good morning everyone before we begin our oral arguments just schooled and i would like to thank judge as for district of hawaii for joining us and helping us with our busy docket we appreciate your assistance very much privilege and we have two cases that are submitted on the briefs at this time united states for sperling and sacher versus the bank of new york mellon also just for planning purposes we will probably take a seven reasons why the panel is completely appropriate to set aside and declare as unlawful the secretary of the army decision to separate damon claiborne's just months shy of his twenty year retirement and after briefly walking through those seven points of course then i'd like to answer any questions the panel may have before tendering my time to rebuttal the st reason is we believe the secretary of supporting our papers exceeded the statutory authority that the congress granted him in section five  from active duty as part of that sees me you're breaking up a little bit i don't know if you're on a landline or not but it's difficult to hear you i'm terribly sorry your honor what's the last thing you copied well we heard you but it was starting to break so i do have a question about that was that one of the issues that you raised in the district court yes ma'am with we spent listening to supreme court cases of bone and limb graft we knew little into it and could create a retroactive rule and then thirdly weather map the actual adjudication of the statutory rule making authority was appropriate and lawful under the presumption that legislation rules are didley rather well i have a question about the retroactivity point under the previous rules regulations and policies your client could have been separation at that time a board of officers recommended that he would deserve each soldier should be retained ok ok that and that we're not we're not communicating well of them because my i guess that my question was they have the right to  charge him at that time they chose not to do it but they did always have the right to do so correct at that time as judge and is there is there any  applies when no other provision of the regulation applies and in this instance the regulation prohibiting administrative double jeopardy does a plot in the exceptions to that rule as set forth in the regulations six hundred and thirty five dollars ish two hundred female in his care to lead them in combat circumstances they said into professional in schools and also contract it's awesome so deserving of continued service that they contracted with him to take him through twenty years of active service so he would be constitutional issues here and by virtue of that the record is devoid of the points that i'd like discussed the record is devoid of any we will consideration on the secretary's part it took a hard look at what was apparently a very simple but nowhere in many of the records before the court when you see that the secretary said well if we just wait for the most everybody's interests are satisfied here so with that said in the papers returning to the opening points no congressional grant of retroactive application authority and the united states has depleted to that its peepers moreover through the course of the separation proceedings out of thin air the secretary contrived and demonstrated proclivity as a basis to separate start and clean well i didn't read the decision that were to be just speaking for myself but there is a story if there is a stray mention of the word proclivity but it appears just from my reading of the perp the reason is the conviction and the directive or the policy or the memorandum however you describe it pertains to those convicted of a sex offense if they haven't already been discharged or dismissed so i guess i just don't read that as being part of the actual decision well i'm well judge of course they respect that but at the same time showed a real supreme court case one thousand nine hundred and forty seven instructs us that we're supposed to take the agents you secretary at the actual record in reasons they provided right and the main reason they provided was that conviction and the question is whether that strains sentence alters the primary basis which is the conviction we believe it does judge and i there is why the secretary didn't show chose that specific language the secretary said that they reevaluating claiborne's services and in light of his demonstrated proclivity for sexual misconduct the services were no longer required as we know the army secretary made a decision to separate mr claiborne for the government's convenience under its army regulation you know this seems like a rather straightforward case to me i me maybe i'm missing something here but it looks like everywhere that he came in contact with the army's processes the judicial process as provided by the army or quasar judicial processes reviews and so forth the people who were in touch with him people who had closer contact with him all recommended either retirement or allowing him to stick around or i mean he was promoted he was retained and it just it then we have a blanket policy which is laid out by the secretary which kind of scoops him up  and treats him in the same way as it would somebody who had been convicted of child molestation six months before the policy went into effect now that's the way it is the question is in this case is it constitutional that's it it seems to me well if that's the question your honor we don't think that there really have been constitutional questions brought in this appeal there's an administrative double jeopardy argument army didn't follow its regulatory scheme in this army regular called double jeopardy was unconstitutional anyway go ahead well the argument is we've read it is that it was a violation of the army regulation chapter seventeen i think  is not criminal punishment to be separated from the army well that's right this court i believe in united states v smith held somewhat similar context the same army regulation a chapter ten  discharge in lieu of a court martial a dishonorable discharge you understand it was not a punitive sanction that it was in the ministry of separation and right now i understand that i'm just saying i thought the argument from the other side was there were constitutional  i don't you know my understanding the opposition's argument on retroactivity is largely based on the supreme court's ruling in the bowen case regarding the medicare payments and the court in that instance  the question is whether the secretary had the authority to do with the secretary and the answer is yes you know the army regulation here all along even before the army directive allowed for the secretary to exercise his plenary authority in his discretion for the government's convenience to discharge a soldier or so so without let's go back out earlier when the initial perceiving sent her down the decision was made not to discharge u nder the former regulations could the secretary have changed his or her mind any time yes yes and double and there be no administrative double jeopardy right and one thing i would point fourteen cents it doesn't by its plaintext restrict the secretary's retention of his authority to discharge for the government's convenience so there's nothing in the regulatory scheme that sets forth that these earlier proceedings well the secretary had the authority under the army regulation to consider mr claiborne for discharge and the secretary for a secretary of the government's convenience so our view is if there was there was not a violation of well it's true you know the district court noted that the parties hadn't briefed any th circuit law about review of a b c m r decision army board for the correction of military records that was a new issue i would point out that at times this court seems to have reviewed similar types of decisions by the military under the modified mendez test for example the christofferson case that the government cited in its response brief and our view is if even if th uses the modified mendez test adopted by this court that the outcome would be the same it might you know we would argue with that where that the a political task that this wouldn't necessarily be even be reviewable because if the degree of observation but does that point at all into the analysis well it's something that the army actually did explicitly consider you know obviously mr claiborne had financial expectations had retirement plans he had served the military long and he had military expertise in that but to be clear that's something that the army board the a b c m r did explicitly take into account and it it  service and the military expertise of this member or do we need to also credit the army's interest in doing its best to ensure unit cohesiveness and unit discipline especially when you have overseas deployments you know as a natural part of active duty military service you so i i think it's fair that the military weighed the equities and and chose subjectively but appropriately here to come down on the side of you know sex abuse convictions especially the one here where you have child molestation of a twelve or thirteen year old girl by someone who's thirty three year olds at the time that that was serious enough basically and reconsideration that the army would prefer to administrative leave just charge the soldier clean up its ranks if you will and make sure that soldiers can be ready to be deployed overseas and seventy two at all and if we look at the amended complaint before judge brown we are fifty six to fifty eight there were i believe eight distinct a p a theories and none of them mention section five hundred and seventy two where this public law it kind of problem with that congressional enactment and then we have judge brown relying on mr claiborne's representation that he was not challenging the substance of the army directive yeah that's an s c r t know his brief he says the army incorrectly claims cleburne challenges the substance of the directive and he does not instead he challenges retroactive application of them we also have a problem too along similar lines your honor that mr claiborne had represented to the district court that it was appropriate for the army to quote police the ranks for those who may have had a sexual assault conviction in their past and that representation is that as he are for you know i don't in my look is a someone who was a former army officer and i looked at this very carefully i don't think anybody would doubt or question the seriousness of the conviction in this case and the appropriateness of the army should they have chosen to do so of removing him from service at or around the time that it became their opportunity to do so but but they of course didn't do so and instead they retained him thereby depriving him of an opportunity to build a career somewhere else and  based on his good other otherwise good evaluations let him stay in the service send him off to overseas deployments which i believe included combat and then when he gets back east continues to do well all of his superiors give him good ratings and recommend his retention he gets promoted at least twice in the record and yet the board says well you know he's been swept up in this and it's of for the good order of the service well i think they do have the authority but i can tell you if this was a did novo review which it isn't the board would certainly be in trouble with me  because i mean there is something called fundamental fairness in our law that's the basis of it and one would wonder how you could keep somebody on board for all of these years and encourage them to stay and give the promotions and praise them and send him off to combat and then come back and say you know all these years ago you committed this offense for which we could have sent you packing but we didn't we kept you on but now we're  we've got a blanket policy and away you go that is not to excuse what he did but i think that it just kind of i don't know i have a sense like judge graber does i believe from her comments that it's pretty harsh i  have a related question and that is whether there was any effort made in this case to media through our mediation process attached to the court there was there was that we had or let me just ask it differently because you don't really know that the answer to that are you nobody does when the government be willing to try yeah i wouldn't i wouldn't rule it out to your comments just a minute ago i would you know it just seems so so harsh and you know unfair something that i think to bear in mind is you know i made the point that the regulations don't don't bar the secretary's later exercise of his authority that that's something to also keep in mind here is that the earlier proceedings under under chapter fourteen of the army regulation were undertaken and the orders there were by  lewis commander and i would say that it makes a lot of sense when you're concerned about sex convictions and sex offenders in the military to have a secretary look at those cases and you know that's that's what the what's the  military when was the time to have discharged in my view because this was a serious serious crime would have been at about the time you got may number one dress the comment that the united states presented that this is not a question of the constitution we respectfully disagree and believe that a separation of powers is implicated notice due process ex post facto considerations as well as fundamental fairness and the separation of powers issue we do believe requires a didn't go oh standard of review and here's why if we look at how the statute was vesting in directing the secretary to implement this policy the secretary it upon himself to insert the problematic temporal language regardless of when the conviction occurred in the absence of any specific grant of congressional retroactive application in terms of denotable review the issue really becomes not whether or not we're deferring to a military personnel law decision but instead whether or not article one properly delegated its statutory authority to an article two not elected official who is not accountable to an electorate or to an election who then took it upon himself to do a broad sweeping canvass of the ranks in violation of the presumption of post specht of legislation and making to then destroy this man's family he's a father a married man with a dependent children so with all of those things we can look at the pension benefit guaranty case that we cited in our papers that's an example of where congress did evaluate whether or not to apply a statute and or rules retroactively in the court upheld that retroactive application even subject to process and equal protection concerns because the congress determined illegitimately posed a legitimate government legislative objective there that didn't happen or if the congress were really intended for the secretary to the way broad sweeping canvas of the rings to go back ten years and disrupt it transaction that had been settled favorably to s such that he could soldier on for the next ten years and even contract for a very active duty retirement they would have made that finding and vested in the secretary that authority that's absent here and with respect we believe that the united states has no way around that idea that the united states relies heavily on this being a military personnel law decision with respect it's really not that's part of the equation but the fundamental starting point and ending point we believe in and an offer to the court is whether or not the secretary exceeded course and we see going on to say you know that that's a marxist sees me counsel that that i think that's a point where i have difficulty and i think i may have asked you about that in your opening remarks as well i guess i don't see anything really anywhere her that would have prevented the secretary from changing his mind earlier you know i suppose suppose you know one month after the decision had been made they'd said you know we've looked at it again and we've changed our mind and is it your view that even under the old system everything truly was fixed in stone i could not have been risotto your honor in speaking to fundamental fairness yes the idea is the army regulation applies and the army regulation clearly says that those who have been subject to a traditional or administrative proceeding where the circumstances have resulted in that they should not be separated but retained that applies in the secretary's plenary is they're already saying that you know in ten years from now i could go ahead and separate you at the th hour and fifty nine minutes after your combat service well that to me is secretary of state had unfettered discretion to remove any foreign service officer pursuant to his own discretion however the supreme court said you still have to follow your regulations even though you have a grant of discretion that didn't happen here judge and that's what we submit to the court is the constitutional problem there's the equities of course which are troubling but this is this case rises and falls we submit on the constitutional analysis of whether or not the secretary had the authority to do what he did and in this particular instance when we proposed that he did not so subject your questions your honor we thank you very kindly and that will conclude my remarks thank you counsel a case just argued is submitted and we appreciate the arguments from both of you thank you