motion to dismiss the claim to the extent that it intruded upon eagan discretion however in both words he was careful to say that quote in all other respects the claims remain intact i took that as an instruction to the trial judge when the time came to scrutinize the facts as they stood at the time of the conclusion of discovery and determine which facts or which issues may or may not run afoul of eagan in this case that we believe was very very important to the claim of discrimination the facts that i would like to commend to the court on this issue one of the following during this time period which was prompted by retaliation of inspector clint's key for supporting the female officer what happened as by happenstance inspector concludes he was applying for his five year really obvious security clearance in november  eleven and the o p m the office of personnel management has the task of conducting the investigation and in this case they also conduct the field investigation and some other agencies that's different and they concluded at the conclusion of their investigation that has tax issues and his inadvertent failure to report his school board assignment were immaterial to the issue of the clearance and they recommended that his clarence be continued on at this point in time he was then kept in the dark and eventually relegated to the to the make in this building on april th of two thousand and eleven while the entire contrary as we call them of many officials undertook to try to get his security clearance revo the only decision maker the st decision maker they went to was o p m one answer and attorney who we claim is the hub of the spoke of the wheel of this conspiracy against inspector could ski he tried to get him to reconsider their decision regarding his clearance and they summarily refused then he asked why she had to get involved in an investigation of these underlying facts and they agreed and summarily concluded that there was nothing wrong and that what inspector kuklinski had said to o p m was the truth notwithstanding this from up on the information that they were given yes your honor and the facts never changed the fact of his having followed those taxes late and the fact of his admitting that he had neglected to report his to three thousand dollar school board position those facts were to determine by and found to be entirely and oculus the facts never changed so what was the status of his security clearance when he was relocated to the maintenance building it was intact was it was april th two thousand and eleven was it under investigation at all or it was it was under investigation by stronger deputy chief bailey and erwin and all of whom your honor have said in deposition that's not their job it's not their job but my point is is this a back up on particular investigation had been instead instituted just before not when it had it can be concluded very shortly thereafter my my point is this your honor there are couple of things to say about putting him in the maintenance shed and i'm going to divert just a little bit for a moment here that's exactly the case and have versus johnson this court said that a decision not to allow someone to go into a particular building because of a security clearance review is not something that's protected under reagan the same things were true with tory versus clipper that's also a case in which the f b i it wasn't the judgment with there was a guy i was where they addressed that and determined that he didn't stand the cold judgment right well there was true but that's what was the obstacle to that particular employee being able to go into the facility where the t v they needed to have them work and so in that case to trial court had to distinguish between egan and which in that case clearly had nothing to do with it and this prohibition on going in it's important for the court understand here and this is not necessarily that's what the government says however the testimony in the case is that the administrative suite of offices where inspector kuklinski had his office is segregated from the secure area of the board on depository you take away h access and he can't leave those offices and preliminary he's at an office adjacent to chief stringer so the decision to put him in the maintenance shed is not only bad it is your honor seem to indicate but there's no need for it because that that will allow him to have his own office and correct on the record get him did he not have in order to get to his office did he not have to pass through any area that w blanche statement that because his security clearance was under investigation he couldn't come into the facility but but my position is that in this case because of the there was no discovery allowed of lester leach now there's no prohibition under eagan to take the discovery and find out whether lester leach is really doing his job or whether he's just a puppet for all these other folks i want to emphasize that the facts never changed so i would want to ask lester leach you're sitting there and you are being imported by all these people when the facts don't change one bit to suspend the security clearance he issues a letter suspending his security clearance he cites the tax issue which has already been resolved he cites the outside employment which was already been resolved i finally sent a letter to leach and i said this is ridiculous you have to make a decision here all right so i'm going to appeal this and i'm going to bring an a p a action for your withholding a determination that he's entitled to and he responds his security clearance and he cites the very same information that he had cited before indicating that these matters had been resolved so as a matter of fact the evidence regarding his security clearance was already intact before these individuals who would need it they had no really investigating somebody security clearance put them on the ice and taxpayers in jurors would wonder why are they putting an inspector in this type of a circumstance with no duties there was testimony from condi stringer that we didn't even know who was supposed to p m has to make the determination as to whether that fact suggests he's looking beyond his means that is subject to scrutiny or or or other fashion and they concluded that he wasn't and he also has an obligation to report his financial status every year which he did on a regular basis and i must emphasize that when the o p m review if a company stringer said there's no reason not to give them a security clearance so i view on this issue is that no one considered hill versus johnson that we're entitled to an application of hill versus johnson by the trial judge that the act that the total carte blanche dismissal of all of these facts as related to the discrimination claim is an error of law and that frankly we should be permitted further discovery because discovery doesn't offend eagan discovery about whether they followed the procedures whether lester leach says i was just doing it because they wanted me to determine in fact that there was a violation of federal regulation he was being investigated for potential criminal violation because it is a violation of federal law to willfully not file tax returns but the conclusions were that he had in fact violated the regulations that was referred then over to the security clearance department was that both and that was before april th of two thousand and eleven that was after april th of two thousand and eleven so on was pending what was conducts its investigation which the red flags are raised with those findings it is then referred on april th the rip out their ballots to the office of inspector general for the department of treasury they then conduct the law enforcement investigation into whether these red flags amounted to tensional criminal it on during this time is security clearance as a security clearance has not been revoked however his police authority was revoked and the mr kuklinski did testify that that was appropriate procedures that when a not the police officer such as themself is under a large investigation police authority is suspended when that suspension occurred he was no longer added when was the police authority april that was in april yes ok yes and i do ron also correct the record there is no evidence that plaintiff's offices somehow were segregated he did have to go through very heightened security to even access those offices within the actual wm depository there's the main building which is what we've all seen in pop culture where the golden store that's where his offices were and you have to go through several layers of security and you cannot such in the context of that building so he would eat could have been placed on administrative leave like many police officers are in this case they moved him to a less secure building it's still a building a hit the houses the maintenance staff and other people their offices in there but where is there anything is there i got a handbook or is there something written that if you don't have or use authority it's inappropriate for you to be in this building i do not know i'm not aware of their testimony i it is their testimony that's known it was by the deputy chief of police bill bailey that he had to be removed from that facility at that time and there was also testimony from the field chief the person in charge of the facility that he had to be removed at that time there's no evidence suggesting that that is incorrect i'm not aware of anything in writing as i stand here today but that is the position of the mint is that a police officer under law under investigation loses their authority and that's not contested here  and that he had to be removed from the facility at that point in time if that argument on my seventeen were no i g completed its investigation and found there was a violation that argument did not change at that point because then it was turned over to the  security division mr leach for their determination as to whether or not it should be suspended and in fact the decision by mr leach was yes it should be suspended and that's what occurred in november  and why was it not reinstated until march of two presumably they were engaged in fact finding at that time we were opposing him argue that he had already made up his mind  t the clearance should have been issue with kept from being issued by people who didn't like him well that i mean i don't think the record supports that and certainly there is and this is where we you know run up against the even analysis tenenbaum and subsequently inhale title seven there is a preclusion on security clearance issues unlike in hale which was a rehabilitation act case the rehabilitation act does not contain this national security clearance prohibition so we were trying to balance between the two in discovery and he engaged in discovery we gave him everything up and we did not give him westerly each and he approached the court to seek mr leach's deposition the person making that the terminations the court said you cannot go there even precludes and we believe that's absolutely correct and consistent with even inconsistent with this court's holding in hell and ten bomb hell was a case where it was simply physical fitness had nothing to do with national security issues in hell they reiterated the fact that you can does preclude intrusion into this area that's exclusively within the executive branch security clearances and ten a bomb i think is an excellent opinion because it was not a rehabilitation act case and it actually said the only time you can invade this is look we're looking for allegations of constitutional violations or allegations of security men in this case the treasury's directives on how policies and procedures good governing security clearances regulations none were alleged in this case the district court flag that for him not once not twice but three times and even after an amended complaint was followed filed following all of the discovery other than mr rancher discovery being completed they filed an amended complaint they still do not raise any violation of any policy any department of into washington d c yes and that's i think a very important point here and where i wanted to start this argument i think it is important for both sides because i think what we need to remember is this is a retaliation case this is a case where the the appellant is alleging that the u s mint took these actions because he was engaged in protected activity and the facts simply do not support that and if you go back to the security clearance issue if you go back to what actually was occurring before any protected activity before getting gauged in any protracted activity headquarters for the u s mint went down to fort knox because they were hearing that morale was terrible they conducted intervenes and they found that the appellant here was a ruthless harsh manager he was counseled on that again before any protected activity ever occurred and the counseling memo actually told him your conduct will no longer be acceptable if you wish to remain in this position and this goes on for many months for a couple years there is plenty of evidence throughout the record that the appellant was not capable of managing these employees that the employees were distraught they found it to be a ruthless and aggressive management style and that wasn't only the conclusions reached by the people who went down to investigate within the mint those were the but the relocation took place  three years after that and after they went down there to to investigate the morale i mean in other words if let's assume ok is terrible better jerde morales bad we're going to move him out why i mean why did it take so long i mean why why don't you just say about point we got it ok you're at it we've got to move someplace else well i think if the security clearance issue had not come up they would have and the fact is that the the appellant was the number two  number one in command at that one billion depository was removed had not had these issues with the security clearance and probably the appellant would have been removed but for the fact that this is a that this this window had happened where he was and then security clearance and they really couldn't take any action against him during that time because he had already been removed because his police powers were suspended but they did it was more than just three years i mean it was within a year that think some of the statements that i've heard are speculation and conjecture and i would remind the court and i think the court is well aware that you know it is helen's burden in this case to prove that he was retaliated against and this court has said what that definition is under the mcdonnell douglas test and post nasser you at the university of texas southwestern medical center st nassar it's a book for causation stander so the court in this case the district court found that he had established a prime aphasia case on four of the seven allegations the case decon aspect she did not address the district court did not address and that that was based solely on temporal proximity where really the heart of this case goes assume that the legitimate nondiscriminatory reasons given by the mint are acceptable so then the burden shifts back to the appellant the appellant has to show that those reasons and the actions taken because of those reasons have either no basis in fact that's not a here that the reasons were in the next insufficient to explain the employer's actions i don't think they're contesting that here so they were left with the proffered reason was not the actual reason for the employer's actions and there's nothing in the brief then there's nothing in the record that would suggest that they have demonstrated that that's the case here and we can go through each of the eight different enumerated ones one by one of the court lights but we did address that in our brief and there's the logical fallacy you know that's where this emerges there's no connection where he can demonstrate with the with the record that he has presented significant probative evidence that the proffered reasons offered by the men were not the actual reason and under nasser it's a but for standard in we talk about a judge ginsburg dissent which i think this court recognized in one of its cases where she says even if you have mixed motivating factors now no longer in  post nassar world will that rise to the level of actionable title seven retaliation it has to be the driving factor the only reason that this occurred and plaintiff is the appellant has not constitutional violation or potential regulatory violations and i think ten moms also instructive because it cites the th circuit for circuit decision sarah to say there is a case where actually the court said even precludes  anything related to the investigation of a security clearance and that's essentially the approach that the district court took here the district court did cite the sara and ten a mom and said this is where you can go in this is where you cannot go under in the discovery that  o'connor these are people in washington d c there's a commander constable who is also part of the d c those are the main decision makers afterwards he was able to depose early on and sure the general but i can't talk about i mean why is it just i can't talk about certain topics but i can explore whether he was actually motivated by violating a statute or whatever the exceptions would be for  why cut it off at the at the witness level as opposed to kind of a topic well because i think that's what he can says it's not just when you're dealing with security clearance issues and lester leaches only role in he's reporting us to the higher ups we want about here well i think i can ask you hey did you ever have a phone call were you ever asked whether to you know to revoke this guy's scary cards or what can i just explore those topics it up oh well because i think you can precludes it and i think if there's reference to ratigan which is the district court i'm sorry d c appellate court decision and they originally went down that path and then they backed off on rehearing and they said no even does preclude this only if they're materially false statements being made because there's a balancing act here employees have an obligation under executive order to make referrals related to national security clearance issues those are beyond title seven retaliation claims and judge kavanaugh at the time in his dissent and read again makes it very clear that he would have actually apply even across the board so in the context of lester leach we did allow to some degree the timing stringer's did you have communication what was your involvement the record does not exactly say what what was being presented here today the only thing counting stringer did was provide information in the context when asked which he also has a separate affirmative duty under the executive order to make referrals and that's something that egan even prevents discovery into in the context of title seven cases i see that my time is up investigation was completed may th two thousand and eleven the importance of that is that inspector constable solicited them to conduct that investigation by lying to them he told them that o p m was reopening their investigation in any event oh i g doesn't have a role in security clearance investigations and there's no evidence that lester leach suspended his security clearance because of the access and whether he should or whether he couldn't go into the building or not is something that we were entitled to a decision on by the district court and i think senior judge simpson anticipated that after discovery that was going to take place with respect to the revocation of his police powers that was done under a minute directive that says that you can only do that if you're investigating someone for a crime connie stringer said that she was investigating him for a crime the crime of fai his taxes now a jury can conclude that that's preposterous particularly when the o p m has already decided he's not a security clearance risk because he has two thousand six hundred dollars in back taxes and he's made a arrangement to repay that position is that we are entitled to a deposition but however on the facts that are before the court right now the evidence is that o p m clear to them that the facts never changed this is not a case where they were lying such as the ra case in the district of columbia this is a case where they were continuing to investigate him for facts that had already been established and did not result in a revocation of a security clearance they're simply lobbying lester leach and that's impermissible his assignment to d c three days before he got the sock the assignment to d c inspector stringer gets a email from constable he says i'm fixing worry i'm fixing things and on march st lester leach says your security clearance is reinstated that to me says that they're all in cahoots they're all in washington d c in their offices with lester leach lester leach gets my letter he's got to reinstate a security clearance before that letter is even signed they're coming up with another idea they're going to do a reassignment to washington d c the last complying