ok we have three argued matters before the court as well as three submitted matters but before we get there we have some important motions that i understand searched  thank them and simultaneously express my admiration for a wonderful year of collaboration and advice and scholarship and kasia no argument but always productive  and i look forward to seeing them in this court and reading about their future careers which are wonderfully promising so i will move the admission of i think i will to this collectively and of massachusetts and then cosi a member of the bar and in good standing with the highest court of cal that is asking for a review of a promotion board or selection board or a retention board but our kids today in the basement were low or crude at the time it just church and that's the only time it can accrue under a martin afghanistan assignment sending commander santana back to florida at the end you're exactly right and those were the circumstances that led up to the improper discharge the but who both that attachment order or to the to bring this these allegations of retaliation in the form of a military pay act then why would anyone ever go through the special procedures for the military whistle blower protection act well that's a good question your honor and frankly i don't go through the special procedures for the no for the military whistleblower act so i know for them and we've had a number of cases that are brought up under the military pay in which there has been an underlying whistleblower but it's more than just the whistleblower aspect of it your honor it was the fact that she was trying to perform her duties as an environmental health officer in afghanistan facing the burn pits and burn pits you know says her detachment have become  famous or infamous as far as causing veterans disability or disability for the active duty service it's been called the a agent orange in the twenty first century you know it wasn't just her reprisal for trying to bring this to the attention of  not want to be discharged she have seventeen years and one month to go now but what about that claim where you had a regionally said that there was supposed to be a presumptive continuation for anybody everybody has said seventeen years one month the service retainer on active duty that could have half and had she done eleven more months of active duty she would have been in what they called the safe zone or the sanctuary where they actually could and we could have done that and at that point in time i think we would have you do a fifteen fifty eight board but the fifteen fifty eight designation in the statute nowhere does it really apply to the military and one of the things i think you'll remedies been attached to a military pay case and so that sounds like you're saying there have been cases and i guess the question will be what cases please tell me what they are in which a military pay act case was adjudicated challenging a discharge that occurred through this series of motions selection continuation of special selection boards and that process had not in fact run its course and yet the court of federal claims heard a challenge to the discharge seeking money that would have been paid at the discharge not occurred but on that exact sort of factor  discharges as a result of of you know decisions not to promote and so on oh i see what you're saying i have six twenty eight cases i can tell you been a decision since i looked under six twenty eight i didn't find any my notes here not considered for promotion should have been or anybody considered by the board was consider an unfair manner we've never argued that because the board had the record before the board made their decision based on the record you know can i ask what can i ask what is it that you cannot do in your new lawsuit the one that you filed in december of last year just before the six year statute limitations after the denial of the special selection board what is it that you can't do press in that case that you're pressing here well that's not some portion are  though it seems to me you probably can at least press the detachment that the detachment was president procedurally improper and that in turn led to the chain that led to the discharge and that should have been taken care of by the secretary and then sent it back for a special election board that reprisal i'm not so sure about because it's not clear to me whether the exhaustions through the special selection process is they were the relevant exhaustion for the affirming this one but the new one goes forward because that this this one isn't with prejudice to your proceeding once the exhaustion occurs nor are your precious would be that there would certainly be an argument that your firm fifteen it please the court time a commander santana brought this action seeking military but her substantive allegations of error all focus on an adverse fitness report which she claims was a reprisal for alleged whistle blowing and which in turn led to her non selection for promotion and ultimately her discharge is it what is that how does the fitness report relate to the claim of procedural error in telling her to leave afghanistan let's call that a tad detachment but your honor the allegation is that the witness reported a constructive detachment for cause and we've we've argued in the briefs and laid it out that there's no such thing as a constructive the tach from for cause that is a at an actual adjudication by the military personnel branch that someone needs to be detached for cause the words detachment for cause do not appear on the fitness he was clearly sent home early no question about it and there are military regulations that detail the process for whenever someone is detached from their current unit and i are sent home to their other eight there are base unit those are the routine and that's exactly his complaint is that you didn't follow all the rules relating to with attached not exactly your honor the there is no question we all agree that there was at the tach room and there are rules for when it as a service member's detached when you have to prepare a fitness report and those rules were implicated here there is something else it is a term of art it's called at the attachment for cause which is an administrative detachment for example from a colonel assignment or a tour of duty and not detachment for cause from the military that is that your understanding if i understand your question correctly your honor detachment for cause is not a discharge from the military it is a detachment from your current unit to a different assign and it seems to me that what judge firestone did is she may have erred in in looking at the her review of the cabin for cause based on the discharge from service as opposed to just a detachment from her current tour of duty in afghanistan and if that if that is a case is that is that a harmless error if if if judge firestone committed any error it was bending over backwards to liberally construe the complaint as alleging any possible claim within the trial court's jurisdiction but when we're talking about the adverse fitness report which is the alleged detachment for cause was a reprisal for whistleblowing that it led to her non selection and title ten establishes administrative remedies for whistleblower and non selection issues and so we respectfully submit that administrators procedures under the was a protection act as i read it once that inspector general does a report that is supposed to actually be sent to deliver to both the secretary of defense and secretary of the namea and they are allow me to explain that the inspector general can conduct the init that that's the first level of administrative remedies for whistleblower issues now the at the inspector general may determine that it full blown investigation is warranted in which case a report of investigation would be generated or as what happened in this case the inspector general could conduct an a threshold review and determine that there's insufficient evidence to warrant an investigation so at the first level of review lieutenant commander santana received a decision from the inspector general that there would be no full blown investigation the administrative review process provides expressly in the statute that if the service member or for most former service member is unsatisfied with the results of the i g is look at the matter then the step the second step stage of the administrative review process is to go to the relevant corrections board and if and if the service member is unsatisfied as a result of the second step at the corrections board level there is a special provision in the law that allows for review by the secretary of defense that's the third tier in the wedding cake lieutenant commander santana and issued the second step she filed with the b c in our but then affirmatively withdrew her petition voluntarily on her own accord and thus deprived the military of making a determination in accordance with the administrative review process that a set forth in the statute and we respectfully submit your honors that the administrative remedy is for whistleblowing and the corrections board has a a discretionary three year limitations period which is frequently waived the session at least try she certainly can even though she went there once and were true it that's right your honor and in fact from day one in this case we've encouraged within a commander santana to go through the correct process it at do you have a position about whether you would invoke waiter if she did that weaver of if she went to the corrections board and said sorry for withdrawing the last one now i'd like you to consider it does the secretary participate as an adverse party in that process so that you would either be able to and you should wave it here i know you often don't but you should hear or are you in a position to say we won't invoke waiver and you the corrections for it shouldn't invoke waiver you should address this reprisal claim on the merits even though it's some years late the only question but it would be inappropriate for me to say before the secretary tha is an exclusive remedy for retaliation claims that in other words you can't have as their training put it a military pay act i mean that masquerades as a as a whistleblower protection claim you also argue that that there is then no judicial review of that determination would we even need to address that second question that was decided by commercial but at this point in time  extremely important for the court to address whether the administrative remedies for whistle military whistle blowing are an exclusive remedy if for no other reason than the subsequent case in the trial court which is a carbon copy of the first case raises all of the same whistleblowing merits issues that the court had before in this if there is or ever a situation where the  factual basis i would support it was a lower action also support the military pay act action and assuming that you divide the relief you're looking for stead of looking to be placed back into when you're actually looking for washing pay it is possible and we could look at this case that way you know that there are so without question the focus of the underlying allegations of  are alleged whistle blowing in this case but that adverse fitness report you know if we set all the alleged whistle blowing aside and it is viewed solely in the context of a claim  that lieutenant commander santana's fitness report was inaccurate and it led to non selection for promotion and ultimately discharge there would be a military pay act claim if the administrative remedies were exhausted under six twenty eight and fifteen fifty eight to adjudicate the question of whether the special selection board was  supported supported by substantial evidence or not arbitrary capricious and that the a p a standard of review would apply and that that would be within the trial court's jurisdiction but what we have here is a situation where the perhaps due to disdain for the administrative review process we have a litigant who has completely ignored intentionally the administrative review process that  robust and is provided for by statute and when the law was passed the original military whistleblower protection act bill had a judicial review provision in it in that case we have in front of us and maybe even that december twenty sixth in case there hasn't been administrative exhaustion of the whistleblower remedy i'm not quite sure whether that's true in the twenty sixteen case maybe getting the new letter from about and not having a special selection or it isn't quite enough maybe you have to go to the correction board but in any event doesn't your idea of respect for those administrative remedies tend to support the notion that it's premature for us to conclude that even once those remedies are exhausted exhausted there is no military pay act judicial review that we should wait until there's a case in which they have been exhausted and then face the review of billet a question i know you want a favorable answer yesterday but short for the new case of what i will answer your question but just the predicate leading up to your question was that well now there's been some exhaustion but that's only with respect to the request for a selection board there's been no exhaustion and no complete exhaustion relative to the military whistleblower issues is that because they went to the wrong place no your honor it's because the lieutenant commander santana has not gone to the corrections board that's right that's right and then she didn't request review by the secretary of the navy or secretary of defense and no decision is final until you go through that administrative process for and that's the same saying we don't have a final decision and we as to which we could decide whether we have conditional review whether under the a p a or otherwise as it relates to the whistleblower protection and we've all brief matter and we respectfully submit that it is right for a decision today and would help provide helpful guidance to the trial court and to service members generally to have a ruling on this very on the discharge pursuant to non selection so the idea is that even if the initial relief is you were wrong in not having a special selection or the remedy is go and have a selection special selection board and then you come back it's missal on the merits or this that not matter traditionally exhaustion is considered to be a question of jurisdiction because we wouldn't want to say that a party who comes to court  exhausted their administrative remedies it's one shot and done if you haven't exhausted your remedies that saves your inclusive effect that exactly you don't have a dismissal on the merits that would preclude a return to court once the administrative remedies were challenging the denial of the special selection board why is that not an appropriate action in which you can say there was that the ultimate separation th know separation from the service was a consequence slightly indirect but nevertheless a consequence of a procedurally unlawful detachment and and i mean title to relief for that to the extent your honor that's what we did in both cases because all of these into the military the cause of action is military and if i put in a complaint that's the tack commander santana was your private military because contacts reason why she was discharged and why that was an improper deprivation of a pale ounce but in this case as it relates to that continuation  entitle to was a review by the chief of naval personnel as to whether or not that it was proper and that's what the military personnel manuals and we didn't get that but you know our cause of action today is really  due to military pay if i could give an example if everything happened ok the way it did reprisal you know non selection from zero per promotion detachment for cause everything and she stayed on active duty until she had her time for retirement we would not have had a cause of action under the military pay act we would have had to gone to the administrative procedures act and only thing that gives us because of the action is the fact that she was just church early ok that's what's it that's the cause of action everything underlying is incidental to and collateral to and we've always you know this court is always held and so is court of federal claims you can bring up things like this having to do with the whistleblower statute in which one could say at a minimum you have to exhaust the ten thirty four designated processes which in this case probably means going back to the corrections ward and the other the procedural error in that they allege procedural error in what you say was in fact a detachment for a cause which probably has been exhausted because that didn't cause a pay problem until the separation and the separation i know you disagree is perhaps subject to the fifteen fifty eight exhaustion and your honor if this was a straight out whistleblower case i would agree with you hundred percent but it's not the whistle blower is a factual context and i incidental collateral to it is just like i said i can't write a complaint that says a man or santana was discharged improperly without having any underlying facts  showing what led to that improper just charge and that's where it was in the government's really good about getting there kind of confusing the issue there and making it look like we're coming after a whistleblower and infamous reports and so on so for all of those are incidental and collateral to the problem the case was military pay improper just church improper just sure it's cost her military pay and allowances under the military pay act and i've been sitting here