what they're trying to say is that he's placed in kind of this almost temporary or fictional assignment place which is really not is constructive service doctrine it instructs us to do it's to restore the rights privileges and property that somebody was receiving at the time of their separation and the only facts we have to go by there as to what that is really i yeah it's expected and i think everyone acknowledges that it was expected that he would be rotated and but for the young not for separation he would have been rotating what didn't happen i was there anything comparable to that in the holly case that is a upon being reattached that that doctor was not entitle to continue receiving the variable special pay because they weren't still practicing medicine during the time of the separation and the court said no you were receiving that at the time of the separation or dr grose was receiving that at the time of the separation and they'll continue to get it because the only reason it stopped was because of the separation there there was no other reason for it to a stop so commander sharp is very much the same he was receiving the at the time of the separation 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 and the only reason just like in groves it stopped was because he was separated really just so i understand that there isn't fair to say i don't want to kind of mistake something that's a little bit out of my expertise but somebody the secretary of the navy had made a decision a decision it's entitled the deference actually that he was entitled to this compensation now if if the secretary had decided to look at even if one could make an argument that it was an error i think i think that's right and i think we have to assume it was an error because we're not presented with with anything that suggests that was other than arguments that are made after dr sharp has been reattached and they didn't go back and say for the time where you were active in assigned to the carl vinson where we're going to revoke that c p a they actually just terminated at the point of a separation so it really is the case that his c p a was terminated because of the separation not because of any other december thirtieth thirty first of all nine and so would that mean that his c p a would have ended at that point because he was going to be the i think that's part of the problem that's why we have the rule that we have we don't know where he would have been assigned next i think we all probably suspect it would have been washington d c but we don't know that 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 and i know the government has argued that this is potentially some sort of a windfall it's no windfall to say pay him as he was at the time he was separated he lost eight years of his career so there could have been all sorts of other promotions transfers and sorts of things like that in this case that we'll never know and that commander sharp will never receive the benefit of all he's asking for is the common station he received at the time of this operation that was terminated because of the that the arguments were not inconsistent from the beginning to the end commander sharp has always accepted the position he was assigned to the carl vinson he did not physically work on the carl vinson on a day to day basis that the boat was he was in an office building the only thing that changed is how you weigh those facts under two different legal analyses 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 a ship 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 so these are different legal questions and the only argument was whether the evidence whether the facts way differently that that's not making an inconsistent argument it would be almost like saying if you're looking at it you know written description and obviousness they have some common underlying facts but different facts are going to be dispositive for different for written description than the facts that are going to be dispositive in obviousness it's it's two different legal questions and so it should be perfectly acceptable to say that the facts weigh differently  and will restore the free mourning your honour's amid cli's the court commander sharp wants to i think go back to that point in two thousand and nine but only with respect to certain things that are favorable to him for instance if we do go back to two thousand and nine 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 so as it was that promotion i'm not going to use a precise term here  one that he would have gotten in due course or was there some substantial element of competition or discretion or the like because i know in the personnel world we separate the kinds of in the restoration after a reversal of a remove all those things that involve uncertainty from those that are a matter of course i think there was there would have been some discretion in the promotion but he would have been up had he not received the non judicial punishment sort of a mark on his record in leading to the the separation proceedings he would have been up for that promotion i think it's sort of an up or out type system and he there's an indication in the record that he was going to get promoted to that particular status quo certainly just like there's an indication in the record that he would finish his rotation in june of two thousand and eight because these are twenty four to thirty six of them and nobody's disputing that that was going to happen so that's not part of this appeal the promotion right that's true honor and simply we're using that to demonstrate that you are taking the commander sharpe and freezing him in time in two thousand and nine is not what happening commander sharpe certainly argued that that shouldn't happen with respect to the promotion and that to some extent dovetails with the sudeshna stoppel argument that we that's the first issue is that  commander sharpe argued one thing with respect to the separation when it was in his favor and then turned around and argued it different point to try to get back to trying to get d h and career  he was assigned to the carl vinson but he argued that that assignment was a technicality and that the board of correction should ignore that technical on paper assignment as he called it and should focus on the practical factors where he were he worked where he lived where he stood watch where he even served as punishment where his hearing was and the board accepted that position the board said ok we're not going to look just at your technical paper assignment we're going to look to the broad circumstances and it ruled in his favor and then he turns around and says completely disregard all those other circumstances and looks into the nature of the technical isn't it let me state how i think i understand the sales b s argument or at least one version of it the vessel exception is all about the important practical consideration about whether you're going to do a court martial when somebody is you know in the middle of the south pacific and so it plays a that the purpose that drives application of that is one that properly led the board to conclude that that exception was not applicable in his circumstance when he was sitting on land the purpose and different legal things the secretary had been granting it to him when he was in this condition and there are important stability reasons to have a default rule that says that continues unless something changes nothing has changed something similar on the housing allowance so with the different legal frameworks maybe the role of the reality of on water versus not on water which change two points on that our first judicial s on like issue preclusion looks at the party's positions it's sort of a cousin of the schipperke was in but did it looks over the position the party took to prevent it from essentially speaking out about sides of its mouth and getting something on the one hand and then  that position when it's convenient and so it looks so the issues on which the party if it was just one if one states the vessel exception position as i was never on the water and for purposes of the vessel exception that think if you look at the cases we cite in the disability discrimination context the same argument can be made that 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 but the courts have uniformly applied to distil stubble and that circumstance and said you took the piss listen that you're unable to work when you are getting disability and now you're trying to get discrimination claim saying that you were able to work but were discriminated and that is something that the courts preclude litigants from switching midstream same thing here i mean if you make the issue so narrow that it for the purposes of the vessel exception commander sharpe argued that his technical assignment should not be considered but then for a bit purposes of pay but i think if you look more broadly at his position that he took before the board and then he said now the inconsistency becomes apparent he was arguing that he should be treated as though he was on land even though punishment he turns around and he says you should have done that you shouldn't treat me as though on the ship i was never on a ship i never ate there i never slept there i never you know served watch their navy acquiesces and says shark will treat you as though you're not on the ship sailors often times still stay on the ship you still are sleeping in these take orders you're eating on the ship your if he was he was not and but what if you mean you were back to say that the fog rule is and then you interrupted yourself i think eating on the ship or doing any work on the ship but he was by virtue of his assignment getting career see that through two thousand and seven when he was when he received an untraditional punishment and then he was in these administrative proceedings the last about two years even though his rotation was sets and in two thousand and eight he was just kind of stuck in administrative limbo he continued receiving see that so i think it has or taishan had ended as it was supposed to in two thousand and eight and he was assigned to say washington d c or somewhere else career c they would have terminated today and wouldn't and let's also assume for purposes of my hypothetical that commander sharpe has been reassigned to the carl vinson instead of being reassigned to d for the years before he was removed i think even that well i guess it is she is the hypothetical that despite the fact that these rotations are twenty four to thirty six months he got you the navy is reassigned him to and so the question is should he continue receiving c p a right i think that's a that's a different question obviously than here i think if they're in the absence of anything else if you look at his sort of earning statement prior to separation you see the line for  bay and nothing else has changed and yes he could he should be getting secret however if you don't start looking and saying well did he get promoted did he take a position that he shouldn't he should be considered to be on the the navy say that c paid during that period was erroneous given his assignment to the bank building and the fact that he never set foot on the ship yes ok now let me ask you one thing that it is turning back to the issue that we were discussing at length with them this was in a cell the 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 him at the time of the ledge improper separation and i guess it's the government's position here that ok we do that and when we put him back in the place he was in that's not only the physical place but also the whole  panoply of circumstances are put back in place namely when his when his tour of the vincent would have ended etc is that the government's position of that was when he goes back we do this sort of constructive putting him back in place we also put him back in place and one of the circumstances of being back in place is that his tour on the vinson would have ended is that correct the government's position yes although i think the to the extent yes the government's position is that we don't try to project some sort of hypothetical career path for him we put him about it's best we can given the unique circumstances of this case but the government say we're not projecting hypotheticals when we say the rule was that his tour of duty was to end that's correct that's not a government say that's not a hypothetical or a conjecture that's correct and i think that's what distinguishes this case from the holly case the stronger you were discussing there there is no indication that the overseas assignment was going to end and in fact there's a footnote footnote three that talks about how service members were encouraged to apply for additional overseas assignments so there's no firm date in cal this twenty four to thirty six months or a station they try to put public affairs officers back on carriers these are fairly maybe there's just an assumption everybody wants to san diego i don't want one question how did th really replace commander sharpe in that very position he occupied for the human mind two years prior yes your honor and then this is appendix twenty six zero six and twenty five seventy two commander shop himself in his submission to the board says that all because defendant's probable career reconstruction shows that but for holly's illegal discharge from service he would have received no ha for only another ten months so it would have only continued for it a certain amount of time and it's true that there's a footnote that people in his at what point would you have a situation where someone who commander sharp's position is returned to his previous position and there is a regulation or rule that says on such and such a date you will be terminated from your post on it's 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 i think if you know their next landing spot then i'll agree with you in that situation where you can project what was going to happen next 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 the separation and then treat them as though that service went on continuously intil there's something intervening that takes its place and in this case that didn't happen until twenty seventeen when he was assigned to his new permanent duty station in washington d c so you're saying there has to be something in place of a very definitive nature that would compel the conclusion suing some other fact to replace the assignment the permanent duty station and in that scenario in that world you could kind of choose from ever anywhere to not necessarily giving somebody credit for being in norfolk you you could have said well you know maybe he actually lived in north carolina are you now going to assign the rate based on the housing allowance for north carolina it's just it's all speculative and that's exactly what this rule is and you're saying what i hypothesize that circumstance doesn't exist here and why would you say it doesn't exist because he didn't receive new orders until he came back into the military and those new orders placed him in washington d c so until you have an assigned permanent duty station other than the u s s carl  payment has to be according to being assigned to the carl vinson 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 c pay was incorrect i