submitted the issue on the papers to the administrative law to the issue here your honor is whether due process in fact applies to the facts and circumstances in this case and if it does whether this court's decision in stone vs f b i c which relates to the issue of the consideration of deciding official of ex parte communications whether that muth really whether the supreme court's decision in the says you can't review we can't review the board can't review the basis underlying revocation the security judge i have i have no of the revocation or denial of a security clearance and that is not what i proposed to do here what i my argument is that there were certain documents that were absolutely essential to our ability to respond requested a microscope three and the agencies response was they don't exist and they were very very critical documents because the the essential allegation here was an unlikely ally not just the it's clear that the documents were produced it's clear that the government has said they were produced because we couldn't find wait i don't think we have any basis for assuming that the government's fitting to us about that latter t the responses to the agency your client tried to explain that these episodes were misunderstood or they didn't happen that it was either pre to charge them drinks or somebody else charges that that is correct your honor my question is what more would you have read about it if you had the documents because there's nothing in the documents that's being alleged against you that you don't know responding well judge i'm not sure that that's true i agree with a lot of what your honor said it was a substantial amount of material provided to us and i got a complete view from the three counsel sudden missions exactly why your client felt that this was trumped up the stuff that happened at the tree again i'm just trying to judge we have no problem with the stuff that had that happened at the training center because we acknowledge that we were given all of those documents there's no question about that but the main issue and i would suggest that the most serious allegation in the case was that he lacked candor in his ninety nine for nine hundred ninety five applications in the secret service he applied to the secret service back in ninety four ninety five he was rejected and he then went with other federal law enforcement of already and in two thousand and two again applied to the united states secret  far the most serious allegations made against him when we received the material i noticed that we didn't get any material in the one nine hundred ninety four ninety nine ninety five questions the application was not there the background investigation was not there there were no interviews and the polygraph was not there which was very very critical i requested and the answer was we don't have now the problem is they may not have that but they will lie because that notice of determination is filled with recklessness to those so that application that background investigation as a matter of fact seventy five percent i would say of the serious allegations in there are from those applications and that is can you produce to the documentary record wherein the security clearances rule so i know how much reliance is being put on the ninety four ninety five stuff as opposed to the jury i think you have to look at what's referred to as the agency would have determined that access to classified information should be nigh de soleil on the what i call the school the episode as opposed to the earlier when judge i think we know the answer to that because before they went the security clearance route they tried to quiet him for misconduct the misconduct that your honor is referring to at the training facility at that point all that was in any way they actually allege that engaged in criminal conduct at the training facility because he played a private on a fellow student because he had had a few drinks and actually charged the bar tab what made me think of that what you just said because that suggests to me that if in fact they had based on this incident that occurred at the training center there and if based on that they had proceeded to issue a notice  there is they're trying to do indirectly what they couldn't do with the records they tried to remove they realize that the stuff that happened at the prating academy was never applied in front of an administrative law judge because it just wasn't very serious with basically a e i would not have the argument that they're trying to do indirectly what they can't do but it's not hard to conjure up a real real world situation where an agency official learns of some alleged misconduct and so beautifully says well we better do title seventy five more about the congo and all of a sudden the agency is the now one who's in charge of security clearances finds out about this parenthesis we don't want insulated from all of the events that went before when they were proceeding with the with the revocation he was given notice a lot of things in the initial notice the complaint of the neighbor other things then when the basis case the this this court held that if you have a security verification proceeding accompanied by a forced leave situation like an indefinite suspension due process doesn't apply and in this case on the same day that he received the notice of determination that a security clearance was being removed he also received the proposed indefinite suspension based on how the ratification of security there is a question of them or want to be assured that some of those documents don't exist but assume that the government was able to deliver a certificate saying they were destroyed by fire right they either that they they have weak we don't have or they're relying on documents which were how much was not actually in the documents didn't exhibit did you make any attempt to find out who the people in need and she wor to them obviously somebody took notes from these documents they identified who that person was that was the proposing the official who drafted the notice of the terminations i try to depose or it was  by the agency and rejected on a motion to compel by the administrative law judge i tried to find out all about and i was borked that's why i made the hearing because with all of the process issues and without any discovery of issues i wasn't going anywhere the no documents were withheld it's one thing to say that the court can't have a because the court can review but isn't that quite different from saying that the person who's affected by his own documents is also entitle to be deprived of well first of all there's no requirement in five u s c section seventy five thirteen that the documents behind the secret services decision actually be produced it just requires a detailed statement that the risk can respond and i think in the join appendix there is a very detailed statement to which mr typically estimate a very detailed fly both written and oral if the secret service internal regulations that require the secret service to produce  you think there is a presumption if documents are missing innocently missing or losses or presumption that they've been destroyed but nor do i think that there's a presumption that their contents they rely on a summary that was produced for mr convict yet and the analysis will that's not possible you know that's not sufficient evidence that's not due process but that's really goes to that that that age an agency had written at some point in time and had a later point in time that memorandum was digested and the original memorandum of law and the agency relies on the  big similar situation is if this document which is that page twenty boys twenty five which is the digest of someone's assessment of the cribbage applications it instead of being a digest is simply said this is based on  upon misconduct rather than security clearance or as a supreme court even noted a security clearance the term nation is a discretionary judgment call that is committed by law to the program executive branch a having the necessary expertise to and also supposes that court and what they make their determination o do we have any way of knowing how much weight the agency placed on the document of page twenty four twenty five to remove your security clearance as opposed to the alleged cranking up o his decision was made on the lack of candor as reflected at the scripted series of his security forces that's a j ninety nine and that's basically the man to make a decision on the security scare your opinion irresponsible behavior right and then he goes on