we have five cases in the killing of this morning discovery and a hearing on the merits of the merits of the protection board given that there wasn't a discovery or factual determinations done at the lower proceeding i would like to narrow the primary issue for this case to stating generally that egan and it's cases state that security clearance determinations cannot be reviewed by the court the a j did not address of the fact that mr clarke was not challenging a decision from a security office question as to how the prior disciplines were relayed to the security office excuse me there was no back to the event that george talking about say again what event felt that mr clarke was improper or belligerent and the like that event was two weeks that event was relayed to the security office two weeks later was when mr clarke received a notice a statement of reasons that is cl believe it's a levin if i'm not mistaken that is a significant change in duties responsibilities or working conditions that are lance impacted as working conditions because of the events it triggered so it was the precursor event that triggered the damage interim removal of mr clarus clearance or at least the the tentative decision to suspend its clearance so it is the i hate to use the term the catch all that is at the end of the list which is the significant change and duties responsibilities and a clearance did impacts both his working conditions for what he was going to do in his new position because it could not apply for a higher level clearance that was required as well as the emotional impact under the  an employee who was a security clearance has an impact on their stability their ability to feel safe in their workplace because knowing if they have a disagreement with someone they can refer them to security office and who knows what happened thereafter i will know in the midst of judge's decision she found or she focused on the fact that a security clearance decision was made or not made therefore and therefore no jurisdiction so the judge did not actually properly frame the circuit court of appeals decision and ratigan ratigan does stand for the fact that decisions that are outside the security office outside dot tapper in this case you know d c m a security office don't have the deference that e would be a factual contention between the parties mr clarke does assert that the information jason smith relayed was patently false and knowingly false the parties i believe could agree that we dispute that fact and so that would be something warranting for texan act is broader than title seven title seven relates to materially adverse actions and it is narrowly tailored to material actions the federal circuit and the m s p be have consistently interpreted th be broadly interpreted at its foundation policy wise the w p a is not quite a for employment statute it is an encouragement for most of us to come forward it is an anti fraud statute is is there anything in there's a discussion in hast about what it calls the catch all provision and whether what was at issue there fell within the language i think at the time duties and responsibilities the working conditions got added there are also discussed in hast as an amendment but is there anything there that helps us decide one way or the other whether  transmission of information for purposes of a security review is a significant change in our duties responsibilities or working conditions i decisions of security office personnel it just focused on decisions of personnel with in the secret office of the agency so it is somewhat removed from the current case here which is if i may before that iron gate of national security right but why would that affect the interpretation of the cacho which isn't doesn't say anything particularly about who's making a decision with regard to security or not i thought has said something to the effect that kind of a qualification for the job is not a duty or responsibility of the job which would then maybe leave damages might be for emotional consequences doesn't necessarily make the emotional consequences a freestanding qualifier that is correct but i believe that it that issue has not been i guess an address that is what mr  asking for the panel to do is that by opening for damage commensurate damages it does add to the personnel action definition what can he a personnel action if it has to be something so finite such as so i have no problem answering any other question he has but you haven't talked about what i think is the nd good and secondary complaint that you have made to the effect that the  requirements the required security classification clearance was changed for the the project management review position yes  it and i guess i thought i remembered that i had the but at the end of the day there simply was no evidence that there was a change i will respond with and not even kind of threshold jurisdictional level of evidence sure i do have a sponsor who would just want to maintain some rebuttal time what i know my old life has gone on so to answer a question on that issue yes it is the it's and less that the position description changed it was that the requirements of the position or different than when mr clarke received it that as advertised to mr clarke before accepting the position there was no mentioning of having a ts c i or top secret secure classified information access for that position it wasn't until he got into the visitation that it was disclosed to him that his job duties would require fifty percent of the meetings that have to go to require a top secret clearance that he didn't have and so it was both a combination of the change in expectations as far as mr coroner stood them or a failure to disclose the conditions if they were already discussed known by the agency but not to mr clarke that is a factual question  a grounds for that but you don't think that work that has to do with the relationship with the security clearance carve out from our jurisdiction he the  personnel action the report the allegedly false reports from the supervisors really only would have affected him if it led to a adverse decision an adverse security clearance decision it did not at the end of the day he was its security clearance was upheld similarly during timing related lee during the time that quarreling with the security clearance process or d even with the security clearance self he's simply saying this could have an effect but only the only effect it could have would be was a report it was reported to the security office the security office evaluated him and determined that there is no problem what other effect could it that's that's what would we think would what he described you know for slightly over a year from june of one year to august of the next he was coming to work uncertain if his clearance was going to  oh that's true and it and he also claims that there was a delay in his ability to ted telling the top secret clearance which he needed for the new job because of this as well but both those things are good result of a security clearance determination the determination to investigate and the material the this information that was receiving the supervisor so it all ties back to the security clearance aspect of this i would say you think the extent of that broadly is that when you're yes and here is the other for claim the claim base of relating to the initiation of a security clearance process like here is the pledge false accusations there was an investigation and there was a decision against that incident though there was an attempt to bring an appeal just on the transmission of the information and the court said no we look at this as a as a unity we can't have a separate claim based simply on false information and here we have we have to go with the final decision which in this that case was is inconsistent good wilson because it brings up the because basically they've said this is a unity and you can't have this separate thing appeal and then at the end they did say and by the way if we if we were accepting it which we're not and they've already said they are going to we don't think you have he's claiming that pertain to the report we would have to reach in a position that opposite to what the clearance decision which was which was your ok to m r clarke so that would be in as inconsistent as the inconsistency rejected in wilson i think to follow wilson you could not and in the  legal approach to change do you have any problem with it well the basic problem with it probably is that this is the whole security whole security system system is partly based on a requirement that employees with classified information on who have had access to it or have security clearances are  on really required to report instances that they see of someone who perhaps shouldn't have security clearance and that would have a chilling effect on them if they knew about these employees remove all by itself can be challenge through an individual right about action which is to say it is a proposed remove all in the civil service system not a security clearance that's right get put it completely to it's and it's having the chilling effect on me that i while this is going on i can't really apply for a better job and you know i'm well  the higher security clearance was required it wasn't amended to his his system his position description but with the other agencies that they could look at and review some of them have this higher clear so we certainly can review that whether that they should have that her clearance problem that he alleges i take it that the people who worked the same supervisors conspired with these other agencies have this higher clearance but i doubt that's true but we're not factual error here of course but with respect to that that based on say he that it was there was misrepresentation if he took this job it's part of the course so he would have to claim that well they misled me because they didn't tell me i would need for some of but that would be a separate action and would not be within the jurisdiction of this what other remedies does someone and mr clore position can you think of any other way he could get a remedy that's the only one i can think you have an answer to the question i asked about putting the security aside is a proposed adverse action like a removal or suspension or any number of denial promotion or something like that removal would be considered a personnel action but here the again mr claridge challenges the actual report of the information to the security office and i think it's clear that there is no significant change  working conditions without the resulting security clearance determination whether it's proposed or actual there it is that security clearance determination that would constitute the alleged personnel action without it all you have is a report of information that may or may not be accurate and that simply just isn't a change in working conditions under tw and to address mr clarke's argument that there would be sort of a cloud hanging over him due to this alleged security clearance i think the the idea that  the court could review the security clearance determination because of the cloud is inconsistent even with the d c circuits opinion in ratigan which discusses executive order twelve was inconsistent with work could you speak just a little more flow was sorry your honor  i believe it's inconsistent with a radical instance question of the executive order twelve thousand and sixty eight which was the court's opinion went into great detail to discuss the executive order and how it was required and expected that if employees have any information relating to a potential security clearance issue with another employee that they are expected to report it and that you could in fact  if if those decisions were to be able to be reviewed  directly to wilson versus department of me this is the two thousand and sixteen decision although he claims to be challenging solely the record of the information again it's only one if that information leads to the initiation of classification change or not is there an allegation or evidence here that during his year or so in the job that he was idle for significant portions of the work time no you are i don't see there were some projects he couldn't work on because he didn't have the requisite clearance does that mean that he was you know two days a week or something he was sitting around doing nothing was he otherwise fully engaged on other projects  honor there's no we may not know there's no allegation in the record that i'm aware that he has claimed that he was idle for periods of time he does make an allegation that he might have received an outstanding mercifully successful in his performance rating but the performance rating is in the record at appendix pages three hundred and eighty one and three the two and you can see from the performance rating explanation that it does not mention the security clearance nor does it mention the number of is no personnel action outside the security clearance determination but to get to the security to determine its determination you have to apply even so there is a cyclical argument or a chicken and egg that does leave mr clarke without a remedy and that is why mr class the application of ratigan this goes to security clearance person are excuse me personnel with security clearances they are the employees of the federal government who have the most access to information to blow the whistle on there are also the employees with the least amount of rights applying began and applying down the path that agencies that argue a supervisor could not like the color of your tie refer you to the security office and there's nothing you can do about it so there has to be some determination as to before you get into that iron gate of national security that the employee has a remedy or that's their remedy lists which is what ratigan attempts to correct in the to prove an ira whistleblowing appeal which i have the burden of proof on rather than an enforcement agreement which has to agency has the burden i'm not aware of any statue or rule that requires employers to pick one avenue versus the other such as and it kind of waiver what we got what would be the available remedies in it and force me action retrospective monetary relief yes or no remedies generally and then is going to my understanding is there would be equitable so for example if the agency were to breach the agreement then it could be able to feed the possibility would be the judge have to go back to make a decision on the merits because the case would be reactivated if there were damages associated with the breach i do believe monetary damages are available but my understanding in my practice with most administrative forms most relief is equitable that it is the remission ation of the hoodie geisha on and sort of making the agreement go away i do have a couple more points and a minute permanent case that book agent does rely upon and wilson is not applicable to this particular case wilson focuses on an action initiated by individuals within the security office the intervenor d o step that ratigan asked us to take forward to provide a remedy so you don't think wilson isn't consistent vatican correct i believe wilson would be considered ratigan in so far as a timeline if you will for wilson starts