eyes more of an eye and a call in the sense that in my practice and all i do is represent federal employees for this for misconduct i also represent them on security clearance reputations and i'm seeing this now happening they play somebody a suspension of their  security clearance and we said we don't know what's going to happen we're going to investigate i've had clients indefinite suspension for two or three years yeah they haven't done anything they have provoked a clearance they haven't fired them they haven't proposed to remove them so i'm seeing this is a procedure by the agencies it goes through in detail explaining his approaching the university of michigan and it's says expressly he has misused his office and authorized it or is potential for an authorized outside employment it goes through the details of approaching the university as a seeking to obtain a consultant ship it goes through in a lot of detail he had that memo in front of him and unless the board is wrong on this point and i didn't see you argue this on page twelve explains you his counsel reviewed these documents in the preparation of their oral and written reply what is laid out your honor is that they understand the march second letter is pretty bare bones but you also have the january twenty ninth memo at the time maybe not you  and there was an opportunity to review that and address it prior so i don't see how there's a kind of due process well that was here because he may not have risen to the definite suspension was proposed but he received it at a time and had a full opportunity to argue it and let me throw in there to pile on what additional information would have made the notice adequate given everything judge more just well if it might be helpful the cheney case i think is is on point the reason it's on point if you look at the facts of that case you see exactly the same type of information given to mr cheney in that case which is also the case and the court in that case said look that's not enough that's not what can say it  have an opportunity to understand the basic framework of what the allegation is so he can respond to it we've had a lot of clearance cases and i'm surprised that the amount of detail here that's  that's what i've seen here is agencies using say we're going to suspend but we're not going to revoke or not even say we're going to revoke whereas in our julio that was a revocation case in that case you got a notice saying we're going to suspend as we revoke your clearance and gave him thirty days to respond to that notice and he didn't get that and he eventually got material which was mandated by the executive order one to nine six a by president clinton that governs revocations and in security clearance was on page twenty nine even talks about how the university of michigan provided a copy of the business perspective that mr crush had provided to mr good listening and so that's all of that say be wrong and maybe maybe all of this information they gather this stage turns out to be erroneous and he is either reinstated or there's a lesser sanction or whatever but but this isn't a question about the accuracy of what information was provided to him this is whether he was given notice of what they thought he did wrong was and i don't see how you can say page seventy six is insufficient notice given that it's far more notice that the person cheney than well if i respectfully disagree because i think if you look at cheney it's similar he said that specific things a matter of fact mr cheney was interviewed by a p r vest years before that and he was sworn to secrecy in that case we can't talk about what we talked about he received information from the agency mr gresham did not receive any business perspective a prospectus before he was  suspect he received nothing except the documents that are contained in the record that i put there and one of them trying to bring to the court's attention is that is that if the agency is going to suspend some of these clinics and not even tell them what you see on page seventy eight of the of the appendix there's no opportunity to respond they can even respond to this we're going to deficit spend you just because you're suspension has been your clutches been suspended how can we adequately respond to that and so there's an issue between revocations and suspension s court hopefully would take a look and say wait a second here how can they take an action like this in a situation we're talking about a government shutdown three weeks my client at a government shutdown for fifteen months and his return to has no pay for that period of time there's a lot of issues that the agency did not let him know what was going on until far later when we got the discipline case file in two thousand and seventeen long after he was suspended why do you conclude their investigation be clear i'm not suggesting that in fact that he was in fact suspend him for fifteen months without pay by any means appropriate but the question that's not a question by me and i'm not being asked to figure out what how this process should work beyond just was he given adequate notice of the reasons for the suspension of his security clearance at a time where he could respond to it so that's the only issue i'm looking into i just want to say that because i appreciate that you are raising flaws in the system these are the the employees rights and entitlements but those are the flaws that are in front of me today and the only thing in front of me is does this these documents provide him with sufficient notice of what they were thinking at the moment they were suspending him because it's not fair what i'm saying is that there's not even a small modicum of any kind of process that's in place other than that one paragraph when it happened you're talking fifteen months later you know mr mr cheney that was like two months later and now you tell me i'm sorry a few months we're talking five years at least in two thousand and ten allegedly when this allegedly happened which he did dispute it and that's probably not even important he disappeared it but obviously ultimately it wasn't true but the point is is if he didn't get an opportunity to tell you why was he suspended for ten days what's that why was he suspended he was suspended for not reporting certain actions that he started a web based business that after he retired he might know that i'm coming before you with a lot of case law here you know the government is touting virtually zero and i understand why but it's different the sense that that was a revocation and you might say that doesn't matter to us but it should matter when the a b c suspen event reinstates later on down the line and what do we do at least give us information like you do in a revocation the executive orders clear they have give you the whole file i've had cases and they give you tons of doc and say give me everything they have and then we get a he just canceled his clearance he would gotten so much more process this would have taken place quickly and then i would have been out of work for fifteen months and it's wrong that someone with a suspension should be out of work and unpaid longer than someone who for whom a proposed cancellation you consider the law but i think there's something that needs to be looked at because this court has a lot of case law regarding the whole you know robbing i'd like to see the same case without the suspension and i ask the reinstated we just made an error when you get fifteen months back you know if if there is a legitimate valid indefinite suspension in my hypothetical there's there's no in taiwan that there's no statute that gives a right to the to the pay for the period of a valid indefinite suspension if the indefinite and there's a decision that you are indeed indefinitely suspended and then the investigation goes on and alternately it's concluded no this this individual did not engage in the misconduct that was alleged  that kind of a case you do not get back pay because there is a legitimate indefinite suspension from your job because you do not have a condition of employment which is a security clearance and you are not able to perform any of your duties during that period when you are being investigated for misconduct what is the difference between that and cancellation of a security clearance a few months and in which turns out applies now if you are proposed to revoke your security clearance then you are suspended from your duties you're not doing your duties because you don't have a security clearance but the proposal is to revoke permanently so you're you're not doing your job you're not getting paid but you have the procedures under the executive order which would give you certain documents and in certain cases hearing now the consequences where there is a rebel cation of a security clearance are much greater than the consequences where it's just being suspended while you're being investigated where there is a proposal to revoke it if it is indeed revoked you have no draw you have no prospect of ever returning to that job now that's very different from the case here where mr gross was being investigated for misconduct and as your honor pointed out he knows what's being alleged the board based its decision on two key documents in the record those are the proposal which is a pages seventy to seventy two and the january twenty ninth memo which is that page a seventy six of the appendix now the proposal does identify the misconduct that's being alleged and it explains that there has been information provided that he misused his office and then in the january twenty ninth memel there's further specific i don't see how that isn't providing sufficient notice yes sure we break that was where you agree that the combined information was sufficient and i did want to clarify that he did have an opportunity to make a response to these allegations for example if mr gross wanted to say that wasn't me you've got the wrong man ok he had that opportunity and he didn't he didn't use it the written response begins at page eighty seventy of the record and it makes no response to the allegations of misconduct now i you know frankly that's not surprising he knows he's being investigated he knows why he's being investigated he knows as a da investigator he's going to be interviewed he's going to be interviewed by the  excuse me i see i gave the wrong i'm sorry your honor i gave you the wrong cite that's myra the written response in the record inspector general is going to be doing is doing an investigation and kind of just a paper that he will be interviewed at some point during that investigation and in fact he was subjected to several interviews by the o inspector general in two thousand and sixteen and two thousand and seventeen then i'd also like to clarify that the eventual findings with regard to the misconduct did include an authorised employment and the findings with respect to the misconduct are also included in the administrators record that was before the board so there really only are two issues for the court did he have sufficient notice yes he did that there's the this case is very very different from the china case who knows exactly what misconduct is being alleged even knows the source of the allegations he's told that at a meeting the general counsel for the university of michigan informed the assistant united states attorney of the misconduct in question and this is at a time when mr  is supervising an investigation of the university of michigan and also in the record is the information that after this this comes out that to discovery of of documents underlying the suspension of the support of the security clearance and this court has already addressed that issue and said that there is no right to discovery of the underlying documents and i'd like to just point out that the board has a specific opinion on that and if that opinion is in the record beginning at page ninety three counsel when you raise issues that he doesn't raise and that we didn't raise you know open the door for him to address those issues on rebuttal had you not gone down this road he would not have been permitted to raise this issue in his reply i'm sorry i'm not a missing an oral argument right now about this discovery he never raised this issue in his presentation to us today well your honor then if that's the case i  are i'm trying to teach you something about oral argument if you don't raise if he doesn't raise an issue and then you don't raise that issue he doesn't get to stand up on rebuttal and raise the issue for the first time your honor i understood his argument differently i'm sorry i underst him to address the discovery of documents so i heard it differently i apologize and i apologize if i missed it  process and also violating the confidentiality agreement with that's a very big deal too i look at the same way in mr rush was not in a meeting he was never to me there's nothing in the record that suggests he was at a meeting when this was allegedly disclosed to the only thing he has is that one paragraph and that's what i'm here fighting about that's what i'm here to say look something's wrong we don't even get any documents we'll even get any information beyond that he was never given a perspective he was giving nothing the only doctors he was given that they decide official also said during a stop as issue i received nothing else either i don't know and mr for all the security control guy the same thing the only thing i have is here i was here in a case in front of judge walton eighty five years ago anothe similar issue not quite the same issue here and ahead of do with whether or not we had an opportunity to to supposed to decide a fish you know these things are cropping up and coming and the point is i think the court may need to look for an opportunity car something out maybe you can i don't know maybe i'm being overly optimistic and hopeful that you can say wait a second some slip in the cracks because we have we have ploys that are not getting paid significant a long time period i've had some recently for