that congress has spoken very clearly has to the responsibility of first american systems protection board and this court to examined any complaint in which a employee claims that they have not been returned back to the precise point they have occupied prior to their military service and in this regard we have seen rather extensive parsing of several courts regarding the contours of even as it might interact with this in this instance what we have seen it is questions regarding title seven claims which are a different flavor of discrimination  run away from perhaps the idea that delving into the merits of that is possible because of what is recognized as those ordinary burdens shifting analysis that come up in these why you believe we're in a you say or context i mean he was already reemployed after military service after his military service and it cracked he was almost immediately began making reference to the sion act of the headquarters of naval reactors to say that commander wilson at while acting in an official capacity and performance of his military service did something command investigator for the navy yard police where this horrific shooting took place on september sixteenth so there is this very large body of documentation which is his muster sheets there's  different than the case i'd like even even if we accept the proposition that he was an official military duty the they didn't say we want his security clearance from vote because was not none of this there is nothing that exists with regards to a complaint about him that does not deal with the time that he is performing his military service and the script liability that you're asking me judge him out but that never gets reached by the m s p p because they refused to hear it and this is very much also highlighted in the fact that when i bring this issue to the court i want to but that's all we hear and the opposition brief from the government is commander wilson did bad things while he was in the performance of his duties and that is a disconnect your stand and they say that there has to be congressional intent somehow in this statute or otherwise too that the board is supposed to review for security clearance what are you relying on  sara for that congressional intent well let's look at what the the facts are in eagan to distinguish that and that is an eeg and the employee goes to apply for a job for which a security clearance is require and that the agency comes up with the conclusion that they're not they are appropriate for some reason for having that security clearance and thus that gets appealed to a higher power saying that they any employer who takes actions substantial or motivating factor employers adverse employment action that sort of situation that that mandate is not present in e he is afforded statutory immunities to the district of columbia in federal law with regards to care and firearms when he's not performing those duties and one of the things that i spoke to in the course of briefing this case is congress's intent that persons who have these immunities are around because they create this homeland security force to respond to these catastrophic events such as what occurred at the washington navy yard so when congress in two thousand and four and acted the law enforcement officer safety act a team u s c two nine twenty five b and c it says we want police officers or other persons who we designate have this sort of long court discretionary law enforcement authority to necessarily include title ten you see on this day apprehension authority that they are exempt from these weapons off that they may carry their personal firearms in off duty anywhere they want except for some limitations and the reason that congress gave this weeping immunity to these officers such that they could respond to the kind of catastrophe that occurred  at the washington navy yard on september sixteenth we have one hundred and seventeen police officers respond to the washington navy yard none of which were authorized to once the shooting started eight different agencies and one hundred seventeen people who didn't belong there went in there and defended and defended the people who work there and killed the guy who was doing the shooting and that is what congress and vision when it said we're going to have people who aren't even working right how we're going to make sure that they're allowed to carry a firearm concealed loaded with hollow point bullets of or ordinary police type firearms we're going to let them carry that just about anywhere they go in the united states because we want them to be able to respond to something like this and what happens is one hundred seventeen people get commendations you know there's this huge ferret fanfare about them and even  commander wilson is getting commanded by the chief of police and the people that he works with he's getting a lot of fanfare about this in the weeks following the september sixteenth shooting and what happens i good afternoon your honor and please the court the m s p correctly determined that it didn't have the authority to look into the merits of the security clearance revocation on how you sara because of the court the supreme court under under eagan however this group are also has case webster in which there was a serie a constitutional discrimination claim that dealt with as a policy matter was the government in appropriately discriminating against a certain class of people and in that case homosexuals and there was a right of action there under their title seven i believe  court has made very clear congress must specifically state that it intends for a review of a security clearance action to be reviewed by courts or else because of the national those serving in military service and for their return for military service correct yes your honor however it did not extend that specifically to reviews of security clearance determinations and therefore you specific and refer to security determinations the specific words security determination wouldn't necessarily be required but at a general catch all provision and is not sufficient  security clearance determination the usera claim that might be viable in this case is the revocation under section forty three eleven of userra and that is not sufficient to get around and that is exactly what happens in twenty and in rad again the claim was for a title seven claims for retaliation and under that under that claim the referral itself could be a viable title seven claim here the mere referral for a security clearance determination isn't a new sarah claim even under further from that this is just the last straw and and the executive expects and this is an executive order twelve nine six eight that's referred to in some of the same circuit opinions expects and encourages people to refer to the national security personnel to determine security clearance to terminate to make a security clearance determination even if that referral may be on its face somewhat dubious that is the responsibility of the security division or at the security personnel who makes the security clearance determination and that's what happened that's what happened here not simply keeping a clearance would not be clearly consistent with national security and that's the standard and and the supreme court and recognize that the clearly consistent standard required for that perspective judgment was incompatible with review by the courts and that's why this type of case is not just a shovel i have a little bit of problem with your reemployment argument you essentially argue if you take question and little trouble by that because that could mean you could just bring somebody back for a short period of time and then you know hold off on your discriminatory action and your honor it's not our position that there would be no claim under userra at all it's that there would be no removal action predicated on a loss of security clearance requires looking at just whether the core of the court whether the agency looked at whether the position required a security clearance whether it was required to give the employee a different job without a security clearance whether to pursue jurors or met and the m s p me those determinations in this he actually did act under military orders but even putting that aside the that sort of analysis and again in the predictive judgment of the security personnel whether his actions under military service were clearly consistent with the national security that is not reviewable by this court and not reviewable by the m s p because the the security personnel to analyze to review and they did and they made a determination and that determination is final and not revealed by the speedy i know for the questions we respectfully request this court  and read again they were reluctant to try to figure out if the agency relied upon the false statements to come to an addict conclusion as to their security clearance  revocation but that actually never happened in ratigan and that was that was kind of the part that got sidestepped and instead as was later noted by a district court case that the court really could not the referral from the very beginning saying we are doing this because of commander wilson's military service every single document states this is because of what commander w did in his military service even if you are able to to get yourself within red radek and even if we decided that renegade was persuasive authority that we should we should adopt even there the d instance as a two thousand and twelve case and the problem with the discriminatory purpose again as i brought said the first answer the first go around was it's really hard to delve into versus health and human services at five thirty four federal thirty three sixty one this year by this court fact really trying to figure out if there is a discriminatory motive without getting into the crowd to the me a potatoes and whether what their determination was here we have a factual distinction and everyone is saying it's because of you sarah because of his military service i want to point to the  one we have is military orders that say those dates signed by his commanding officer it says that these are his records showing that the he was performing the military service and the court judge will rally a big good point about what about this if he is required for military service if he required to be here and one of the things that the government says is nobody asked him to come up nobody asked him to show up there nobody asked him to bring a gun on  ignores the concept the military concept of standing orders and that is to say when something bad happens you should come here and we'll figure out what to do that says that's a very ordinary there by the base police there that says i am here in case of an emergency and i am authorized to carry a firearm and that is what he did and to do sell a prohibit eat other agency from looking behind the motivation of the military from looking at his performance in the military they're not allowed to do that you're not allowed to say oh you bomb children so therefore we're not going what you can have your job back that's