argument wouldn't it mean that a branch of the military could never take sort of a manpower reduction operation assuming it carefully looked into it if it was later developed if it later developed that in fact to a greater or lesser extent the action of an unnecessary i mean is that what you're suggesting here if we accepted really going to handcuff the military and being able to procedural regulations or violates minimum concepts what you would say is that you would say that the first point that you quoted statutory authority is what kicks in here on this particular argument about the manpower needs changing the other points in the statute seem to be procedural arguments relating to how the your be in the separation or affected procedure regulation and we get in minimum concepts of basic fairness they were notified that's fair just because they were notified that's not true and well i think the response would be that in the circumstances of this particular administrative process that was adequate there are instances where when you have a removal from the military for example where there's a quota stigma attached to  it and so forth then different procedural requirements kick in you're absolutely right your honor and i'm glad you stated that but this case does not evolve in that prescribe scenario process might have been rooms it's of no consequence that they're wrong it's erroneous and then she states well that's a reference to the i guess you were miscalculation these have the what the manpower needs work correct all the errors that i mean had to put it is not i don't think the judge there is referring to errors in the process that unfolded in her view you would disagree with that i think that was a reference to the fact that it turned out they didn't perhaps need to separate as many service personnel say did but it goes on your honor she goes on to state quote the predicted success of the e r be to address over many issues was a rational speculation now i asked the question if it's based on fiction nonfat and they're all wrong why is that quote before she stepped into a judicial chair she didn't recuse herself and the test was not whether or not she was impartial or how she felt about the test is whether or not there is an appearance of impropriety by the public or by society and it definitely is i present a scenario let's suppose that she took disk cases one month after she had quit while he worked for the navy and she worked for d o j for a number of years so sh home shows not comport sheltie but it has an appearance of impropriety if you take her and then as a lawyer if you had a particular client that you had a lot of representations for you become the judge are you permanently barred can't if you've represented somebody you can't be the judge for their kids are over this isn't gravel running an individual it's representing an entity yes that's rick sitting naked well i'll ask you this question let's suppose she got off the t v represented them and the here stems only from her judge bush's prior association or employment with the navy rather than her prior employment with d o j correct or the other thing is it was sixteen or seventeen years ago sixteen years ago i don't know the answer to that maybe it can expire and maybe it can't but my state can expire but here maybe so i don't know the interview that  furnace is what i'm going to talk about because what the navy took out of this these people just went under sixteen were people that would have been able to retire in what's called temporary retirement authorization had they finished their tour of duty they didn't take out people that were early sailors they took out people that some last a month being able to retire contemporary early retirement they discharged all ligned with respect to the establishment a loss of any right so it's not we don't we don't sit here and and way how close to how distant we are from a line it's a lawful or it's not ok i agree and it violates minimum concepts of basic fairness according to case little more and the concept of basic fairness is here that they're on the doorstep of retirement some of the month and retire they wipe out these people and this is allowed to stand or place this loud stand from now on the navy can ignore career sailors they can fire anybody like they used to in the forty's and fifty's and surveil all the day before they retire so you don't get retirement you don't have to say well because we got a right to this charges under prescription but sectarian a b that should not stand and this case would give them  but in this case the record i think it's quite clear in march of two thousand and eleven the secretary of the navy determined that a difficult decision that they had to rebalance the force to meet current and strengths requirements as well as the fact that they need to reshape the force  navy under eleven sixty nine the only requirement statutorily that i'm aware of is to provide notice to the undersecretary of defense in this case they notified the dept of deputy secretary defense primarily about one level in the future we're going to selectively target those within an enlisted production board and then he also told the secretary that i plan to carry out the sport notifying all sailors in november through a navy admin message as well as through the public affairs channels and then after that we're going to conduct a board to face the appellants are three hundred of the twenty nine thousand scuse me as i went to a two thousand nine hundred forty six numbers that were separated they were separated after notice  navy provided extra notices as well as throughout the process of the current review of the quotas in place to ensure that the reduction was as limited as possible and specifically targeted they also east some regulations regarding conversion of the into certain other specialties and a hundred twenty five sailors who were selected for separation were able to convert as well as they  meant to use and strength requirements i was talking about the mandates that congress said that the force couldn't exceed a certain level in this case by by end of the fiscal year right which is why i believe that the mandated release date was of a difference though between balancing the force at the senior n c o level the five the sixty seven level and the drawdown and being under strength of eight thousand and as admiral ben buspar explains the vivian been drawing down since the mid ninety's after the first gulf war where it was going from five hundred eighty thousand sailors to what they projected in two thousand and fourteen to be three hundred fourteen thousand sailors in two thousand and twelve it also they knew that they were also overspent but they specifically were only specifically concerned of those thirty one ratings that were in a hundred three percent strength so therefore to ensure that there was an upward mobility for those junior sailors they had to call the force of those certain certain ratings and it certainly and that's what they did but the fact that they might have been under strength by eight thousand does not mean that the balancing and those certain ratings were improper it's not comparing apples to apples as far as you would have  cut off of them getting close to achieving xenophon's if i was one of those veterans i i would believe that was unfair as well but the secretary has to make those hard calls and in the volunteer force to because the the navy thought that they had to do this and they tried to figure out a way to do this in the smartest way without affecting the least number of veterans and so they provided things like notice they provided an ability to convert it provided in some cases they enacted the temporarily early retirement which is discretionary discretionary action for the navy they provided certain separation transfer benefit programs to the sailors and he said the right to converse w someone who was going to be discharged could say wait a minute i choose to go into this other specially or could that choice only be made or could that request only be made start of the e r v process my understanding of the process run or it had to be made at the start of the process there are only certain ratings that they can go convert into and just because you apply for conversion did not mean that in fact you'd be allowed to understand certain ratings require obviously years of schooling that they just couldn't do now your argument about just disability if you are correct our ability to reach the issues we're discussing now is that right sailors if that an absolute meaning suppose that the secretary issued an edict that just was absolutely clear we're going to terminate anyone two weeks from retirement  at for preparing for this argument i don't know if there's a bright line test but i do know that it appears that it's from actually thinks artists and some very good language how it talks about the process of actually like you look at the issue being challenged and then you look at has it been at least in the military concept context has the constitution spoken to any specific power for instance in this case congress has the authority to regulate and provide the navies  but if you look at the supreme court case of roster be called for gilligan the morgan even though they all are dismissed saying we can't review that because it's not just fishable that conclusion is reached essentially after they've reviewed the programs and determined that we've gone up as far as we can and now we're at a place where there's no test for standards to apply and therefore this is as far as the you know for separation of powers so you would say mr bill that the and picking up on their choice question you would say that defective you would say those those points that he makes although you disagree with them are not barred by a lack of just disability i would agree with that you're ok and i think i believe i understand the contours secretary you can separate people prior to the term of their list when expiring under programs that you deem necessary the notification procedures that felons argue were appropriate are not required under but as time passed we realize that you know the temporal issue so i would agree with mr keller if the facts were one month after leaving the navy judge bush took the case there would be an objective person looking in from the outside would say this is something that there could be an impropriety in an inappropriate reason for her to sit on the bench but not here seventeen over seventeen years since of her job in the navy and so in this case and i don't know indication that represented the united states three the judge judge bush might still know someone who works in the navy at a senior level and for there is a possible federal pension benefit that could be affected and as the judge specifically stated there was no the term and that an objective person looking at that would say that a judge who takes an oath of office uphold the law just like all other officers do would not be find that she was in any way biased towards the navy or the night it states and i also believe the the reading of the opinion shows that the judge went out of her way to parse through plaintiff's complaint and parse through paper planes papers to try to make sure that every issue that these veterans race was following and thoroughly so if anything we don't believe there is any bias on the part of judge bush and if anything she went that extra mile to make sure that these veterans had their day in court and that the services made sure that every right that they would do was given to them subject to give credit to vice admiral uske he stood up in this simper three months after they were discharged and said we overshot he had made it the navy made a mistake they were wrong the navy has made it they were wrong can't that be given a chance to time for the people that admit don't admit they're wrong is only their lawyers and maybe have admitted that they made a mistake and they should be have