question which addresses the central issue in this case the principles set forth in the supreme court's decision even apply with equal force a determination that an employee is ineligible to occupy a national security sensitive position the determination that an employee is eligibility can be granted clearly consistent with the interests of national security as the supreme court explained in its decision and department of navy versus even the constitution that the president with the power to protect the national security which includes protecting our nation agencies to classify positions that sensitive and then to determine which individuals may occupy those positions clearly consistent with the interests of the national security but what this court is doing the supreme court is doing even is like i said interpreting the civil service reform and what this what did congress direct and empower the board to review our position here that wasn't even that that doesn't include the underlying national security eligibility determination the boards are view is limited to determining whether the position was zero limited that directs agencies to focus on those positions where there could be that material adverse effect on the national security and to designate those positions and i can see that all parties in this case agree that that issue is not for the there's a two what it called a two track process so there's section seventy five thirty two removal authority and then there's the authority that there's this an agency can remove an individual for cause and then seventy five thirteen a bias is in the heart of the how does is seventy five thirty two so i think they have independent existence of each section i don't i think that section three section eight have have bearing you know in all circumstances of our lives and whether we're they don't talk about removal specifically but what we have is an eligibility that the position requires that you be eligible for national security and position so when you lose that eligibility you're no longer able to hold that position at that point an agency can remove you simply because you haven't met one of the requirements for your mission to the remove all authority is not under seventy five thirty two it's a for cause or no but the cause is that and it's an example of the supreme court describing even with respect to security clearances the cause is that you no longer have something or hired for your i think about it a little more and say well this person is quite a clean slate so how can i really trust this person to get the job done that can be cabin dependent not very easily into a truck or the wor facility where there is a security concern that's been raised now an idea that is a separate facility that makes that determination so it would not be if you're a supervisor who wants to get rid of an employee it's not a very good way to go about it because you've got to give the information to the security folks and they make an independent determination they value with that information they decide whether further investigation is required so there is that separation this court recognize that and has the vision that there is a separation between those who are making the security determinations and those supervisors who may be in a position who misconduct when it's for performance the board of uses in exactly the same way it would end in even where the action is taken because of the revocation of an eligibility determination there still is a review of whether the parties proper procedures were followed in this court has a view  position he was moved to it on sensitive condition because there was one of bail and if that evolution was not the same grade and pay that had been the same grade of pay that would have been no adverse action which i think that never a sion of the average action itself from the eligibility determination given given your concession that they are things that are revealed by the poor and which is which includes those issues and problems procedures and whether or not the position once was in fact classified as sensitive regulations that that you're going to make public that are going to help define the circumstances under which you make those kinds of determination some are that's the case that they're going to be public bring relations that discuss how these determinations are made why would that be any making the weighing of risk determining what's an acceptable margin in britain and what service that the simply because that's not that's not been this close to something we argue we don't have to you know we won't don't disclose and that's that will be imperiled if we're if the board orders are not refuted now rather than if we're forced to go back you know one of the things that you are repeatedly saying as i understand it is that you view designation of a sense of position as coa understand that from the new regs that you just a minute the o p m right because it only has two categories number one secret confidential information number two not having access to classified but potentially cause significant damage to national security numbers so no one could be designated this sensitive it allows for the designation of positions as sensitive which has nothing to do with national security for example fiduciary responsibilities contracting this already you know there are a whole list of things here and then there's a great catch all any o position in the component the head of the component or designee would like to designate it so that it's currently the regs as applied to the individuals involved in this case do not limit designation of sensitive positions to people who have a serious impact on national security so why should he can be extended to every position of d o d has here too for designated a sensitive when it may very well be the case that many of those designations are not on the basis of national security but i think even even though the list there doesn't have national security in each one do you need employees are part of a mission of preserving the military strength of the united states and so even but if we determine that the definition of sensitive extends to more than by the agency's own regulations national security interests and there's a question of whether we can should apply blanket lee to all positions designees a sensitive seems to me designation form which is done in the appendix j once you form one sixty five i see there are seven categories of boxes little national security none of which are checked for her position and then there is another box right under that was and then when you read the very fine print which i have taught my reading glasses for but when you read the very fine print it tells you that basically if you have any financial produce your responsibilities or contracting this already are covered if you're considered appropriately doesn't need sensitive if you simply have to do sure you are contracting this already that would meet with this criteria now i realize that's not the box check for misconduct but it goes to my bigger point which is here too for you seem to over designated the sensitive well beyond national security without even representing that national security because there were seven boxes you could have checked on this form for national security and none of them were checked what would what do we do with that what i think i mean the first thing i think if that the boards are very broad and they sweep in everybody so even if it even if this court has a hesitation about a certain area of a certain position i think the board's decision have to be reversed because the board has said you can only apply for there's x classified information and that we s honor i think that's not an issue for the court i think it's an issue for the for the executive branch the president could issue further policy directive executive orders well our designation might be an issue for the neglected branch we may be right that we we don't have the story to review that but what you're asking us to do is to take egan and apply it to all sensitive positions under the law she says they apply equally to the security clearance issue which was that issue in the can but if we decide that you're incorrect that is a designation sensitive is not consistently limited to national security cases by your own definition regulations and forms you allow for that designation and how does you can possibly apply those positions even i think i think they are two separate questions i mean you can apply where the president is acting to protect national security which the presidents have done in executive order ten four five zero and given the agency's discretion to make determinations of who is eligible to hold a sensitive position and i understand your honor ha think you know deforms talk about a lot of different things but the o t employees can do but they are employees of the department of defense when they are have access to the security system they have the ability to have the adverse effect on national security and  cannot review these cases or we can and whether it's discrimination under title sovereign or a whistleblower retaliation alleged how would that make a difference given your argument protection act the court looked at the legislative history and which actually addressed security plan because under some conclusions from that as i think the whistleblower protection act question is going to require the court to do an analysis of that sort in the future and so we've we've not taken a position here on that issue and i think it would be an issue that we have to grapple with in an appropriate case so no your answer is you don't actually have a textual basis for distinguishing the whistle blower situation twenty one the individual rights provision applies only to whistleblowers whistleblowers and nevertheless we're still within to get the possibility that at least i'm asking about is what basis might there be for a whistleblower case to security clearance are at all the same as we believe even demonstrates as well as coal in the case of the egan relies on as well as the executive orders controlling classified information classified information is in fact different special and is treated differently and going back to executives order one zero four five zero zero pm can't find any support there section six of that order is the removal power that is now seventy five thirty two and that is where it clearly consistent standard derives from congress set a different standard for adverse actions and that standard is in seventy five thirteen a and that standard said by congress is the efficiency of the service there is no conflict between these two standards because they that in these times of national security cases the m s p p would imply a more deferential standard i might write about that what i'm going we argue with the individual respondents argue the answer to that question we argue epithets and the suggestion in the brief but i think one that was made to point out cases where in these kinds of circumstances the board may very well defer and apply an arbitrary a reasonable standard or so forth and i just wondered if that's your answer here today exactly what the board will do which we believe is another reason why even should remain find and expansion should be left to congress so might we ought to consider this when we consider how the alternative the part are pressing for us in terms of resolving this case work when you're telling us we ought to do and therefore that the n s t be applying the standard conference of evidence standard to the types of cases just as it does based on the requirements for a position so if we are in a so if we are supposed to assume therefore on the other hand that there will be a more deferential standard of what is the textual basis for the application of different standards based upon different cases your honor i believe in part that would go to the image of you statutory authority to consider these cases in the first instance congress led to the board a great deal of discretion in certain types of cases that standard will not be the ethical standard and it will be more deferential standard that's applied we believe the basis for that is in the words case law itself i count point to the statute and what do you think the imposed standard of efficiency of the service that's the import of the the thomson case which is showing deference to the agency in terms of the agency gets to set the qualifications for the position so there is no standard if congress wanted to set a different standard as they did in chapter forty three they could have done so they have not superfund that is the standard so if a t s a inspector has relatives  sewing in your bravery you say it is similar similarly unpersuasive for o p m the hinges argument that egan should apply on speculation that employees without security clearances made in some are while not classifiable necessarily observable and if they tell their friends about those detection methods it can have a severe impact on the united states the problem with that argument iran is that it's not in the re if you look at it through out the can the court refers again and again the classified information and even in the passages they also view regarding national security they do indeed your honor but when you go to those particular passages  look at them in context for example five twenty seven of even where the court i believe uses the phrase national security information where the for use in broader language the court practices those passages by reference to the executive power to control classified information and then the court goes on to  that stands for the proposition that it's classified information that is the sunni and that is unique and that is special what can i ask local i mean if i was thinking about the president's responsibility to protect national security it would not occur to me to think that categorically information control is is separate and apart from all of their possible risks to national security it's true that  was about classified information but the question is why aren't other surrender to national security that a person without access to information is not subject to the same rationale not covered broad and undefined spectrum of cases and agencies that o p m is seeking to expand into cover and let us not forget although the case although the agency here is the department of defen the rule that o e m is asking for would be a government wide rule it would have to expand far beyond the department of defense of defense to agencies where there is no information in this record as to how they treat these types quickly been the one to control classified information to determine how it should be classified who should have access to it and how the access should be denied there's a specific executive order at the time of the can dealing with security issues that hasn't been covered in the same way by executive orders that is exactly right your honor that is the difference between executive order one zero four five zero and one three five two six and one two three five six which are the orders covering the classified information are so detail creating such a link the six staffers framework versus one zero four five six which stands for a general nationwide all settlement police were designated as non critical sensitive and i asked him there are those kinds of declamations in every federal agency that those employees would automatically come under this rubric of national security we believe that to be the case that the minute this rule anytime we have two conflicting we would be in a position of having two powers that we've now given to the government on the one hand the government has as we've seen and under review will power to designate a position  sensitive there is no way to bring that terminations to a neutral third party if now we add a third option where now these sensitive positions which we know very little about outside of the department of defense or now under the rubric of even across the board of the government then there is nothing to prevent a pope who your questions earlier were words indicating an agency  there there is insufficient evidence in this record to really answer that fully there are other agencies that we would not ordinarily i believe think of as national security agencies where they may be designated position as sensitive agriculture may have food and poultry inspectors for example they may say they have some interest in protecting the integrity of the american food supply do we now say that we can doesn't mean them insensitive and they should not is not an adverse action within the meaning of the c s r even if ultimately and as our affection would flow from that how do we draw a line between that that whole thing and and you adams cases cited in arteries that is the withdrawal of qualification where the board historically has been affirmed by this court has the power to review the merits of the withdrawal in the course of reviewing an adverse action for arising from that what's your basis for saying in your blue gray that if certain information poses an identifiable and serious risk to national security that it will more likely than not be classified because your own executive order one three five to six requires that that type that exact a civic type of information be classed so as the purpose of that order so the observations by the  person on the border who sees means and methods of determining whether somebody suspected is a terrorist how does that get classified if i were to see that my time is please answer the question thank you're right it would be speculation for me to say and my speculation would be there are going to be post orders there are going to be there's going to be paper issued by that agency indicating a rotation of assignments methods of detection all of those types of things it may be that that agency stands in a position to classify that information i can say that because that evidence absent from the record i think cases that we have in front of us with how much of your argument would be an attack on the same conclusion applied just to d o d as opposed to the broader more sweeping because as respect to the intelligence component of the department of defense to eliminate them as p p review why doesn't the fact that congress gave that limited authority which it says should be rarely authority that they're seeking here that blanket authority doesn't extend across the board to all d o d employees it certainly does and it shows the congress a spoke in it throughout the history of the civil service la emergency seventy five thirty two provision was not a sufficient and hansard answer and again the question is why the security clearance situation is different from the eligibility for a sensitive position situation well and needed neither one particularly statutory rape you said being where the board said in the egan decision that the statue seventy five twelve and thirteen does not address the underlying determination and the court picked up on the supreme court picked article both cole and he and both both cases the supreme court recognized that access to classified information is a special case it's a special case because you can even if the board were to have  commissary the very same physical cage and at a lower paying job that's the north of cape could not do that even can you imagine putting me telling him book you are a national security race but we're going sensitive in a special set to the position of those positions which deity defined as a person having the ability of potential to cause inestimable damage to national security so i appreciate that that didn't get the case clearly sensitive information about transportation security and possible terrorist plot and the court issued a decision remanded back to the ford to consider the whistleblower aspect of that case clearly that case is more sensitive than you know  employees in the congress presumably aware of that certainly aware of that has chosen to provide that misty review any do you agree with the other counsel for the government that is sensitive designation with a national secure the concern you probably heard through the questions i asked or my my concern was that certainly the new o p m regs would line that up completely clearly but the old d o d rights which are the ones that applies to these employees and in fact the forms of side of these employees have a whole bunch of boxes which would enable d o d to designate something insensitive that seems to have no apparent relationship to national security just money for example  responsibilities and you can understand why that would be sensitive in the broader says the national security but not national security so i guess my question to you is do you agree with the other counsel for the government when she represented that know everything that he needed to sensitive security issues and then none of them are checked so it's certainly problematic but the board takes the position that it cannot be due to the designation of the position sensitive under whatever factory they come up with and it's apparent from their involving national security or do you believe that the d o t has allowed itself to designate citizens as sensitive that don't necessarily impact national security why does it certainly appears to be the case that there are you know in congress especially that they may have gone beyond national security with executive order they're basing it on says it does have to be a national security concern it is ten for business very specific about so that i mean that is a concern specialists are able to gain information about troop movements populations of the base and so on and that that information could be used by someone to interfere with military operations do you disagree with that you said break after that  think my hope my counsel mentioned quite a few times that the record wasn't developed in these cases and that that's true with respect to other agencies but the board positions are very broad and the board has said clearly that it's going to a way to have a material adverse effect on the national security as well