people were contracted to the national security agency out of the issue arose as to security clearances in the year two thousand and one mr harris along with the others  i understand it below you presented two issues to the mere existence protection one issue was whether in fact he was removed for cause so as to trigger so as to trigger their taking back his benefits it then the second issue was whether or not he was entitled to a waiver if you will of the requirement that he pay back the eighty some odd thousand dollars that it received for any alternative yes or right now they ruled against you on the first point and that's presented that in an appeal here i think they also said however they were going to reach the second issue because they said that p m not yet finally decided that and there's a made thirty one two thousand and six letter in the in the in the record that was sent to the board by o p m saying we'll settle this case on the basis that w reassess the situation down the road so to speak now are you appealing both those rulings namely the ruling well i know you are pretty sure he repealing the ruling that there was a removal for cause the deferment if you will the way i read an eighty three forty six b issue i guess yes or well the argument basically is that all if you take a position that m harris is entitle to his pension as he is fully vested having reached the age of fifty five and having had over thirty years of credible service then the argument basically would be that every month collection of that for a certain period of time and will reassess the situation at such time is a deferred annuity right would kick in right now when you search for social security  y right that says well that no but they'll say they said in that letter that will we assess the situation and but what i'm saying is that the mere existence protection board said we can't consider the issue of whether there should be a waiver of the requirement to repay because it's not final yet presumably in view of these communications from o p m are you challenging that jurisdictional ruling same time you're not waive the downstream your right to claim a statutory waiver on the entire record i  indication that his pension was at any time subject to attack or with at any time in jeopardy he did not back in two thousand and one take an appeal of the personnel action did is they told him what to do and they didn't do it have to give you can notice of the consequences i do not see anything where he was told or advised that his pension was in jeopardy but it stopper won't work for you will  stop court and neither did that cement a robot and so it turns it turns you tell me doesn't it turn on whether there was cause for his  removal since he did not go and get the security clearance that he was required to give that is correct however the again the issue is was he fully advisor with you where the fact that had he not see i don't know where that takes us but they take it your way that it was not stoppable detrimental reliance won't work so that takes us back to the fundamental question of whether it is removed for cause having been put on notice at least of what he was required to do and he didn't do it however the actions taking away his vested the army took the position that they is action against them this time barred the judge agreed but it's looking at the record as it stands which clearly says we're terminating for cross what we're saying actually is if you're going to terminate him for cause which they did and say as a result of our terminating you for cause we're not going to have your job anymore but we will let you out the door and you can have your discontinue service retirement provided look at nice legs which essentially is what happened so your point is that adding minimum you should be able to interpose as a descents to the pension recovery action the issue of whether he was terminated for cause because if he was not terminated because then that the pension rights of these should be paid to or going further that had been terminated for cause was the offense of such magnitude that it should jeopardize his pension and that issue ever actually was raised until o p m somewhat unilaterally terminated his pension benefits upon review in this court is it open to  and the government brought action in the district court to recover tax refund i think this matter is distinguished somewhat from works in that it works at least had a he characterization of germans is correct it does appear that the mr baker saying he's not challenging in this court ruling of the board that it did not have jurisdiction to rule on is eighty three forty six  claim in his claim i guess under section three one point four one of the regulations but just to pick up briefly to close the loop on that  after he and i discussed that the judge young indicated to him that it was his understanding that he was not waiving the right to challenge  not granting a waiver in the future and you agree that at the point when the agency o p m does make its final cut on this that at that point if there is a denial of a waiver under eighty three forty six then presumably that o p m would recognize that maybe it was a responsible for his his decision then and he was and he was well i mean i could imagine that someone who said i could retire under the circumstances would forth under the statutory mandate which i believe is five u s c eighty three forty six but the question here as stated six facts which were a specific argument there may be some discussion of facts section but that actually gives a factual basis or challenge based on substantial  if i understand is oral argument and i would like to hear your response to that is that he is removed under these circumstances but he gets his get this pension no one says anything about the pension being in jeopardy and that's how the matter comes to rest then going over the records and discerning that he had been removed for cause this repayment action commenced so at that point he'd like to defend saying i really wasn't removed because i did that was in the circumstance but procedurally he's barred because the time has run and the board simply looking at records accurately determines from records he was removed for cause and since they them follow the statute follow the statute and say repayment is appropriate putting aside the statutory waiver but his point is that that's simply at a minimum they should have considered the basis six argument and finds that he that the petitioner was removed for doing it once a year for cause and i think that the facts in the record bear that out i don't see any challenge to that what happened was that the ship was ordered to they gave him the benefit of a look they they looked at it and determine a new that in fact he was removed because and the result therefore yes and that's in the record your honor and i don't see in the brief any specific substantial evidence factual challenge that this court can entertain with respect to that what i do see is the legal argument that the m s p can somehow we the requirement of a payment and that the  needs to be collected because it's already been paid i think richmond itself to us with that and i think also the words cases directly on point that doesn't need to be a statute for the government to rip cover money that is paid against that you know money is paid  is paid without a congressional appropriations out of the treasury and that is what is specifically stated and works and in fact in this circumstance congress has provided a means for someone to all of that which the board did consider i understand that sir but the seat civilian personnel board at the time also considered that and they discharge they removed what you're complaining about and i want to try to stand victor is that he was removed from this position right but not told at that time that the consequence of that removal would be denial of a pension rise further than that he was given a pension he applied for but i mean typically though i mean what i mean i think and correct me if i'm wrong but as i understand it under the statutes and regulations when a government employee is removed from this conduct the agency is required to say we're going to remove you here's why you're entitled to consideration before the deciding fishel and if the final decision is to remove you you have the right to appeal to the merit system's rejection but i don't think there's any case which is or body of law that supports the proposition that the agency has to tell the employee all of the negative consequences that will flow from the removal action your honor if i may this is under the civil service act mr harris h his pension rights he's met the requirements he's got over thirty years of service he's over fifty it's over fifty five years old now with regard to your position yes the government that buys you have been removed for cost this is the penalty that we are going to impose as a result of our determination you do have the right to go forward and appeal this if you don't like the penalty if you're saying people should have been told he should have been told he would not be eligible for the discontinued service and it would be right in other words he should have been told that this discontinued service knew that we were giving you in which checks are going to be good for every month for the rest of your life really isn't going to happen that way and you don't know that and it never happened