all members of cork who are may it please the court i'm here with my client captain nicholas stewart in the gallery this is what i would consider a fairly straightforward application of regulation that the district court got wrong below the what is would help the court i think is a explanation of the timeline where of ever two thousand and fourteen he file he for he forwarded his request again but was pushed back and told he was told it had to have indorsements by his chain of command to move forward that occurred on four november two thousand and fourteen the case was considered by the the assistant secretary of the navy on twelve december two thousand and fourteen and the secretary this is the secretary recommended approval from for reasons that were set forth in his legal advisors recommendation at the appendix forty page forty three he was denied on t n heard the case we fully briefed the case and on one may two thousand and seventeen she remained in the case back to the secretary for consideration of why to explain  design the case rattled on for two years seven months and actually by that three years these secretary spencer made his decision  n his decision none of the requirements of the regulation were complied the basic application was sent back to the marine corps at the point it becomes in the marine cor the regulation states it's in the j page seventy five dollars packages for from the service headquarters for approval will include the members dated individual narrative providing compelling wind or reasoning for approval detailing corps fording endorsement in fact he said nothing about why the case should be or should not be denied or approved and in fact if he chose to deny the regulation allows him that at that point the regulation acquires that the assistant secretary of the navy for manpower and reserve affairs is to consider the application the regulation provides page seventy six dollars of the judge of the  appendix once received a s n m n r a the flight gate waiver request package will be reviewed for content fully and rationale and for the secretary of the navy with a recommendation to approve disapprove or to be returned to the navy  marine corps for further action that was excluded entirely in my client's case the system secretary the lady never considered it never provided a recommendation never provided anything the case was forwarded to the secretary of the navy and on where the case was not actually decided my client's career obviously was damaged the all the people in his chain of command  changed in fact the assistant secretary and the deputy commandant rink or all had changed so there was no way to just explain decision so the secretary the new secretary judge spencer who was later fired for lack of candor by the present the united states has said that remember and in your view they should have gone back to the beginning of the chain of command and rerouted it back to correct and that's that is what is the requirement is for because separation of a package to be considered by the secretary of the navy judge berman said well there's no there's no pork portion of the regulation of talk soup what happens when a remission well if there is no remembers her explanation and that it was within the decision makers discretion to use the original package all of which was positive to your client and complete as far as the information the relevant information and so that in fact i could see a case in which your client was denied and it had gone back down the row and there was an objection to that goes back to three people who don't know me as well have a nd shot and they say less positive things so it's it's i'm not sure what you're pointing to that in the context of a rematch there needs to be a redo of positive recommendations that were already in the record there have been three years of my client service that had been not accounted for that the secretary consider when he considered my client's case and in fact if you actually view page thirty nine of  the the deputy commandant memo actually memo from the secretary to through the assistant secretary of the navy which never received who never received it never acted on it and he didn't hear what was provided to the secretary which is which is consistent with the regulation eighty tab the is it chronological record of captain stewart's assignment history and current on it of his operational flight time was a discussion about the flight recommendation letter secretary to disapproval letter and all court transcripts how the transcripts got put into this that's that's that's a separate issue but there's no indication that my client service record was included in the matters that were provided to the secretary in this memorandum from marine corps so where that happened it's unclear but the the deputy come about stated what he provided and explanation as to the nd one was the secretary of the navy disapproved captain stewart's st waiver request on thirteen february two thousand and fifteen because he was pending two thousand and fifteen because he was pending legal a secretary the secretary it because of abuse of discretion and failure to comply with the regulations so it was provided to the secretary is not included it please the court and did a carousel for the secretary of the navy the regulation here speaks to the initial creation of the package the process was completed this package included endorsements from everyone in the chain of command as asic as it gets doing in the creation of the initial package the regulation doesn't control what the secretary can look at in making that decision are there any procedures or just the same question i asked to appellant are there any procedures pursuant to five c three not that i'm aware of your honor so this regulation secretary's decision says you know it doesn't meet the needs of the service to grant this he hasn't been flying he met the minimum requirement to apply for this by only fifteen days he wasn't flying before the criminal proceeding he hasn't been flying since the criminal proceeding and then the secretary took the extra step of looking at the personnel records to see if anything there he said compel the exercise of discretion  said no because captain stewart had consistently dan the bottom two thirds and had been ranked just performing better than only eighteen percent of his peers or any wasn't recreated the secretary was in the package itself was not updated the secretary has the ability that to look at anything the secretary thinks is relevant to this determination i think it's of the service regulation that i think the initial creation of the package we're only looking at whether there was compliance with this regulation there was a package with endorsements from everybody and captain stewart's chain of command so there was already a go he had the personnel file which has reviews and things that you might get more information from a different system where everybody gets a chance to comment on all developments in the interim but this is a regulation we're looking as complian to this regulation which is about channeling and weeding out requests and limiting what gets to the secretary and is that is consistent with the statute which says you know the nd he doesn't have to grant he is it's his discretion it's for the needs of the service i'm a case by case basis so nothing in either the statute or the regulation requires the creation of the process that is going to pull out every possible positive piece of information of course makes that decision so in terms of the secretary's decision he said it doesn't meet the needs of the service because this is somebody who barely met the minimal requirements even apply that only exceeded that by fifteen days was implying before the criminal conviction didn't return to flying after the criminal conviction and he said i looked in the personnel records to see if anything they are compelled me to exercise my discretion his behalf and there was nothing that compelled that he said right because this was somebody who was consistently in the bottom two thirds and who had been great just performing better than eighteen percent of his peers now in terms of how do you back if you look at i think it's seventy and seventy one it shows that reforms you mean you can see you know over time consistently in the bottom two thirds and then i believe it was one ranking that put him only doing better than eighteen percent so i think the question is given that it's supposed to come through the chain of command and my understanding is that only strong waiver packages even reach the secretary because it's a create condition for getting to the secretary that there be a detailed justification from the navy or marine corps for a recommendation of approval of the waivers or they are all behind the person it doesn't even read to the secretary so i guess the question then is if there is a sense in the service as a whole that the later information is needed the information that's reflected in the personnel records shouldn't that be filtered through those people who can put it into context and say this was one this was you know about times grandfather died or you know whatever and and be able to either next it before it was up to the secretary or put it in context and give approval a recommendation of approval of the waiver and is isn't that what the upper hand is complaining was missing is the is the chain of command evaluation and indorsement or not i do think that's his complaint but what we're looking at is compliance with this regulation which as you pointed out is about channeling and meeting out requests that regulation we went through that process it would be very strange if i remain and the deputy commandant had killed this outright or there had been negative recommendations and had got to the secretary right so i remember it went back to the secretary the secretary this is the what it sounds like you're saying compliance with the regulation is would you will but the ultimate determination of the needs of the service that's committed to agency discretion by law there is you affairs and the assistant secretary of the navy manpower and reserve affairs that's required in the regulation the a s n never saw this on remained in the deputy commandant provided no recommendation somewhat whatsoever so the regulation wasn't complied and those two people for the main manpower and reserve affairs they're the people that tell you what the service requires what's what's good for the marine corps the comm the st two pages of my reply brief this case has been so uniquely blown by the marine corps in the navy over and over and over if you look at page thirty nine thirty five secretary literally those explanation all the things that he had to fix to put my client back to to some semblance of career thank you many time