here i want to deal with the one i believe to be the three fundamental errors that judge who bell made in granting summary judgment first she inexplicably found that there was no employer that took a material adverse action against the idea coming and i would know that the question here was not only whether both the referral and the investigation as the government puts in their brief as they framed the issue we this case and every bit about investigation done by the security division it was always been about the referral we believe there was ample evidence abundant evidence that in fact the management of ohio of the operation office of international operations of the i was well aware of what was going on and took part in this process and i think from the looking at the facts and inference is reasonable inferences from those facts we can conclude that  twenty seventh year as an f b i agent and that that these this management had a first hand knowledge of what was happening here and i think we laid it out fairly clearly our brief i would just highlight the fact that there was a sense of parallel tracks going on in late two thousand and one to early two thousand and two there was a there were complaints that were being made by mr rattigan at the time that he fell whether you agree with him or not that he felt that he was being discriminated against in terms of the how he was being treated at sea of the league at in charge of the f b i s riyadh saudi arabia office that was also at the same time efforts being made and there's clear documentary evidence on this  assigned as a temporary duty assignment to riyadh from november twenty sixth to do december twenty one two thousand and one he was a very questionable choice for that position he had he had less than a few months ago have got a wall from his post as of the gap and in the caribbean he had an admitted problem with alcohol he was in alcohol rehab there was even if it was it could it was there was no justification for for him not only for a maid to be given this assignment but for him to even have access to confidential materials that violated the f b i zone guidelines but nevertheless they sent him there and he made certain observations while he was there observations that no other temporary duty employee had made in that in the years that they had been assigned to reality and in fact  a section chief of the office of international operations have questioned t d y employees when they came back looking for information about how the office is running looking for information about about rand again he came back and ended up writing an eighteen requires an agency like the f b i to be concerned about conduct that has it raises the reasonable suspicion that somebody is and is a threat to the national security the issue of whether he think what george williams is asking as and and having again too didn't we feel in a way for close you from making some of the argument you're making now ratigan to we say the government opposes remained on the ground  and i know you're disputing whether the government is certainly correct but we're bound by what the previous panel said well first of all i don't think the panel was in a position to find the facts in this case i think that was probably for the district court you know whether it was proper not the panel  by way of example certain facts that may or may not be true i know i understand there's language that says it's true but there was never a concession by the plaintiff that if that was true there was that was hotly debated the court but the court says follows up although ratigan claims these actions raised legitimate security can cern's an issue that has no relevance under the knowingly false statement it does not suggest that late in reported or that ohio officials and for factual information they knew to be false or than it then lists a separate set of items which are open to discussion but it does sound like for purposes of the remain the panel has already decided some elements of the e c is being true and i be taken out of the context of what's happening there and if you look at what the district court did below it just simply accepted the fact that late was a lonely actor that he wasn't there was no involvement with the management in constructing this e c that was full of they reviewed it i mean you have to understand the evidence was that the management of ohio got that easy while smith who we didn't have a chance to depose because we didn't understand that that that you know we were operating could be held liable for for retaliation we think that was wrong we think that was in the air we think that she only stepped her bounds as a determining summary judgment by arguing by made finding facts that were that are not supported by the record the record important because letting testified in his deposition in this case that that he was originally going to simply refer this to the employee assistance unit because he thought the agent have some problem he didn't back off of that trial and said no i was wrong for the moment that we actually are bound by the prior panels ruling about some statements to be true or being on contest so you agree that this so after the prior panel rule the supreme court issued its opinion and nasser wiring but for causation for retaliation claims and you still dispute that that applies to cases involving the government the but for  then have both held that that applies to cases against the government what's the argument that it doesn't apply for cases against the government well i think the standard has long been that that if it was a motivator substantial factor already instructions they were instructed that the plaintiff had to show but for so if we assume for purposes of the discussion that there are some true things in the referral and some knowingly false things in the referral how can we conclude that the fight for the knowingly false things there would have been a referral you would have to evaluate they have to weigh the significance of the true things right but isn't that exactly what we said in ratigan to can't do you know i don't think so i think in writing and i think this court erratic into said there are some things that maybe there's not a dispute although we dispute that but there are clearly things that are a dispute such as whether he's about ready going to was under the circumstances where a mixed motive theory was acceptable and if it is information reported or to second guess the employee's determination that seemingly doubtful or in significant information warranted reporting so if there is solid true information in there we would have to way that juror would jury would have to weigh that information right weighed against whether or not that's enough to cause a referral i mean i understand the villain here but if you if you  true what's not true i mean this is what this sounds like the are you want to make to the court well right well and that's your argument about why the panel's decision doesn't go far and goes too narrow on course the government has the opposite affected this that i think there is still room under this under the regimen of the good tension between the executive order in title seven in a properly placed case and here don't forget we're talking about a case where all these allegations were found to be unfounded and the subsequent investigation so that has to represent something i mean even though the circuit has found that some of it was true the f that's yeah i mean i'm perhaps making an argument that best suited for the panel but i don't think you can have a standard of knowing falsity divorced from the context of it was the facts right and that's what has that's what bentleys the court charles harbor for the attorney general it's participations in this case this court recognized that allowing title seven claims premised on allegations that in order concerns about another employee's fitness to hold a security clearance present you can problems because it would choose the reporting of information necessary for executive branch officials to make predictive judgments about who may hold security clearances in light of the essential role that report even questionable or marginal security concerns plays in this context this court sharply limited the kind of claim to proceed without running afoul holding that it was restricted to allegations that an employee reported information that he knew to be false and the court then remanded to the district court to determine planes retaliation for two reasons first the quirk properly held the plane to fail to present any evidence that any of the provisos reported information to the security division that they knew to be false and in the alternative the court held that no reasonable jury could find that retaliatory animists rather than legitimate security concerns was the but for cause of the referral to start with the first so this is the vance argument is that right it's in part the fans argument it could i see sort of three past two affirming the district court retaliation claim that only the agency is only liable for actions by a supervisor is that right yes your honor because and the reason for that is the same as the reason it would be in there in the sexual harassment context in a hostile work environment sort of  knowledge that's imputed to the employer understood young so how do you just how do you square that with what the district court did here rely only on vance without even mentioning the caspar case first of all the plaintiff excepted sort of the supervisor donovan laid the person who was supposedly you know his discriminatory and this is going to be a imputed to the supervisors had no retaliatory motive there's never been an allegation he's out of retaliatory motives the fatal defect in having a cat's paw theory perhaps why it was never raised in this case it's simply not a theory that applies here and i would point out that in terms of the vicarious liability principles there's even more reason to be careful about holding employer liable for sort of one off comments by low level employees you know reporting concerns and it's especially important we're here you have a system under the executive order twelve nine six eight in which employees are encouraged and expected to require to report even mundine things that may in retrospect be wrong be trivial and this court in its prior decisions recognized all that that this but what about the prior decision saying there seeming to say that would be good enough if waiting alone had no only reported false information of the question down the line of employer liability we hadn't gotten to that point the cases you know had been litigated and presented to the jury on a different premise on the premise that it was the security divisions investigation that caused the action here so we never really got to thinking about you know what the referral was and who might or might not be liable for the referral this is an unusual case in that respect in the sense that you know the employer did as far as we can tell exactly what it was supposed to do it got you know concerns raised by a lower level employee they elevated them to the proper people in the f b i the f b i quickly undertook an investigation decided you know these are security concerns that warrant revocation of the the issue of vicarious liability that was not something that was litigated in the prior feel about the only issue was the m i mean the only issue and as they sat and read again and title seven is the employer's liability so somehow it would only be the employer was like there's no argument that laden was going to be understood but we didn't talk about employer vikki in vicarious liability here you know in the prior appeal because it was submitted to the jury on a different theory of the theory that it was the security divisions investigation that cause don't even have to go that far that you've also argue that they have no regard for her mode that's correct your honor thank you and that's exactly what i was getting to is that you could sort of put that aside leaving aside the weight report or the fact that we think we're right on the right then that the panel said that because people didn't know the standard was going to be knowingly false there was room for discovery so you can now say they have no evidence of knowingly false and evidence that could form the basis for a claim of knowingly false security reports we shall be man for the district court after permitting any necessary discovery that doesn't mean that it's up to the district court to decide it sounds  again the panel has decided that they didn't have an opportunity to develop evidence of knowing falsity so there were there were going to be permitted to do necessary discovery to find i agree that the panel should leaving open the possibility why wasn't an abuse of discretion for the district court to let them try to develop evidence of no ups for the for the standard reasons that whenever you're asking for discovery you have to show what it is that you need and what you what you've got with a presentation in district court which you've got court again you know exercising the role assigned to it by this court this did the district court it was as this court said in in its decisions in the best position to decide or whether the plaintiffs claim to could proceed t it was rejecting it for that reason that what was the reason that this court gave for project discovery oh really was that there wasn't anything sufficiently identified i mean again it was well they want to say there were they obviously they want interactions prior panel said the dischord had to keep in mind that this was not the standard at the time of the previous discovery so still how did the disk recorder do that the district court again as i was i was trying to explain for was frustrated i think with plaint the course records explanation which is one paragraph on page six thirty one of you and x is first concerning supervisory liability plaintiff testified as deposition a trial that i'm sorry how does a guy with a with a p know during prior to ever in trial but this court said that he didn't that they didn't have the incentive to do that so is that consistent with what the what we told the district court i think it is you're on testing whether they the information the employer had was knowingly false and which we didn't explore what was the kind of discovery you were asking for that allow you to do further depositions of short of a wall smith oh but we never ask that person if he's going to come in and why that's important information i was to say that i appreciate the court's time that it can't be the case that any