did not receive the fair hearing the law requires and furthermore he raises other legitimate challenges to the way the investigation was conducted before this hearing took place now the district court made for errors and turning to the first one the right to cross examination  understand there's a separate in korea under the regs but the supreme court has said very clearly there's no right to a security clearance there's no right to a security clearance then there's no basis to constitutional driver's license that creates a a new property interest there's no such right to a security clearance yes you're all right to that point we thought we put pointed to cases so the green present our case which this court considered actually now  interest at issue land a citizen is is not incarcerated can go about his business the only thing he is denied is a presumptively disfavored access to directed what and now as a result it just seems like that's cutting into the executives control over security clearance decisions which supreme court protected in eagan to a very high degree if you're applying that theory to adjudicatory process sees this is not this is not the fourth amendment hypothetical where the police break down your door if you're a if you have a clearance right it's just how you would judy kate whether or not you get the clearance and the security experts make a judgment that they want to see he do with essentially the plaintiff in that case with arguing that the administrative agency executive put too much weight right but let's just focus on the hearsay claim i know you have others but that that is nothing more than the process for a as a matter of personal due process that in order to be denied a clearance the executive has to find me untrustworthy by clear and convincing evidence that's a process question do you liability concerns about hearsay but the executive says this kind of decision we have zero tolerance for risk and we really need to see everything everything we can possibly see that seems to me just cases are statutory eagan rests on article two concerns much more explicitly than webster rep rests on article three concerns that's true your honor and i think one of the important points there is the rational construction of the regulations and saying did they follow the regular i know i'm your standard i'm just trying to tie it down the sort of freestanding due process point which seems to me while not a security clearance this was you know they called a national security check i believe and in the opinion now national security checks are true it's not a security fence but she still had to submit a fingerprint she had to go through a background check it's tantamount to a security clearance and the court still reached it on liberty even the second category is the one the court's been focusing on the most and i think i would like to focus on as well as challenges to the ministry of proceedings in which the suspension was affirmed and what do you do with greenberg on that category well so what we're urging just to be clear is a functional approach to ian which accords taken in with respect to statutory claims and we think it should take the same approach with respect to claims that can be styled as due process or constitutional claims and that's basically look to what the claim asks the court to consider and if it is asking the court to essentially second guess predictive judgments committed to the executive branch about who you know may have access to classified information then that is something that is barred by eeg and we think that is the you know that's i would like to suggest is that this procedural end run around egan is becoming an increasing problem it is basically a way in which you can make a thinly veiled attack on the merits to use the language from dorf mine i'm in pretty much any case whenever the government you know suspended security clearance and then gives you the process he's under ito ten eight six five and under the you know the d o d directives you can always drum up some sort of claim a procedural error that essentially goes to the merits and as we know from the court's decisions of allas whenever you're making to do a due process claim you have to have harmful air so in the end of the day you have to be making an inquiry into whether the error was harmful in other words whether the exclusion of that evidence the admission of that evidence would have changed the outcome and that's precisely the sort of inquiry that you can foreclose but you flayed out all of these rules i mean i think under reagan you should have a lot of discretion to fix the rules but you've laid them out i mean the e o has a framework for doing right the d o d director implements it and maybe i can maybe i missed it but i was surprised not to find in that he you know the boilerplate final paragraph which says nothing in here creates judicial him for support right say i so i what's the basis for saying they can't just bring a run of the mill a p a claim to hold you to your own expert judgments about what kind of process is or isn't appropriate because the end of the day that type of claim i think it would be useful to look at you know the claim in this case it's that basically you know he was denied an operative the evidence was admitted this carpenter letter was admitted that showed serious concerns about the fact that he had told the navy reservist not to report contacts to syrian national he asked someone to do that it was a serious security concern why at the heart of this case and that evidence comes in and mr primary says and he says in his hearing actually a variety of things he's all over the map he says i don't recall saying that and then he sort of denies saying that and then he says if i did say it it doesn't matter so he doesn't really deny it and it's clear that there's there has been some contact with syria nationals there's lots of evidence in other words it in the the hearing before the administrative judge and i understand but his it his process claim is that hearsay evidence was improperly admitted you think that kind of document should or shouldn't come in even in this very sensitive context that's correct but what i'm trying to get to is that whether the docket whether there's a due process violation  violation ultimately you have to you have to determine whether it would have affected the outcome and at the end of the day with you national judge said was i find this person not credible not trustworthy and therefore i can't determine that you know keeping his access to classified information is clearly consistent with the national security i think that's the merits decision that is the matches that's corey egan but his coyness just he shouldn't have admitted this stocking but but but a corollary to that claim your honor is what i'm trying to suggest under the due process is that it affected the outcome that's the only reason why you are fighting about this admission of the evidence i mean it's quite clear that he says absent this evidence he wouldn't have been able to have sufficient security on the merits this is a procedural claim sort of yours masquerading as a procedural claim which is really a challenge to the sufficiency of the evidence and so again you could decide this as you did in gill that there is no merit to the due process claim number of merit based reasons including waiver because he had every opportunity to the measure just gave him every opportunity to bring in the reservist to have the cross examination but what i'm suggesting is that this is becoming an increasing problem we're seeing more and more of these sorts of cases where a point of says i'm not challenging not challenge america's security clearance decision but i am challenging the procedures here and the district courts are not a forum for sort of run of the mill evidence jur type of how do you make the distinction between claims that really are directed at process over which we are supposed to have some responsibility and those that are in runs how do we how do we make that mistake well so again that's why we're  functional approach to eat and i think you look at what the clean asks the court to do and in greenberg for instance you asked about greenberg and i don't think i was funny but i'll try to circle back to that greenberg it was just a question of the constitutionality of the questions being asked on that security questionnaire but in particular the one about prior drug use yes it sounds to me like it's very intimately bound up in the ultimate well security judgments so i would have thought that the core executive authority to make security judgments includes the ability to say we really need to know about drug use that's what the government argued in greenberg and law because that's my point is stuck we're stuck with which stuck not just with greenberg's general holding that if if the claim goes to pay at a minimum of the claim goes to process and is constitutional it's probably outside of beat him but we're stuck with applying that principle to a particular kind of procedural claim that seems to me very closely bound up in the in the merits related expert judgments well so i guess that the primary distinction i would draw about greenberg which we try to draw in our brief is that it was a challenge just to the constitutionality of that question sort of in the abstract it was not as you know is trying to occur here a due process challenge to the way that the agency is you know expert administrative agency apply its own rules as to this guy and made up an injury findings as to this particular person and that's a really really important distinction in terms of the individual lies predictive judgments that even as opposed to she it's one thing for a court to say up or down basically on whether they a question about drug use violates the fifth amendment is what ultimately the court said in greenberg it didn't and it twenty nothing entirely for a court to examine you know the mystery of judges application of its own evidentiary rules and make a determination that there was you know prejudicial error in the admission of this evidence because there was an i'll cross exam i would and it would have made a difference as to this guy i would have thought that what we allowed in greenburg gets more intrusive because what what you're just what you just mentioned is court holding the government to its own standards whereas greenberg is you want to make particular ink where you think drug use is highly relevant and important and that seems like a pretty good security based judgment and we say there's judicial review of again i think it's the it's the the question that the reason why greenberg is different is because it's not about valuating the individual i so let's a said oh so let's say there were no rule based criterion amounts in advance and an applicant is up for renewal of a security clearance and the security officer in an individual adjudication says i want to know about drug use about your about any drug use by you because i think it's relevant would  applicant be able to challenge the constitutionality of that so same same question let's just ask in the context of an individual's hard it's hard to answer the abstract because of course that type of question and really of the whole broad swath of personal conduct type questions have been approved on the merit is one such case saying you can ask a lot of those sorts of questions on the merits i think that would be something if an individual you know administrative judge like the judge in this case thought that was relevant what is relevant and what makes you you a pacific person a risk to the national security so i do think that's the type of thing that would be board viii give us a court has any further questions and we're happy to res every one of the statement of reasons and at the time that mr palmeri was given that what the governor is calling an opportunity to cross in a witness he was essentially told that if you want to preserve your right to cross examination you have to go bring the witness and the reason that's important is because at the time he was given that choice he did not know if there'd been any admissible evidence against him and he specifically asked in israel judge are you going to admit are you are you going to rule on the admissibility of this letter before i have to make this issue and the judge said no and so because of that he's put between a rock and a hard place without knowing killed board itself has ruled that where the government has produced no evidence just because the administrative judge finds the testimony of the applicant and persuasive or doesn't believe him is not sufficient to for defined against him and i can cite the citation to that as i see already ninety six