churches i reserve the two minutes for a bottle on the up police here after the navy has greatly simplified this case felling to respond to two of the major issues that the chaplains raise place i want to emphasize that the boards at the we're talking about are composed mostly of chaplains with the exception of one line officer that procedure changed in fiscal year two thousand and three after we filed challenging the stacking of borage by nominations and favorable or hostile historically to my clients and the practice of always having a catholic chaplain on every board for fifty four years with the power to destroy the career of any chaplain for any reason at all the st conceded issue is the fusion of civic and denominational responsibilities or in power that results from the commissioning of  issue by restricting chaplains to only religious issues on the only two ministry they cannot perform the duty of any other officer and the question has amassed but not answered why are they and if they restrict chaplains to from the duties performed by every other officer do they allow the a chaplain to destroy the career of any other chaplain anonymously and without accountability what is the record evidence of the destruction of careers your point about it for another point you were making your note of that somebody who had been passed over in the navy was hired by destroys the chaplain's career no record is kept of who does that clients my clients were participated he testified that that he as the chief of chaplains would influence other people because of his rank in the fact that he's the chief he controls the careers of everybody on that of the board as a from a nazi and herself as a conservative that's correct i'm not sure of the relevance of that the tell me this what about the black affidavit that's a that was just hearsay right is is four hundred dollars so it's obviously something is wrong and he called us and he said you call the attention he has said this is a problem in the navy was going to the navy chief of personnel washburn said she'd been on for at least the board he had to go above his own to get to catholics because nobody was oats there and the investigator for the navy looked at those records and said there's something wrong here because he just catholics have turmel records and told to be admitted that a per a chaplain was a perfect record was not selected because of quote the needs of the navy so there's no need in the end of precept for say we need catholics priests i think i think you're telling us about something it was just that we decided already some years ago you're on i'm not sure i understand over case you know under the law the case is determined by larken and gromit grommets says when the power is delegated to an individual specifically on the basis of allow this this chaplain to exercise the sovereign power in any other issue in any other aspect why do you allow him di is this the evidence shows his straw is the chaplain's career that's the exercise of standing for associated gospel churches if we were to affirm the district court on the substance would that require us to still reach the standing issues number of applicants that were considered and for you to see on there is those conservative churches like a g say are are below sixty six percent and if you assume because we're talking about people who meet all the qualifications they've that's the minimum mark and so if you would soon that there isn't domination doesn't play effect or have an effect then the acceptance or rejection rates would be about the same they're  faith requires it and so the answer is yes when you're trying to do is make sure that chaplains don't influence the decision based on theological purposes what are those claims for a g c different from the claims for the other parties they got if they have any what are their unique claims that would would require us to consider their claim separately or are there any distinct claims you know the distinct claims to deal with the a session process  even if we were to agree with you hypothetically that a g c has demonstrated standing there be no reason to reach that conclusion if the merits of their claims are already resolved by the claims brought by other people as to whom the district or did find that there was standing and so they're there to have to be a reason to find that agency as standing and it sounds like what you're saying is there is a reason to find that they have standing because there's a category of claims via session claims that haven't been resolved yet on the merits if that's what we're all opportunity based on secular objective reasons why for a chaplain to be commissioned we're not asking any of these things we're not asking for some new special we're asking for the same process none of the any other services have these issues and so the issue is why is this navy different and yes you is because they allow chaplains the nomination operation to make make choices and decisions that affect other careers they did not delegate they did not address the fusion that results from the commissioning of a clergy person with the power as is demonstrated by this stuff you missed this this is your rolling out they didn't exist didn't examine they did were not already decided the answer is no they were asserting the same systemic claims that the plant the other plaintiffs asserted they were part of the original gibson class which filed suit in two thousand and six  they were at the beginning some issues about accession that's kind of dropped out during the course of this lengthy lengthy litigation my understanding is that the i don't want to put words in their place now so that my understanding was that the claim was that accessions were allegedly took place according to the nav l and illegal quota system that was the allegation but even if a and even if that allegation were true and we maintain that it is not there is no question that since the early to thousands the navy chaplain corps has accessed chaplains into the chaplain corps on purely on the basis of merit qualifications without regard to religious affiliation and there are no chorus and there are not even any expression of goals at this point as far as i understand but that sounds like that that sounds like that's your merits response which may may well be persuasive  sounds like what you're saying is if we had to go to the merits i make such an claims here would be our response and it's and it's full proof and as i understand what happened and correct me if i'm wrong is a long history here and there may well have been things and the record that we're not completely processing but as i understand what happens there were accession claims made at the outset by a g c and i think by individuals but at least by agency and then those claims were dismissed based on a lack of standing and then they never saw the light of day in terms of resolution of the merits and if that's true and if again just hypothetically if we were to conclude that the route that the determination that agency lacked standing was erroneous then there would be some claims that agency had that have not yet been resolved on the merits well your honor the response is that the this alleged policy ended before a t c filed suit and they are only asking for a change in the navy practices so you can't get standing based on practice is that were in effect when you final suit there's that is why the district court when it was looking at whether agencies core mission was at loggerheads with what navies policy was for excessive individuals into the chaplain corps but weren't there when there were no accession claims that went past two thousand no you know if they were talking about an alleged policy of this this alleged quota system and there really there is no just since the early two thousand the navy has followed this exception policy without regard to its religious affiliation fact even the process is somewhat different from the promotion and selection selection process the applications go to have standing would you be opposed to allowing the district court to sort out what exactly went on with the claims in terms of whether there's claims that were raised at the outset that survive because they were never resolved on the merits because it seems like a least there's some confusion as to what exactly was raised by whom and when and what exactly was resolved and which opinion would that be something that the government would oppose your honor we would urge this court to decide this case while it is on appeal it has gone on for over twenty years and when your honor references claims made at the outset there have been four different district court judges that have considered this case i completely understand that this case has gone on for a long time and it's gone through many judges that's absolutely true but there's also a statute of limitations issue and everybody agrees now that the statute limits was applied incorrectly and then there's an equitable tolling question and yes it's in theory the court of appeals could resolve that acquittal toing question it's also quite commensurate what courts of appeals normally do in those situations to remain to allow that to be sorted out and the district court and if that were going to happen then it's going back regrettably i understand your perspective on instance because and it is appropriate for the court this is one of the situations where it is appropriate entirely appropriate for the court to decide that question in its discretion because the case has gone on for more than twenty years and we're talking about the particular claims that the plaintiffs want to revive are not simply stay home they date back to the seventy's and eighty's so that when the st of these in the district court at least twice the also it's appropriate to decide that question if the answer is clear and answer on equable totaling based on fraudulent concealment is clear do you think it would be inappropriate for us to remount is that the government's take your honor it is a question of this court's discretion so it is not inappropriate but we would simply urge this court to bring these serious financial support from his chaplain's rejection results in a loss of agencies resources and cetera is there are over is there a money claim for the for the lost jews as a were facts with regard to in terms of the audience and saw your honor they had seven years to do that if it's not in the record now there's nothing additional to come out nine thousand pages of documents twenty odd depositions taken by the plaintiffs if they don't have evidence of fraudulent concealment now they are not going to be able to get it and let's look at what they say constituted fraudulent concealment by the government they say that is the hierarchical nature of the military the fact that selections were proceedings can't be disclosed the fact that personnel files of other people have for promotion are protected by privacy act also there's an allegation that unspecified members of the chaplain cor leadership told plaintiffs that the proceedings were merit based and not discriminatory and none of that rises a level fraudulent concealment it is simply not and thirteen a is an absolute statutory privilege the secretary can waive it in certain circumstances like as it does as he does for instance when there are investigations but not for civil discovery in fact it's a pretty clear prohibition against that kind of the fishing expedition that civil discovery turns into or the civil discovery aspect of this also as a prohibition knowledge and about the fraudulent fraudulent consume in general the notion that the chaplain corps was able to conceal this evidence of wrongdoing is implausible in light of the which is in the record that the individual individual plaintiffs when they were up for promotion the information who else was up for promotion who was on the selection board who was chosen was all not all that was on him that was publicly available information it was disclosed around the time of the selection proceedings and obviously the players themselves knew that they were not selected at the same time  it's a fairly small community the chaplain corps at its peak it was less than one hundred dollars people people sir to gather they know what other people's reputations are they know if there is a chaplain who  very highly by his peers if there's a chaplain who's superior officer talks him up and they talk to each other and that's what the consolidated complaint makes clear the notion that under those circumstances the navy could have concealed this evidence of wrongdoing it just isn't possible and the court doesn't need to remand to the district court to see that i want to make sure that i dress any questions the court might have about finality because the court did ask us to address that and often that reflects a concern by a court that there was some type of  arrangement or agreement between the parties to create appellate jurisdiction i want to assure the the panel that that was not the case here i see i am almost out of time and really brief the issues in this case i want to make sure that i don't leave leave you with any questions and it is very easy to get confused in this case of for instance my posing counsel referred to  standards for excesses and that includes some that some particular standards like leadership that are not relevant to accession that are in fact part of the promotion process so there are many things like that that it's very easy to get correct today may be changed tomorrow and and then then we go back to the way it was we're looking for protections to make sure that the nomination doesn't become a issue a make effective guarantees is the term the tolling issue because it seems in your reply brief that you're suggesting we could or it would be appropriate or or fine for us to decide that issue in the st instance are you still maintaining that you think  that and when you get to self concealing there's has to be widely known i don't want to go through all of the things that's just not here they can't show it they think have not presented evidence of any senior chaplain anybody there at the time that said oh yes i remember wilkins i remember well we had training on that it's not there and if that were widely known there'd be all kinds of people that they could come and say hey here it is which they should were aware there's nothing here and so the idea that somehow they perceive