on multiple occasions his qualifications are so good that it shocks the conscience that he could possibly have been turned down for paid villagers in the reserve never to his drilling without pay naval reserve of these procedures procedures were presented to the court of federal claims in this precept the latter which indicated that the that the two naval reserve had to follow certain procedures and fail there were reasonably elaborate among other things that have to establish a confidence factor for each applicant for a pain bill and they have to essentially score these people in order but under your one we have this three step letter we have a situation is very shocking we have every reason frankly to believe that he was never being scored we know it but when you say you have every reason to believe he wasn't being scored what you really saying it seems to me correct me if this is not a fair characterization is that that he had such a strong case that it cannot be the case that the procedures were followed and therefore there was a procedural defect in the process essentially your argument that what you're saying is correct however actually what we'd like to do is be able to try the case discovery find out what really happened because what we have reason to believe goes beyond that is that was called up so much for active duty at the reserves considered him to be not one of them and that's why this was going on that's really why he brought this he feels it's so wrong and he wants to  figure out what it is they really did and we really do believe they didn't score him and it's impossible to believe that if they actually were scoring him and he really would have been turned down for these i mean his record is so good if each if it just sort of shocks the conscience i don't you know normally i would say this kind of thing is hopeless because of the case but i mean in this case is really goes an awfully long way and the problem is that the court of claims was essentially pre passages that i was looking at when i characterized your argument as to being he was so good that they must have made a procedural error and again doesn't that just walk us right down the path that judge dyke was referring to earlier saying that any time i think i should have been promoted and wasn't that there's must have been a procedural error and then read to that decision no i don't think so i think it's why not how do you how do you use your case apart from all of those other cases other than to say well in your case he was exceptionally well qualified as opposed to the other cases in which the people could do no more than to say that they were quite well qualified of that that play itself is a major distinction well do you have any other distinction that the guy i think you see in the next person up in your position is not going to concede that the less qualified than your client and i'm not sure they guy don't think they're going to be able to lay our eyes let me the other basis for saying that there has to be a procedural problem the problem is we're dealing with an organization that operates behind closed doors we can't know without getting into discovery without getting into trial we can't know the answer to that it did what's different in part about our situation is in this case  have a basis for making an allegation you know a fairly firm basis and i think it's the case and i'm willing to bet it's a case but i don't i can't point to anything until i can get into a trial or discovery that  so leads me into something of a catch twenty two which i guess most people in this type of situation and catch twenty two but it does this shouldn't be tolerated in this situation this is outrageous to the point where it's sort of shocks the conscience the and how would you craft a rule that would distinguish your case from the next case that i allude to in which someone comes in and says i must not have been scored or at least that must not have been scored i mean we look at a record isn't somebody that has a lot of what look like accomplishments but i'm not seeing everything that the military is seeing and certainly not seeing it through the eyes of the military so i'm having a hard time seeing how we would make both the determination that action is better than y and also where the connaught is for making a kind of presume to procedural error conclusion that's that's my difficulty and i mean part of what's going on if you look at their precept letter you supposed to give special consideration to people who are really actually participating in the global war on terrorism this is somebody who keeps getting called up an active duty and sent to the middle east i think that went through the i g exactly yeah that that's important what you're asking and he was successful in the first the first time around with the i g as i correct that related to i selection earlier on where the department of defense i g basically found that he had not had not been for fully considered and this go around we kept the case out of the courts for a long time because what we wanted to do we not to go to the court system the i g won't do anything it's forced him to go into the courts and still want doing i mean i preserve it in my data myself trying to contact and try to speak to people on whatever higher up is running it they're not going to do it we have to this day here is they certainly every reason to believe they're not going to look into it so that's a problem and yes that type of time was a matter to go before the  claims to the only other means available to them i mean he didn't lose a bunch of money if he'd been paid for this he would have we figured sixty four thousand seven hundred  dollars i mean what you've got here you've got procedures that are essentially like a filter you know that it's supposed to prevent certain things from happening and somehow the boulder here in this case came through the filter it's really frankly a travesty unfortunately what the imply board did here it's blatantly and obviously wrong and frankly there really is obviously a procedural problem it's really impossible to believe that the apply boards follow the required procedures i don't suppose that there had been scoring but and suppose further that you actually knew what the scores were but you thought that the scores were unduly low for him to the extent that there were scores that were subject to judgement calls do you think that would be the basis for  claims relates to the procedures and that's have procedures as merits so he can't go there i mean we don't believe they follow the procedures that's what we're doing i mean we find it all very shocking  satisfaction titling overlays this type of matter is reviewed by this court to know to produce it's a pretty strong standard and we think we have we believe we have alleged the fact vision to support his claim and it certainly does complaint challenges the decision of the commander navy reserve force to assign him to an unpaid billet or job assignment instead of a paid elected reserve captain anthony else claims that his performance record collocation and was not selected for reserve pay about what the navy must have violated its own rules by failing to adequately consider his record he requests the court to interfere with military assignment decisions that are by law agree procedural you can self imposed procedural record correct your honor and the question then becomes has he had the appropriate procedure applied to his request and if he is has no access to the information as to whether he had that correct procedure applied how does he get access  or incorrectly looked at his record because simply because he was not chosen for his or papal it he listed three factors that the board had to apply and looking at applicants he doesn't say the board didn't do those things he simply says because he was so well qualified it must have substantively made an error in not determining that he was the best qualified that is an argument on the merits that i not a procedure allegation violation allegation he doesn't say that the board didn't look at his record as well as the other applicants records he doesn't say that the board didn't rank the applicants or give them a confidence factor comply with the procedures because specific procedures include the scoring because otherwise they could not reach the conclusion to reach and that's my basis for believing that i mean titled at least a discovery on that the court still and the palmer cases in king cases the military in both those cases conceded a mistake in the assignment of the plaintiff and still the court could not grant relief those cases were were these are you saying and i thought we had agreed right the beginning that if it were a procedural defect that he would be entitled to judicial relief are you seeing not he might be entitled to do just a review of whether sure as to work followed but he still cannot receive the relief that he seeks which is money for a position that he was not assigned to and he should be over in the district court and  and those cases and king the plaintiff was assigned to a noncompetitive ballots that made it so he could not get a promotion in the  the military mistakenly believed that there was a three term limit three year term limit for for his position and there was not he was assigned to an unpaid balance and justice cases they were perceived your own mistakes but this court still held to this issue and just ike's question is the same as mine which is are you saying that it is not your position that notwithstanding that there might be an allegation of a specific explicit procedural er that there's no basis for judicial relief from the court of federal claims or this court or for that matter the district court in a p a action that is correct or honor so even if he was told you know what we do not we don't like you and we are not going to score you that that is just too bad your honor your position that sort of procedural violation could be reviewed by the  and i thought that was exactly the question that was certainly the question i intended to ask maybe i wasn't as clear as i needed to be but are you the question i asked earlier was are you saying procedural and yes that is our position but then you said that there are certain kinds of procedures that might not be within that the aegis of that rule what what is your position exactly with respect to procedural problems procedural violations power to grant you relief is what you're saying because then why do we have if we can fret relief why do we have an appropriate case before us your honor it depends on the instance with the military because i'm confused about because i do not understand exactly what the government's position is with respect to procedural violations are you saying that the court which is what i thought you just said that the court can look at procedural violations can even declare that there has been a procedural violation but then cannot award any kind of remedy against the military for those violations is that the government's position your honor again it depends on the type of procedural violation the court cannot make duty assignments for the military it cannot do that or t nation or fit determinations for the military if we need to remember that you would if you're sitting at the court of federal claims judge and you see a clear procedural violation let's say to take the example earlier given the military says you know what you're right we didn't score we didn't we just decided we didn't care pharma and we left him out of the scoring l to if someone has been in a position that entitles him or her to that is a floor that would prevent us granting relief and such as by face what's the legal b an individual must be assigned or in a position that here she seeks pay for and otherwise the court can award relief of that pain and not only that this card has consistently held that a military member the military decides who receives what assignments and this court is not equipped to make those decisions to look and we've also said that procedural violations can be reviewed that they're just additional what belief is a warden in this case additional pay that the plaintiff thought because there were errors in calculating it the plaintiff did receive additional pay but the military's decision to terminate her special additional pay was not that case yes it depends on the circumstances here she was in a position she was entitled special additional pay that had been awarded to her the special additional pay was incorrectly calculated so yes that was a procedural violation that the court couldn't work relief for however it must be distinguished from her claim to continue to receive special additional pay in those ok the military had terminated her pay and that was not non justiciable so it depends on the decision it's not just across the board because there's been a procedural error somebody gets relief here in this case is a reassignment  and assignment cases it is completely within the military's discretion to determine which military member receives an assignment that that does not mean that the relief that plan of seeks and his complaint is a claim upon which relief can be granted it does not mean that he can receive the relief that he seeks there are two different procedur and that's why we're here today so the relief that he could get would be an opinion of the court of federal claims saying that the military made a procedural errors but at the end the court would th conceded mistake clearing out right and i would point out to the court that the court can send the case back to the court of claims on a very limited basis the instructions simply to look to see whether he was scored look to see whether they actually scored the applicants look to see whether they were improper consideration of outside of indians or of you know where people were they were to get a personal opinions expressed outside of the record at the official record that was submitted to the apply boards and i think probably that's what should have been i say absolutely not my understanding that the court of claims can ward back relief when the claim is for a bill that was not occupied absolutely i take care of we're not bad basically your damages when you're not given the position when you're actually  actually working then it is night it doesn't ever pay the bill but you should read up a bill that and he should have been paid for it so the idea is he is doing work which is indistinguishable from the work he would be doing if he had gotten a paid bill