case where the president reached out and actually pulled out an advisor its name off the list and lewis she became an eligible for promotion as a matter of law that's not the case here and as we explore you know ten twenty four six ten u six twenty four de force and the appointments clause it's certainly not inconsistent even in the normal appointment the president does not actually make the appoint or the nomination it goes is delegated that down to the secretary  defense other cases for example of that appeal promotion or temporary promotion under in time of war national emergency under ten u s c six zero three he's delegated that down to the secretary of defense by executive order in contrast good point that actually is not correct the deception was not directed at the deception with regard to the retirement decision his deception as we know in a criminal manner clearly say you're still on the left and you're still under consideration it does but he did submit the information as requested once he was told not to do a second time and then he gets the fitness commanding officers recommendation for promotion i think you could be from but the other problem your honour's is even if that promotion was not voluntary he had the timing great to have been promoted  as the only needed six months for his promotion date which was one february but that mr wells sweet we have a lot of case law that says just because you are presented with the savory options that doesn't negate the volunt be well meaning that can in this particular case carve an exception and there are as i would also state or submit respectfully to that if there is a case where the exception should be carved it's certainly this case i mean the man's wife is getting ready to leave him she's saying hey d n a doesn't lie he's trying to save the marriage he's he's in memphis she's in atlanta everybody's telling him and he knows that his career is over because you know i mean certainly we would have provided some input and given the situation at that particular time whether the senate would have confirmed him or not i don't know i mean to be frank would probably be highly unlikely but had it again not been for mr mills false cations evidence we've never been in this situation judge who time house one of our best and brightest who was a broom to be the executive assistant secretary to the surgeon general  the president actually did that move the name that didn't happen here now maybe that if the if they follow the rules that should have them are removed because in this situation there has been no confirmation for example but six twenty forty one before doesn't in this case is about the choices that mr have had at the time of his retirement not about mr mills bad act not about the court martial conviction that no longer exists the question before the court now is whether the trial court erred when i within a competitive category on a single list for that competitive category to be known as the promotion or so looking at the whole statute it appears that when they talk about the appointments next that's referring to the promotion lead which is the list that's already been confirmed but even assuming that six twenty four does apply this promotion was all he was selected in he was selected was no your honor it wasn't stricken with the secretary of the navy was described situation here no because it really runs into the placement clause which is the problem and a certain limit which is that the trial court has no authority to appoint an officer who has never been nominated confirmed nor as of his retirement in other words he was not being forced out by the navy at that point if there is deception by a government official that negates the voluntariness why  deception sufficient to satisfy the well looking at a test like carmichael so we could well can see that there could be a course of act on the part of government but even in carmichael on that the last time the government so even if we can see that there are course of acts on the part of the government there's still the alternative and here the alternative would have been for at least ten house to say in the navy and to wait for his promotion be speaking the high regard that the entire service community had for him and his service saying that this was an exemplary officer and all of that was interrupted by something that was deception by a government official why don't we recognize that as negating the as setting in course the chain of events that to interrupted this remarkable career it did interrupt it but the point is it didn't leave mr howe quit without any alternatives any idea a lot of the kids some of the key issues that that are cited to three he wasn't facing any in that action forcing him out so we don't know what would have happened to return it how it would be completely different if he had not been retained by the board of inquiry then and we can say for sure that his leaving or his retirement was caused by this court martial conviction but here i mean there are several fact that show that lieutenant house was in fact recovering from that meanly if you look at pages one thousand two to one thousand three of the records the ten commander house right that chief of naval personnel and request is promotion he received nine letters of recommendation seven letters of recommendation from his supervisors who all still continued to support his promotion on page one thousand of the record one thousand to one thousand one we've included the full fitness report in black eight under promotion sadducees actually still listed as selected he is not them different meaning that it was not likely he would have been let more or less likely he would have been promoted was he told to was he told to them that his delay a delay because under ten u s c six eighteen the secretary of the navy has responsibility to include any adverse information for the secretary of defense to consider at the time where the secretary of defense actually nominates the person up for the officer position so here is the secretary of the navy or mr house that he was considering all the adverse information and at that time there was still other proceeding going on  namely at first when he wrote in august two thousand and two the convening authority had not yet acted upon mr house's conviction and sentence and then later her house was issued to show cause notice to show cause for his detention inquiry so all of that information be relevant to the information that the secretary of the navy needed to include to send on to the secretary of defense no one was to be mrs mills to miss mills to see  happens and goes this is as you can see that with the under smith versus secretary of the army that would be the relief but that the palm here is also that mr house never requested that relief mr pouts requested  promotion we raised this issue for the trial court that the proper appropriate remedy is reinstatement at the grade which was previously served and mr house has never for middle east sought that relief to be put back in the process you to consider and i think perhaps you touched on is the futility of having him state in and at what point should he be required to continue to pursue something it's futile now the government mentioned that his fitness secondly and an undated letter came out sometime in two thousand and two how long do you have to wait especially after you have a sin record with no no promotion recommendation it becomes almost  issues coming up which are not part of the matter before this court with might have been cured by an eight by an earlier notification for three years that was kept secret from us and the only reason we got it is because i sent a demand letter to the u s army crime lab then there's what what can we do when we can't he's already getting a pay grade at the at the time right judge there would be about eight months back pay the difference between he's not asking for a lot and given what he's been through i don't think he's asking for anything on reasonable given the application ten years see six hundred forty four and also you know congress is right to raise an army navy and the president's acquiesce