[00:00:00] Speaker 00: Case number 25-1513, Ernest F. Mitchell, Lieutenant at Balance, versus John Phelan, Honorable, in his official capacity as the Secretary of the Navy. [00:00:11] Speaker 00: Mr. Thayer, for the Excellence, Mr. Walker, for the Appellee. [00:00:14] Speaker 03: Chief Judge, your honors may please the court. [00:00:16] Speaker 03: My name is Dylan Thayer. [00:00:17] Speaker 03: I am here on behalf of the appellant, Lieutenant Ernest F. Mitchell. [00:00:21] Speaker 03: Today, Lieutenant Mitchell presents two errors on appeal. [00:00:25] Speaker 03: First, the DCNR erred in determining that Lieutenant Mitchell was not promoted by operation of law under 10 USC 624 D5. [00:00:34] Speaker 03: That statute states, quote, the appointment of an officer may not be delayed for more than 18 months beyond the date on which the officer would have otherwise been appointed. [00:00:46] Speaker 03: Lieutenant Mitchell's promotion to Lieutenant Commander was originally scheduled for August 1st, 2020. [00:00:52] Speaker 03: Lieutenant Mitchell was removed from the promotion list by the secretary in April of 2022. [00:00:57] Speaker 03: That is a delay of 20 months. [00:01:00] Speaker 03: That violates the express command of the statute. [00:01:03] Speaker 03: Now, the secretary stated in his brief that automatic promotion by operation of law is not provided in the statute on its face, and that's true. [00:01:12] Speaker 03: But Congress has left us a trail of red crumbs to follow to indicate that promotion by operation of law is in fact Congress's intent in this circumstance. [00:01:22] Speaker 03: First, reading 10 USC 624 D5 out of the statute would clearly violate the rule against surplusage. [00:01:29] Speaker 03: Second, Congress has legalized appointment by operation of law for senior officers before. [00:01:36] Speaker 03: Second, 10 USC 629 C1 and C4 provides for automatic removal only if [00:01:44] Speaker 03: the officer has failed to secure Senate confirmation. [00:01:48] Speaker 03: Here, Lieutenant Mitchell was nominated by the president, he was confirmed by the Senate, and then a public act took place, the tolling of the 18-month period under 10 USC 624 D5. [00:02:01] Speaker 03: 10 USC 624 D4A makes no sense if officers are not promoted by operation of law. [00:02:08] Speaker 03: That provision of the statute requires written notice, quote, unless it is impracticable to give such written notice before the effective date of the appointment, in which case written notice shall be given as soon as practicable. [00:02:23] Speaker 03: If officers are not promoted by the effective date of the appointment by operation of the statute, [00:02:29] Speaker 03: That makes no sense. [00:02:30] Speaker 03: There's no danger to be averted there. [00:02:32] Speaker 03: If, however, officers are in fact promoted by operation of the statute, then there's a concern that notice might not be able to be passed to the officer in time before the promotion takes place. [00:02:42] Speaker 01: You're talking about notice of? [00:02:44] Speaker 03: Notice of adverse information that's been discovered against the officer during the promotion process. [00:02:51] Speaker 03: Now, reviewing the statute, the court enroll later the United States in 1999 for the Federal Circuit expressed deep concern that not only could a high level official like the secretary delay the appointment for longer than 18 months, but that a relatively lowly person in the military hierarchy could delay the appointment longer than the statutory period. [00:03:15] Speaker 03: It strains credulity, Your Honor, is to think that Congress cannot regulate the manner in which the appointment power can take place, but that a relatively low member of a military service branch can. [00:03:29] Speaker 03: And the Rollator Court was extremely concerned about that very circumstance. [00:03:33] Speaker 03: And reviewing the service branch's interpretation of the statute and reviewing other materials, it concluded [00:03:41] Speaker 03: that absent promotion absent presidential action within 18 months promotion is automatic. [00:03:48] Speaker 03: Now the dicert and lewis courts in 2004 and 2006 came back and overturned that a few years later but there was no change in the statutory language your honors and in fact the lewis and dicert courts conceded [00:04:02] Speaker 03: that the president's power to appoint under the Constitution can in fact be regulated by Congress. [00:04:08] Speaker 03: While Congress cannot tell the president to exercise his appointment power, Congress may nonetheless regulate the use of the appointment power. [00:04:17] Speaker 03: So the Lewis and Dysart courts were correct about that, but they made a category error in finding that this was a requirement to exercise the appointment power, not a regulation of the appointment power. [00:04:30] Speaker 03: It's well established under the law that presidential inaction can nonetheless be action with a force of law. [00:04:36] Speaker 03: We see that in the Constitution with pocket vetoes. [00:04:39] Speaker 03: We see that in 50 USC 622D concerning the lapsing of a national emergency. [00:04:46] Speaker 03: Congress pursuant to its power to make rules and regulations for the governing of the land and naval forces may regulate the president's appointment power in the military sphere. [00:04:58] Speaker 03: as the Supreme Court has said. [00:05:00] Speaker 02: What if Congress passed a law that said the president will nominate, recognizes the president will nominate, it recognizes that the Senate will confirm, and it says the president's appointment after confirmation will happen five seconds after confirmation? [00:05:21] Speaker 02: And whether to appoint someone after confirmation? [00:05:25] Speaker 03: Yes, your honor, I think that that would be constitutional. [00:05:29] Speaker 03: And then there's two reasons. [00:05:30] Speaker 03: First and foremost, Congress can regulate the appointment power. [00:05:34] Speaker 03: So actually, I guess there's three reasons, your honor. [00:05:37] Speaker 03: The president, Congress can regulate the appointment power. [00:05:39] Speaker 03: That's number one. [00:05:41] Speaker 03: Number two, [00:05:42] Speaker 03: The president, in fact, has an opportunity in that process to review the qualifications of service members. [00:05:47] Speaker 03: He has that opportunity during the nomination process. [00:05:50] Speaker 03: During the nomination process, a list is reviewed by the service branches through the selection boards. [00:05:56] Speaker 03: It's sent to the president for approval, so he has that opportunity. [00:05:59] Speaker 03: And then third, your honor, if adverse information is discovered after the promotion is affected, whether the appointment is made five seconds [00:06:07] Speaker 03: after the nomination or whether it's made 18 months by operation, the statute, the president has the opportunity to to launch a board of inquiry or when the members. [00:06:18] Speaker 02: So let me new hypothetical. [00:06:21] Speaker 02: The statute says recognizes the president will nominate recognizes the Senate will confirm and it says immediately upon the Senate's vote to confirm the person is appointed. [00:06:33] Speaker 02: Is that constitutional? [00:06:35] Speaker 02: No, I would think not. [00:06:37] Speaker 02: Your argument depends on the five second difference between the first hypothetical and the second hypothetical. [00:06:42] Speaker 03: I think there has to be a Marbury versus Madison said there has to be a moment in time when the appointment power ceases. [00:06:48] Speaker 03: So there has to be some sort of cleavage between the nomination process and the appointment process. [00:06:53] Speaker 03: Now, I think if Congress wanted to set that at five seconds, I think Congress would be able to do that pursuant to its ability to regulate the use of the appointment power. [00:07:03] Speaker 03: And as I mentioned, the president would not be left without remedy if after- One second. [00:07:10] Speaker 03: I think there has to be a split, Your Honor. [00:07:13] Speaker 03: Clearly, it's a three-step process under the Constitution, under the Supreme Court's holding in Marbury versus Madison. [00:07:18] Speaker 01: And you were saying the president would not be without remedy. [00:07:21] Speaker 01: You said the president can launch a board of inquiry. [00:07:23] Speaker 01: I mean, the president has removal power now. [00:07:26] Speaker 03: Yes, yes, but there are due process concerns with exercising that removal power in an arbitrary and capricious manner. [00:07:33] Speaker 03: So there has to be some sort of process afforded to the service member, but also the president can do a grade determination when the member is being retired. [00:07:43] Speaker 03: So if the appointment power is exercised and the president later decides or discovers information such that the member is not fit to hold his particular grade, the president does have options. [00:07:55] Speaker 02: And so I think that that that issue that they just don't see how the appointment power is being exercised in either two scenarios. [00:08:05] Speaker 02: One is the hypotheticals that I've been giving you. [00:08:08] Speaker 02: But another is our case where [00:08:12] Speaker 02: the appointment will happen automatically, at least absent a statute that very expressly states that the appointment will happen on day 181 if the president hasn't acted first. [00:08:27] Speaker 02: I think arguably there, you would have a better argument there that the president is on sufficient notice to know that his silence for 180 days will be [00:08:38] Speaker 02: the choice to appoint. [00:08:40] Speaker 02: But as you begin your argument, at best we've got some breadcrumbs here, not an express notice to the president that this is how you will exercise your appointment power. [00:08:51] Speaker 03: It's true, Your Honor. [00:08:52] Speaker 03: That's not expressly delineated in the statute. [00:08:55] Speaker 03: It's not expressly delineated in the statute what happens to the officer after those 18 months. [00:09:00] Speaker 03: But Congress's command is clear. [00:09:02] Speaker 03: You cannot have the officer in the delay status for 18 months. [00:09:07] Speaker 01: But is it clear, I mean, in the delay status and then potentially the confirmation expires? [00:09:14] Speaker 01: So Section 624D does [00:09:19] Speaker 01: sometimes make clear what should happen after a delay. [00:09:22] Speaker 01: If an officer is criminally charged and then acquitted, [00:09:28] Speaker 01: that officer has to be retained on the promotion list. [00:09:31] Speaker 01: And the statute doesn't specify what should happen if an officer is convicted. [00:09:38] Speaker 01: But I think on your theory, given that there's a 90-day deadline for taking action in that situation, the convicted officer would get an automatic promotion while the acquitted officer just goes back [00:09:51] Speaker 01: onto the list. [00:09:53] Speaker 01: And that seems like an intent that we would not reasonably ascribe to Congress. [00:09:59] Speaker 01: And if that's true, then why wouldn't a parallel reading be applicable here? [00:10:06] Speaker 03: I think you could ask the question another way, Your Honor, right? [00:10:09] Speaker 03: I mean, if the officer has been convicted and the president knows he's been convicted, why wouldn't the officer then be removed from the list? [00:10:17] Speaker 03: So I think that Congress is clearly putting the onus on the president here and on the executive branch to act. [00:10:24] Speaker 01: This court has previously ruled... The president is busy, 90 days, it's involved in other emergencies. [00:10:30] Speaker 01: Recommendation goes to him, nobody acts on it. [00:10:32] Speaker 01: Really? [00:10:34] Speaker 01: that convicted officer is going to be automatically appointed? [00:10:39] Speaker 03: The president is certainly busy, your honor, but he has many people working for him. [00:10:43] Speaker 03: He has the secretary of the Navy has he has the Navy's lower level officers and functionaries. [00:10:48] Speaker 03: I think that this court has held in and I see my time is up. [00:10:51] Speaker 03: So if I can just finish my answer to your honor's question, this court held in white the secretary of the army that when the service branch makes errors, the onus is on the service branch to repair the errors, not the service member, because the service branch is better positioned to repair those errors in the service member. [00:11:06] Speaker 03: So in your honor's hypothetical, I think [00:11:09] Speaker 03: The onus is still on the service branch. [00:11:12] Speaker 01: There are two bases in the record, as far as I know, for the detachment for cause. [00:11:19] Speaker 01: Is it correct that either one is sufficient to uphold the secretary's determination? [00:11:27] Speaker 03: Yes, Your Honor. [00:11:28] Speaker 03: He could be detached for cause under either 1611-0203B or 3C, but he did not satisfy the statutory, or excuse me, the regulatory language of either provision, Your Honor. [00:11:39] Speaker 01: And you say that the period of time here was too short to show substandard performance over, quote, an extended period of time. [00:11:49] Speaker 03: That's correct, Your Honor. [00:11:50] Speaker 01: Are there any instances where a military body or a court has concluded that some period of time is too short to meet that standard? [00:11:59] Speaker 03: I'm not aware of any instances in which they've concluded that it's too short because the military usually wants to give itself as much leeway as possible. [00:12:06] Speaker 03: I am aware of other instances in which they have found that provision to be met. [00:12:10] Speaker 03: I believe those are included in our brief one in Magnuson v Mabus that was 11 months. [00:12:15] Speaker 03: Another was 7 months and another scenario. [00:12:18] Speaker 03: The member who was detached for cause had three adverse fit reps, one of which was, I believe the language the court used was overwhelmingly negative. [00:12:26] Speaker 03: Lieutenant Mitchell did not have any adverse fit reps. [00:12:28] Speaker 03: So those scenarios are much more acute than the scenario Lieutenant Mitchell was in, Your Honor. [00:12:35] Speaker 03: And it's similar for the detachment for cause under 3B. [00:12:39] Speaker 03: That regulation requires gross negligence or complete disregard of duty. [00:12:44] Speaker 03: And if you look at the cases in our brief, Your Honor, Lieutenant Mitchell's misconduct clearly does not rise to that level. [00:12:49] Speaker 01: Do you do, I think, a good job of saying that the records in those cases are more serious, but it still leaves you having to make new ground in terms of this being not an extended [00:13:03] Speaker 01: And you characterize Mitchell's poor performance as beginning with the letter of instruction, but doesn't the letter itself document some amount of poor performance preceding it? [00:13:15] Speaker 03: Certainly, Your Honor. [00:13:16] Speaker 03: And I think there's a fine distinction here. [00:13:18] Speaker 03: And I welcome the opportunity to elucidate our thinking here to the court. [00:13:24] Speaker 03: We certainly don't deny, we cannot deny, this is the way time works. [00:13:29] Speaker 03: When the letter is given to Lieutenant Mitchell, obviously the incident has happened before what's contained in the letter. [00:13:36] Speaker 03: However, receiving a letter of instruction is a discreet event in the military. [00:13:42] Speaker 03: So prior to receipt of that letter of instruction, Lieutenant Mitchell's misconduct did not rise to the level where his superior officers considered it necessary to give him such a letter of instruction. [00:13:53] Speaker 03: So that's the distinction. [00:13:54] Speaker 03: It's not that we're saying that there's no misconduct prior to that date. [00:13:57] Speaker 03: We're saying at that date, his misconduct was considered significant enough, adverse enough that he was given this letter, which is a specific and discrete event within the standpoint of military administrative discipline. [00:14:10] Speaker 01: You're saying you can make a kind of limited inference about where the performance was preceding that because it was only then when it kicked up. [00:14:17] Speaker 03: That's right, Your Honor. [00:14:18] Speaker 03: It's like if you give a child warnings about certain behavior and then only at that point that they've done it a certain number of times, you put them in timeout. [00:14:30] Speaker 03: Was there misconduct prior to the letter? [00:14:33] Speaker 03: Of course, but only at that date did it rise to the level that his superior felt the need to act. [00:14:38] Speaker 02: One clarification question I'm going to ask the government about a part of their argument where they say it wasn't necessary to even show gross negligence or complete disregard of duty. [00:14:50] Speaker 02: All that needed to be shown was misconduct. [00:14:53] Speaker 02: Do you have a what's your response to that? [00:14:55] Speaker 03: Yes, that's a good question, Your Honor. [00:14:57] Speaker 03: So I covered that in our brief. [00:15:01] Speaker 03: The government has forfeited that argument because it didn't present that argument in the district court, first of all. [00:15:06] Speaker 03: Second of all, the BCNR itself did not find that any misconduct could have satisfied [00:15:13] Speaker 03: Milpers-Van 1611-020, it didn't evaluate it under the framework of 3A. [00:15:18] Speaker 03: If you look at the language that the correction board used, and that's what we're reviewing today is the correction board's decision. [00:15:23] Speaker 03: They evaluated it under the framework of 3B and 3C. [00:15:27] Speaker 03: I would also posit finally that [00:15:30] Speaker 03: you know, it's a hallmark of statutory and regulatory law that regulations are not to be interpreted in a rigidly literal fashion. [00:15:38] Speaker 03: So if you look at the rest of the regulation for information about what misconduct satisfies detachment for cause, it says, detachment for cause is one of the most serious measures that can be taken against an officer and should only be under, quote, this is a quote, only be undertaken with full appreciation of its gravity. [00:15:55] Speaker 03: So that suggests that when it says any misconduct that it's, [00:15:58] Speaker 03: backing away from that a little bit. [00:16:00] Speaker 03: It also says that only that if that if disciplinary action has not been taken against the member for the misconduct that forms the basis for the detachment for cause, the command must expressly indicate why. [00:16:11] Speaker 03: So there's clear limitations in the regulation itself in addition to the fact that that argument is forfeited by the government. [00:16:19] Speaker 00: Yes. [00:16:21] Speaker 00: Thank you. [00:16:21] Speaker 01: We have for Mr Walker. [00:16:30] Speaker 04: Thank you, Your Honor. [00:16:31] Speaker 04: May it please the court, Johnny Walker, for the Secretary of the Navy. [00:16:34] Speaker 04: My friend has identified two issues for the court. [00:16:37] Speaker 04: The first, their contention that Lieutenant Mitchell was promoted by operation of law. [00:16:41] Speaker 04: The second, that the board's decision to maintain the detachment for cause in his records was arbitrary and capricious. [00:16:48] Speaker 04: I think that there is a clear and narrow path to affirmance on both of those issues. [00:16:54] Speaker 04: And I would like to address those with the court. [00:16:56] Speaker 04: On the first, their contention that Mr. Mitchell was promoted by operation of law. [00:17:00] Speaker 04: The simple matter is that the law provides no such operation. [00:17:04] Speaker 04: The law provides the outer limit for a delay, which is 18 months. [00:17:09] Speaker 04: We were over that 18 months here, but the remedy that they seek [00:17:12] Speaker 04: is nowhere found in the law. [00:17:13] Speaker 04: And I think my friend just acknowledged that here at the podium today. [00:17:16] Speaker 04: The law on its face nowhere provides for an automatic promotion. [00:17:21] Speaker 04: So what that leads to is essentially an application of the canon of the omitted case, where Congress has not provided for a particular remedy. [00:17:28] Speaker 04: It's not up to a court to craft that remedy as a matter of statutory interpretation. [00:17:33] Speaker 04: So we think that is easily resolved. [00:17:36] Speaker 02: My friend argues... Is there any remedy? [00:17:39] Speaker 04: There could be, as we note in our brief, they could demand immediate action on the delay. [00:17:46] Speaker 04: But that delay can end in one of two ways, right? [00:17:49] Speaker 04: It doesn't necessarily end in a promotion. [00:17:51] Speaker 04: It could end in the gentleman being removed from the promotion list. [00:17:55] Speaker 02: You mean they could go to court and ask a court to demand action? [00:18:00] Speaker 04: They would have to go through their inter-service remedies first. [00:18:02] Speaker 04: They could go to the board for the correction of naval records and seek appropriate remedy there. [00:18:07] Speaker 04: And if they didn't obtain it there, they could go to a court. [00:18:11] Speaker 01: So they'd go to the board for correction of naval records during the period of the quake? [00:18:16] Speaker 01: Or could he still do that and say, this was an awful delay. [00:18:20] Speaker 01: I didn't get a decision in time? [00:18:23] Speaker 04: I believe there's a number of remedies they could go through. [00:18:26] Speaker 04: They could go to their direct commander and say, I've been waiting too long. [00:18:29] Speaker 04: I need an action on my complaint. [00:18:33] Speaker 04: But I mean, the cause of the delay. [00:18:35] Speaker 01: But not after the period has closed. [00:18:38] Speaker 04: After the 18 months has elapsed. [00:18:40] Speaker 01: They could do that. [00:18:41] Speaker 04: Yes, I think so. [00:18:42] Speaker 04: I mean, at that point, the military would be in violation of the statute. [00:18:46] Speaker 04: And to come out of a violation of the statute, it would have to make a determination. [00:18:50] Speaker 02: What if on day 181, every person in the entire executive branch who is approached by Lieutenant Mitchell [00:18:59] Speaker 02: to make this happen soon says, we're just going to delay. [00:19:07] Speaker 02: You're going to get no relief from us. [00:19:10] Speaker 02: So don't hold your breath. [00:19:14] Speaker 02: Does he have any remedy outside of the executive branch? [00:19:19] Speaker 04: Once he exhausts his remedies, he might go to court for a mandamus. [00:19:22] Speaker 04: But I mean, the violation there is the overlong delay. [00:19:27] Speaker 04: But there is no thing, but what he is arguing here is not just is that the statute itself provides this automatic remedy of a promotion and that's nowhere in the statute. [00:19:37] Speaker 02: What about his response to my last question, which was really me kind of parroting [00:19:44] Speaker 02: Your argument that the standard, this is now issue two, not issue one, the standard should be misconduct, not gross negligence or complete disregard of duty. [00:19:56] Speaker 02: And you heard his answer both on the forfeiture point and on the merits point. [00:20:00] Speaker 02: What's your response? [00:20:01] Speaker 04: Well, getting to my clear and narrow path for affirmance on the arbitrary and precarious point, I think it is this point about misconduct. [00:20:09] Speaker 04: Misconduct and not gross negligence was the basis for the commander's request for detachment. [00:20:16] Speaker 04: He mentioned nowhere in that request for detachment gross misconduct. [00:20:20] Speaker 04: He said, I request to detach Lieutenant Mitchell on the basis of misconduct and on poor performance of duty over an extended period of time. [00:20:30] Speaker 04: And it's not true that the board looked at this from a gross misconduct standpoint only. [00:20:35] Speaker 04: It addressed that when responding to Lieutenant Mitchell's arguments, which again, mischaracterized the basis for the commander's request for detachment. [00:20:44] Speaker 04: But it also said on the very first page of the board's analysis that it was looking at this from a misconduct basis and that, quote, the misconduct was severe enough to justify all the penalties here. [00:20:56] Speaker 04: In the district court, the government did not address this from a misconduct perspective. [00:20:59] Speaker 04: We did not make the argument that this could be affirmed solely based on misconduct. [00:21:03] Speaker 04: But that is in part, again, because the counts in the complaint were two on the arbitrary and capricious points. [00:21:10] Speaker 04: There was one count that the standard did not meet gross misconduct, which, as I said, never applied to the disciplinary action in the first place. [00:21:18] Speaker 04: And the second was that there was no poor performance over an extended period of time. [00:21:25] Speaker 04: So the government addressed the case as they framed it, though it was mis-framed from the way that the record frames it. [00:21:34] Speaker 01: So it's your position that the list doesn't expire after it exceeds the permissible delay. [00:21:47] Speaker 01: is a prompt the government is supposed to act. [00:21:48] Speaker 01: And as you say, possibly, it could be a jumping off point for mandamus or seeking some other attention within the executive branch or the like. [00:21:59] Speaker 01: But it's your position that Lieutenant Mitchell still could be appointed. [00:22:05] Speaker 04: I'm sorry, Lieutenant Mitchell? [00:22:06] Speaker 01: Could be appointed. [00:22:11] Speaker 01: nomination and confirmation by the Senate remain operative? [00:22:16] Speaker 04: Oh, yes. [00:22:16] Speaker 04: I don't think that there's an automatic consequence one way or the other when the delay expires. [00:22:21] Speaker 04: There's no automatic promotion. [00:22:24] Speaker 04: There's no automatic denial of a promotion in perpetuity. [00:22:27] Speaker 04: It's just that the promotion is continuing to be delayed by the Navy longer than the statute provides, but that's what it is doing. [00:22:34] Speaker 04: Again, the sort of three-part [00:22:38] Speaker 04: The three-step exercise of appointment laid out in Marbury versus Madison, I think serves both a functional purpose here as well as sort of a constitutional purpose. [00:22:49] Speaker 04: Constitutionally, there's a question as whether or not the Congress even could do this. [00:22:53] Speaker 04: But functionally, we know that it just couldn't happen like that. [00:22:55] Speaker 04: There is no mechanism for an automatic appointment by operation of law because there has to be that positive act that Marbury versus Madison talks about to effectuate the appointment. [00:23:06] Speaker 01: Congress clearly said, and they should drop off the list after this period of time, or the list should evaporate after the executive has enacted. [00:23:15] Speaker 01: Is that impermissible intrusion on the executive's appointment power? [00:23:19] Speaker 01: I know it's not something we have to decide. [00:23:20] Speaker 04: It may be, because you're barring the executive from taking action. [00:23:27] Speaker 04: And I will note that the statute not only does not provide for- Can I ask, this is more about [00:23:33] Speaker 02: the facts of the case. [00:23:35] Speaker 02: And this is a question from someone who hasn't served in the Navy. [00:23:40] Speaker 02: Can you give us a sense of how minor or how major leaving the ship for maybe as little as 15 minutes and stopping McDonald's on the way for a friend who's hungry is? [00:23:57] Speaker 04: I think when you put the additional perspective on it, this wasn't just an individual leaving a ship. [00:24:01] Speaker 04: And it wasn't necessarily just 15 minutes. [00:24:04] Speaker 04: Lieutenant Mitchell's characterization of the amount of time it was off the ship has changed from somewhere under an hour, quote, to 15 to 20 minutes. [00:24:11] Speaker 04: But it wasn't just that he left the ship. [00:24:13] Speaker 04: He was the command duty officer in charge of the ship. [00:24:16] Speaker 04: And the ship was leaving port the next day. [00:24:18] Speaker 04: There were significant preparations underway. [00:24:22] Speaker 04: And as his commander, the commander of the Howard says, there were a number of things that could have gone wrong. [00:24:26] Speaker 04: And you or I, as civilians, may characterize this one way or the other. [00:24:31] Speaker 04: But I put a lot of stock in the fact that Mr. Mitchell's commander on the Howard said that this was serious and egregious misconduct, that the brigadier general, who was the commander over strike group 11, of which the Howard was a part, said this was serious and egregious conduct. [00:24:46] Speaker 04: The chief of naval operations said the same. [00:24:48] Speaker 04: The secretary said the same. [00:24:50] Speaker 04: And the board for the correction of naval records agreed with all of them. [00:24:54] Speaker 04: So I do think this is very serious conduct. [00:24:57] Speaker 04: As the board found, every senior leader of the Navy who examined the discipline that was imposed on Lieutenant Mitchell found it to be perfectly appropriate. [00:25:05] Speaker 04: And I think deferring to them, as this court's precedents require, this is far from arbitrary and precious action by the board. [00:25:14] Speaker 01: Thank you. [00:25:15] Speaker 04: Thank you. [00:25:15] Speaker 04: Please affirm. [00:25:20] Speaker 01: And to Mr. Thayer, Reservoir Battletime. [00:25:23] Speaker 00: minutes. [00:25:26] Speaker 01: You don't have to take it, but you may. [00:25:28] Speaker 03: I would, I would like to, your honor. [00:25:29] Speaker 03: Thank you so much. [00:25:30] Speaker 03: Um, I want to address first, um, what my friend across the aisle said about the, uh, the second issue, the under Milford's man, 16 11, uh, he has admitted to the government has admitted your honors that [00:25:44] Speaker 03: This is forfeited. [00:25:45] Speaker 03: It was not addressed in the district court. [00:25:47] Speaker 03: The issue of whether or not any misconduct could form the basis for detachment was not addressed by the government for the district court. [00:25:53] Speaker 03: They may try to pin that on Lieutenant Mitchell, but the government has provided no reason why this court can review it now. [00:26:00] Speaker 03: And under this court's case law, the default rule is no review on appeal for issues forfeit in the district court. [00:26:06] Speaker 03: You're also your honor is not required to defer to the correction board in this instance to the heightened degree normally required for military personnel decisions. [00:26:16] Speaker 03: This is a review of a regulation. [00:26:19] Speaker 03: This court is perfectly free to employ normal arbitrary and capricious review to determine whether or not Lieutenant Mitchell's misconduct met the requirements of gross negligence or complete disregard of duty or substandard performance over an extended period of time. [00:26:34] Speaker 03: It did not. [00:26:34] Speaker 03: Now turning to what my friend across the aisle said about 10 USC 624 D5, he essentially said 10 USC 624 D5 can operate and nothing happens. [00:26:48] Speaker 03: That violates the rule against surplusage, Your Honors, clearly. [00:26:52] Speaker 03: As a point of order, Lieutenant Mitchell did demand action. [00:26:55] Speaker 03: He did go to his leadership. [00:26:56] Speaker 03: He did ask for a decision. [00:26:58] Speaker 03: And this remedy that the secretary crafts where someone can go and demand action or someone can file a mandamus action, that's not in the statute either. [00:27:07] Speaker 03: So there's no indication in the statute on its face as to what happens in this instance. [00:27:11] Speaker 03: We're left with looking at the clues that Congress has given us. [00:27:14] Speaker 03: And the clues that Congress has given us very strongly indicate that at the end of the 18-month period, an officer is promoted by operation of law. [00:27:22] Speaker 03: Thank you. [00:27:24] Speaker 01: Thank you. [00:27:24] Speaker 01: He's submitted.