the third case in which will hear oral argument the smore ning is number zero six dash three one two four cheney versus the department of justice spitzer i see the eve reserved five minutes for rebuttal is that correct ok you can start whenever you're ready interested as the a c l u regularly come in and will represent someone in a case like this on a basis your honor where we are not often in this court this is my first time or in this court but we do especially here in that in the washington d c chapter of the a c l u i get involved in a fair number of cases involving the rights of government employees free speech rights to process rights part that so i just wanted to just wanted to make sure i understood understood that ok go ahead may please the court  of ages nine and ten under the heading analysis on page nine the administrative judge begins by correctly stated in congress as alston the united states court of appeals for the federal circuit stated that before placing an employee on enforced leave merely providing the employee with information that has access to classified information is being suspended without more does not provide the employee with suspicion sufficient information to make it to reply one  alston to be able to make an informed reply because he obviously knew the record makes it clear that he knew and he acknowledged that he knew what the medical condition was that it was an issue let me let me suggest an analogy to your honor  if a federal employee were arrested and charged with bank robbery on monday and released on bail on tuesday showed up at the workplace on wednesday and the employer said to him we're putting you on leave without pay  and this the reason is that we have reason to believe that you committed a felony he would know enough to make an informed reply if he said to the employer what felony are you talking about we would laugh at him i'm the other hand if same wednesday afternoon the employer calls in another employee who's never been arrested or charged with a crime and his life and says to the second employee we're putting you on suspension leave without pay because we have reason to believe you committed a felony and the employee said what are you talking about what crime do you think i committed and when and where we wouldn't laugh at him we would say he's entitled to sufficient notice so that he can respond  a query about this particular person was it a period back that particular telephone number a license plate number something so that he could say oh now i understand why you're concerned and here's why i made four parts to be made queried the other thing he pointed out in response to that particular information was as a as a supervisor as the resident agent in charge he didn't sit it computer keyboard and make these queries he didn't even have a password he would say to one of his many subordinates write a check on this person run a check on this telephone query on this license plate and somewhere else we do it so someone else at that store as we know someone else may be actual maybe they misunderstood his directions maybe somebody thought he was making an incorrect request but in fact he had a good reason how can he explain that to the agency so the agency can then make an informed and fair decision if the agency won't let  know the evidence with which he's being accused and simply saying we think you made inappropriate queries to the database tells you nothing more then than if someone said to me you know i think condition notion in the abstract your honor out of context i think one would have to say no it's not less specific but meaning always depends upon context there is no meaning without context the context of mr alston's case is that he plainly knew and this court relied upon he plainly knew what his medical condition was he submitted medical documentation to the to the agency either this court's opinion or the pain of the board below points out that  he and his lawyer negotiated with the agency about possibility of a medical leave they had interaction they knew what was on the table and in fact make an issue of it that the board at points out  court knowledge is in its opinion that mr austin did not claim that he didn't have enough information that wasn't his claim well it hypothetically mr cheney had asked for information regarding white b not necessarily prove quite well i think i think the answer is no not enough you have to at least one other back to that which is some reason to believe that bats the alleged misused at the agency with a problem with perhaps hypothetically he knew that he had misused the database in this particular occasion how does he know that's the misuse the agency is aware of and is worried about it might or might not be so it seems to me that even in that hypothetical that's not enough and of course there's absolutely nothing in this record to suggest that mr cheney knows of any particular misuse let's assume remaining hypothetical and that it once queried the database about his ex wife perhaps he had a perfectly valid reason to do that i don't think there's anything that says you assuming that he had to to to to to it to assume that he knew he misused it it really shifts the burden of proof completely here and the burden of notification from the agency to the individual it's like saying to to a criminal defendant we think you committed a crime you must know whether you've committed a crime and if you know then there's no need for an indictment to tell you the details of the time place and nature of the crime why don't you just confess and get it over with all the that's not our system constitution to give him due process and due process means that the government must not assume that he's guilty and knows what he's guilty of and that's the end of that why do we need a hearing or a trial the government must notify him of the charges or the allegations brief to be saying look if mr cheney had been given the information that you say he should have been given to defend himself and if the agency had said sorry we don't believe you were going to we think you did abuse the database and you didn't gauge in personal improper personal conduct i guess that's you know the charge on such and such a date you did this and they took away the security clearance you would agree that under that circumstance he would not have the right to challenge that determination and you would say neither could the challenge the determine of the nation of the agency solely within the agency and he wasn't given what he needed to exercise those limited rights that's exactly right you are and it's but it's a crucial distinction it's clear under the good that neither the board nor this court nor any court can second guess the agency's determination on the merits of a security clearance granted or revocation or suspension but even itself made clear and this court acknowledged that in  allston that such an employee an employee with a security clearance retains certain procedural protections and that the merit system protection work in this court sense to enforce those procedural protections the court talks in climate of a clearance and the satisfactory provision of the requisite procedural protection satisfactory provision and then later on page five thirty three it talks about how we in mr egan's case he received a notice of the reasons for protecting the procedural rights including the right to a sufficient notice and the right to respond to that notice mr st cyr into your look but aren't no you think you had some question so we'll give you your four we'll  in conjunction with this court's decision in past it is clear that the board and this court do not have within its their purview either the merits or the procedures used in the revocation or suspension of the security clearance those are questions left solely to the discretion of the executive what mr cheney is entitle to pursuant to process are the procedures versus down at the bottom of page six sixty one such notice provides the employee with an adequate opportunity to make you mean for replied to the agency before being placed on him for sleep reasons for the suspension of his access to classified information when that is reason for placing the employee on in force leave pending a decision and then it says such notice gives him adequate opportunity to make a meaningful response from the i mean certainly seems to say that in other words if someone has a security clearance ok and say for example they're told we're taking away your security clearance because you committed a felony ok is that enough it's your house they can't respond i mean how would you want to be in that position you have a security clearance ok i don't know if you do or not it's none of my business but assuming you have a security clearance and assume the the agency procedures give you the right when you are told that they're going to take your security clearance away they have to tell you the reasons and give you a chance to respond ok and if you just told you committed a felony without being told when or where or how does that give you a chance to respond it doesn't tell us if i understand your  committed what i committed when did i committed you have to tell me that otherwise i wouldn't be able to respond and they said no we're not going to tell you where does that leave the employee does not  either liberty or property trusts in the security clearance is no question about that but the the where the as i read alston and in some of these of the cases where the agency says there's no question that if if they tell you you robbed a bank on march the fourth and you come in and say no i did i was on vacation and they turns out they disbelieve you and they take away your security clearance and you lose a job there's no question you cannot challenge that before the board and you can't say anything about that's the end of it but if they set up a procedure whereby they say we will tell for going to take away your security clearance and we'll give you the reasons and the chance to respond that's on to about the process i mean how do you have any way to meaningfully respond if they say you've been charged with a felony so in other words if we're bound by alston do you lose the case why i mean it's a fair argument to say that alston is wrong and that if for some controls you score mr cheney did receive several reasons from the da for to explain why the security of your absolute lie still and they did they did tell him the reasons why they said but it's again it's like saying you committed a felony if you think they're a bit of a big they didn't they didn't give the information and alston is the earlier case so it controls over his assuming there was an inconsistency i mean if you want us to revisit all that's one thing but i i have a i have a different i mean it seems to me that if but where i am in the case is if it's good law and we have to follow it because it is our precedent at least for me and i can't speak for my colleagues on the panel it seems that there's a good argument for the proposition that mr cheney wasn't given what he needed i don't see how he could defend himself with what he was told those examples the employee received absolutely no reason whatsoever those are the only examples that we have of the time when employee has not received due process under the king versus a the month of april two thousand and two to now that would give him some specificity but again he's been employed was it he's been employed for eighteen years and how can he respond about not being told when he did something he wasn't supposed to do a great if he had been told that and he went in and they didn't believe him to be there but they say he has certain procedures here and i  april that you did this those interested because it is a possibility yes you see this was an ongoing investigation that information i'm speaking hypothetically here could have revealed details that would have compromised the further investigation as to the general fairness point the executive order that exists in this agency and was an active in the agenc discretion and setting forth the procedures that the executive has determined that we are entitled to in syria would give mr cheney the type of notice that he's requesting at the point when his security close notice and remove all i'm not sure i haven't seen and i don't know precisely what status is regarding the security clearance or his very adverse action has been upheld on notice that was equivalent to or less than what was here the closest example by far is austin garcia and i were not her words but i think i think the government suggests here that in the wake of king against alston we have a regime that one might characterize as notice light instead of you know the real notice provided by the civil service reform when you're in the security clearance world or you have to give this sort of a vague idea of what the allegations are sort of about and that's all the notice you need and where that comes from is the fact that in austin the allegation was was fairly was sufficient to enable the employee to make an informed response and that can only be judged on a case by case basis in that case did the employee have enough in hess the state department employee there was given forty to this court at the very end of its opinion that says the agency gave mr s considerable information about the incidents that led it to conclude he was a poor security risk the agency providing mr has to employ information about why it took the action if he didn't tell us and  incidents he got generalized phrases about violating rules but you really got no information even in the security clearance proceeding itself where we're not anyone here of course but under  executive order one two nine six eight government security clearances when an agency proposes to revoke a clearance section five point two one of the executive orders it it says that the employee shall be provided as comprehensive and detailed a written explanation of the basis for that conclusion if the national security interests of the united states are applicable or permit comprehensive and detail now i read and i was doing my brief there could be a case in which the agency would say interests of national security preclude us from telling you get any more detail what the patients are but surely they would have to be some burden on the agenc at least even if they don't have to you know explain it in a classified declarations to the court and certainly the united states knows how certainly i've seen this in a lot of my cases the united states knows how to submit a classified declaration to a court when it needs to married court i decided this case on on grounds that the government was going to say the government doesn't defend here i think the government didn't defend those grounds until this oral argument that is the met the ministry of judge said the agency told him his clearance has been suspended and that's all they had to do and in their brief the agency admitted that that was not good enough well in that case i think this court could not hold out alternative grounds ordinarily would have to remain but placed back where he would have been on it's january fourteenth two thousand and two but he doesn't have a security clearance he can't go back to work this court can't put him back on the job and the agency since it didn't give him proper notice should have maintained him on leave with pay until such point as it gave him his procedural protections it seems to me the proper remedy is back pay i mean his status should be leave with pay until such time as the agency gives him proper spitzer i'm a do one thing that's a little bit different to what we usually do here miss camilla you didn't have a good some additional time and i wanted to give you a chance to respond to the question about a remedy here if you could so  if if in other words obviously if we affirm that's the end of the case ok but a possibility is we disagree and i asked mr spencer what the result would be here if we disagreed with the board in other words we felt that if one felt that the procedural protections weren't afforded in that case what is i want to give you a chance those speak as to what you felt would be the remedy plus you still had some additional could could could not why not if he was improperly if if he was improperly suspended without pay if he didn't get the texans would we be entitled for that limited period for back the