that was pretextual i'm just trying to make sure i understand what your argument is is that that in the sentence you just gave was the conclusion that he posed a unique national security interest so in the proposal to indefinitely  by robert burkhardt correct or not but thank you i will make sure i understood the what we're talking about yes that's right and regarding the whistleblower protection act claim the supreme court has made a fired i shouldn't have and that is sufficient to preserve and exhaust whistleblower protection act claims title seven claim any any time i got eighty eight claims just by raising the personnel discrimination claim and because i got fired the action there being fired your position is that accurately exhaust because we liberally construed his complain a incorrect is that right i think the fact that right now in iraq meaning incorrectly should have been fired right and that in your mind is adequate to reprise serve a whistleblower crime and i understand that that's the position you've got to make because that the fact can you can you come back to if you would for a minute where we started your sort of argument here in essence is that the reasons given by mr burke are in this may two thousand and five or pretextual and we know that based on the subsequent findings of the administrators of judge why are all of those why why are we allowed to even do that in light of eagan those are the reasons given for revoking his  security clearance there the same reasons that are given for not allowing him to return to any station and even seems to tell us that you don't get to do that even if after the fact you're proven correct this court may be an administrative judge does that this court don't get evaluate the validity of the national security threat that your client reasons for revoking the classified the security clearance are the same reasons given for why your client was a danger in any position i mean i read burkhardt's order as saying your client poses a national security risk wherever he is in the building it makes no difference because he's trying to record and transmit classified information and we can't have him in the building and the reason we can't have him in the building are the exact same ones that he can't have a security clearance and so we're those two are the same i don't believe even permits that i what i don't understand is why we're allowed to say you know i think you agree we can't question the  security based on these reasons i hope you accept that but what i don't understand is why we can attack those very same reasons when they form a conclusion that having your client work at all in the building poses a national security risk because it's the security kind of process is concerned with classified information that the national security rest comes that the classified information exposure of the class information end guys engagement understand they later fine but it least allegedly engaged in very serious misconduct that the determination is made that that's that those reasons mean he can't even be in the building because we can't trust him to stay in the unclassified areas we can't trust him at all and it but if those reasons are the same for the nine social security clearance i don't see how you get permits us to review those at all because fundamentally we're reasons for preventing him from going to non sensitive position or putting him somewhere without not none of that upon what egan was talking about or security you know and after you get past the if you look at our case law and jim eleven others it says we can review if there is a clear statutory regulatory obligation to play someone in a another position non security position and burkhardt's letter he goes into extensive detail to say we don't have any of this and i don't see any evidence from your client to the contrary we have the historical practice of the army at that time nineteen years where they it reassigned or g says goes through and gives the reasons why your guy what he ultimately concludes is rootin sion in any duty status would be detrimental to national security interests and he gives a list of reasons five of them why your guy is and i took judge agee's question to be where in the record was your rebuttal of those five reasons which happened to be to same reasons that your client's national security commander of the r t c is never an actor never recommended that any clearance be revoked so your case in all cases all cases that you referred to not one of the employees took any overt action but that of compromise class he can necessarily resolve the retaliation claim because in theory the retaliation claim could be independent of the reasons given for the security clearance revocation you're going to say what i'm saying  the application of would you agree that if for instance there does not appear to be here if there were army regulations for example said if we discharge discipline pending the resolution or something to that effect if you hadn't had a regulation that said that that would be an exception to the that's entirely correct your honor and i think that's consistent with this court's decision  is possible in this particular case there is no such regulatory or statutory scheme that way instruct army consider transfer to a nonsense this isn't and that particular case where there is no such for that there was some sort or of a de facto practice or policy of putting some other position while they were undergoing an administrative the determination was your response to understand but you say that is not overcome but why what about that argument does not overcome ian is it because it's premised on challenging the reasons burckhardt gave that's correct your honor necessarily depends upon the reasons for suspending the security clearance versus we could imagine a scenario where the decision to suspend it this individual was rowan's rationale i'm burckhardt rationale for were different i presume you agree that would be barred if you agree with that case but how do we distinguish how different they need to be or what would you propose sort of for us to look at  initiation in essence is challenging the reasons is that the that seems to be to turn that matter is the right phrase there in essence does that or does the cerro require that it be necessarily challenging the same reasons is there a distinction between those and your mom so the language and or sarah and i'm sure i was in are all sort of summarizing is it found that the reasons why the security is initiated dr campbell has never claimed you know mesh the question then so your response so they said your colleague response was you didn't put in the e e o c complaint your response to that is we put in the the decision and the decision addresses the claim dres then that's enough to meet our our burden and had they wish to rebut that by saying no no we included it in the complaint to the court just court just missed it that they could have done that and they did not and you presume because they could not absolutely your honor because you know we've put that in the very st motion to dismiss district or it does not matter what whether a lesser standard such as a motivating factor standard why because the districts were properly balanced that no reasonable theory defying that retaliatory animist played any role in the the plaintiffs did not have access to not classified positions period the department that he was working with just did not have nonhostile positions available i think that is important here because  he could have been reassigned so the only in korea could have been regarding whether or not the security clearance was wrongfully revoked here that's not the inquiry while he was talking about access to classified campbell's case that they could have done a i don't think helps you and you have to establish a definitive obligation for them to have done so that could be established through their prior practice from whether or not there's an obligation under jimmy all in the related cases to make a transfer to another position i think the burden is upon the employee to show that there is an obligation to be there and here it seems like to me the most you have is facto evidence that it may have happened before and we went through with the earlier argument whether or not these other yeah but you've got to come up with some kind of proffer of evidence you just can't say is a jury question you have an obligation to show something that's right and what we've shown is that employees that you both as being somehow similarly situated not one took any overt action that could have compromised classified information that's not rebut it in your case the fact right if you if you get your security clearance revoked for a dui that is different than if you get your security clearance revoked because you're selling you know classified information to foreign country write it you don't compare those two to as if they're the same right that they say under these circumstances your attention would be detrimental in national security interest but your attention duty status not not in a classified position that are to been revoked this is only allow reassignment and that's your point is that's undercut your point is that these reasons given were pretextual and the question and even understand you disagree with that is whether we get to look behind these reasons at all even if you think we should look behind