is predicated solely on the fact of an earlier summary suspension of a security clearance we agreed with the board's decision that due process requires that employer like mr gargiulo has an opportunity to respond to a person with authority to change the outcome of that security clearance determination in either the security clearance proceeding or the indefinite suspension proceeding prior to any deprivation of  years that good security clearance was summarily suspended on august first of two thousand and without notice without any opportunity to be heard it was summarily suspended well let me ask you about the i mean the security clearance personnel kind of kind described as personal conduct and sexual behavior and several paragraphs of description and then an offer of an opportunity to reply which you responded to in october of two thousand and eight with a letter saying that you waive your right to oral reply but then you responded  a three page letter to to the various points that were raised why didn't this satisfy the opportunity to respond to the reasons for the security clearance  facts of the earlier summary suspension if that condition was mad he had no authority to determine the merits of that curlier security clearance determination and but i'm looking for authority that specifically addresses the purported right to have full discovery as opposed to simply notice of charges and an opportunity to respond to trucks in other words you were told here are the reasons that his security clearance has been suspended and you could have come in and said that was me you've got the wrong guy or that isn't any reason to suspend somebody what is the constitutionally based reason that you had a right to get this complete set of the underlay didn't it's all rooted up the entire bundle of them right those rights are booted in at second home or factor what is the risk of an erroneous their probation to the procedures that were available to mr gargiulo so we have to define what were the actual procedures available to him is not satisfied in a case in which you have notice of the charges but you do not have discovery of the underlying mechanics yes because in this case as i said earlier the  precedent we know this court has really here in the trading case decided a similar case but that was under the statutory protections and title five seventy five thirteen and that earlier taste the employee did not get sufficient notice he had no materials before he had to audit was case before deciding whether in fact that security clearances been suspended he might know i didn't have a meaningful opportunity to make a pitch to him and secondly if he doesn't have any given to release then how do i know that the  materials that are relied upon by the agency are not right for tots of innuendo of hearsay statements these witnesses are not so good to cross examination we have no information other than a mere notice and i don't have enough materials to make a pitch  no one in a position to speak is a security clearance issue with respect to his right to respond to the reasons for the security clearance is i read the papers and correct me if this is good vision from the associate director and isn't this exactly the person who has already over the security clearance issues yes ok and he asks for the materials he doesn't get them until maybe ok but you back to the material well you had two points one thousand materials the other was a person with no authority to straight to the security class my submission to you is what is wrong with having this greenlee's be the person who would receive a reply since that looked to me at least like the person who would be able to speak to the security clearance i agree with you except that in the absence of the material so you're back in the palm tackler one that's yet your whole argument that it's not meaningful ok that's the bottom line it is not meaningful let me ask you one other question now the information that pertains to the security clearance what do you see as the difference between what we have set this statutory right and what the board is saying you have as a constitutional matter and what you think you should have that the board didn't give you that the constitution so that three different rights campaigners i don't see a qualitative difference between a statutory procedural rights and a minimal due process guaranteed by the constitution with both are rooted with notice and a meaningful opportunity to be heard at a meaningful time that's what i see and i don't see a qualitative difference between the two i see the board's decision was correct up to a point in articulating that in the context of proceeding like this that before an employee is deprived of his pay or her pay that the employe e given an opportunity to make his or her pitch in a meaningful way before some authority who has the authority to alter the outcome but also to have all the materials relied upon so that the response is meaningful how can we avoid and erode minimize iranians deprivation without those materials without looking although that innuendo and gossip and hearsay statements maybe it's accurate maybe it's not even for the past twenty five years makes clear that in this context cognitive congress codified its employees due process rights in the civil service reform act employees are entitled in these situations to the procedural protections of seventy five thirteen in this case the mirroring provisions of the essays particular personal management systems as well as the procedural protections compliance with the procedural counsel for the other side is there a claim that on the assumption that there is no property interest the triggered due process at all nevertheless has statutory or me was that he does not claim in this court that his seventy five thirteen rights were violated that's right so we don't have an issue he only issues we have his work is due process rights but yet all of us alternately this court is looking at whether it should affirm the ultimate outcome of the board's decision which was upholding the indefinite suspension and we're urging the court to do so on alternative grounds here  employee must either have had an opportunity to respond on the merits to the curity clearly determination and importantly if i could just ask for one moment you first have to separate two distinct tracks here the security clearance termination  in which there is no protected property interest and the personnel action the board here is saying that an agency may not take a personal actions unless the employee has firsthand and an opportunity in the board's opinion to make some kind of meaningful response on the security clearance or in the alternative ensuring that the deciding issue i'm a personnel action has that authority so here the board is imposing upon agencies mandating certain for seadrill protection for what we were what i thought i can see maybe it's just asking the same question but i thought that in austin and cheney we said there were seventy five thirteen right with respect to the clearance withdrawal or clearance suspension so what has the board done under the rubric of due process here that isn't already required with respect to the clearance items suspension austin were focused on the notice requirement under seventy five thirteen mr jewellers appeal and now the board's new in this case focused on the response to a separate sure you let me describe what i understand cheney and alston to say and you tell me how your view of it is wrong i understand them to say that it isn't enough when you're seventy five thirteen simply that say you get a chance before you're actually fired or suspended from your job to go in and say i shouldn't be suspended to which seat responses but you've lost your sears security clearance and when you say  the security clearance was improper the person's just not my job to decide that that according to cheney and alston i read them say is not enough you are entitled because notice of the reasons for you r security clearance denial either at the security clearance medication stage or ultimately at the station which is suspended your right moves a meaningful an opportunity notice and a meaningful security has worked an extension of cheney so now not this is what what i'm struggling with is what is that extension what type thought i heard you say in response to just run it was that the extension is they are allowing you to make a responsive reply a meaningful reply to the facts underlying the suspension of your security clearance and that that isn't permitted by alston and cheney but i read often that cheney has a lonely need to respond to the factions underlying the denial or or suspension of your security clearance is that am i wrong in reading certain procedural protections with respect to security clearance i think i'm i really i want to bring you back to my question dozens allston  you lost to security clearance do you have a right under those cases to say what is the reason for my revocation much fury clearance and i want to tell somebody and there's similar language it has but here's what it said in the at the employee must be given enough information to enable him or her to make a meaningful response and here's the critical language to the agenc well you know what was my security clearance suspended and is it a requirement my job that's a meaningful response to the reasons or the security clearance is not right yes but importantly those cases did under cheney if this court found it would be unfair for example for employees to walk into the side you first have supervisor come in and i say we're suspending your security clearance we can't tell you why at all we not going to tell you any reason why and we're removing you for that reason and therefore to know you need to give them more information than that but at the same time that cheney and all connive putting come completely to one side the clearance situation just an ordinary that or an ordinary suspension or germination of employment case does the seventy five thirteen require a meaningful opportunity to respond to somebody with the authority to decide whether to cancel but terminations of employment or as a demotion yes although that right in some situations does look very much like what happens in these cases bill for example in cases where an employee has been charged with a felony and is being removed because of the reasonable belief that this felony has been committed hearing on an issue about how the agency should react on the assumption that the clear was no longer available what we understand mr jeweler to really be asking for is due process in a separate example the deciding special isn't going to have any authority to do anything about the criminal charges and i see that i am nearing the time of the the court would permit me to answer your question but another example would be  basic licensing and other sort of qualifications that an employee might need a driver's like the blog sites and whatnot the deciding official doesn't have the authority to to change those decisions but can as a defining official and you hear clear when it is no claim that these there were there is any issue jewel due process violation with the security clearance for vacation process such a collateral proceeding and went on the issue here is  security clearance that's correct the due process rights attached to the indefinite suspension that's what the that's what the issue is here and we go back to the issue of a deprivation of a property right in the absence of a meaningful opportunity we know the due process mandates that an employee have at least an explanation of the materials of the charges against him or her that never happened in this case before money was taken away from this tenured employee and that is what the due process rights in the uk quickly in the other cases where counsel says that well all i smite of in revolves that's a condition of employment of the driver's license might have been revoked that's a condition of employment somebody might have been indicted for a felony that's a condition of employment in all those situations we have collateral proceedings that give us some substantial assurance that there was some procedural protection there was a hearing get just on that in the in the hawaii and seattle or san juan incident there were some sorts of procedures that led to the adverse actions by the two police department is that right well and good but any client advance came in with some procedures i don't i assume that there were some procedures in san wine and and hawaii is that right and i don't i must confess i do not know whether such procedures were it was charged with anything i do know that in those other situations there are procedures in place for america to work merit assistance to be made and perhaps to give some substantial surance before deprivation of property takes place in this case we have a completely summary simply summary just pension with no material since my guy basically had no opportunity to make a meaningful pitch over the fact that perhaps he was a very good