[00:00:17] Speaker ?:
There we go.

[00:00:37] Speaker ?:
There we go.

[00:00:57] Speaker 03:
Okay, next case is Mansfield.

[00:01:00] Speaker 03:
Council, prepare to go forward.

[00:01:02] Speaker 01:
Yes, Your Honor.

[00:01:05] Speaker 03:
Okay.

[00:01:05] Speaker 03:
Mr. Kirkpatrick?

[00:01:07] Speaker 01:
Yes, Joel Kirkpatrick, Your Honors.

[00:01:09] Speaker 03:
You're reserving five minutes.

[00:01:11] Speaker 01:
I am, Your Honor.

[00:01:11] Speaker 01:
Thank you.

[00:01:13] Speaker 01:
May it please the Court?

[00:01:14] Speaker 01:
This matter is a pretty narrow issue, I think, before the Court.

[00:01:19] Speaker 01:
I think the difference between what the government's position is, is that my client believes that he was entitled to due process during the Mayor Board proceeding.

[00:01:27] Speaker 01:
new process to try to find out if there's another punishment or another penalty that might be sufficient, a lesser penalty on the issue of whether or not he should be indefinitely suspended.

[00:01:38] Speaker 01:
And by way of back... He has to have a security clearance.

[00:01:40] Speaker 01:
That's correct.

[00:01:42] Speaker 01:
And he was challenging that, Your Honor.

[00:01:43] Speaker 01:
I'm sorry?

[00:01:44] Speaker 01:
He was challenging that, Your Honor.

[00:01:45] Speaker 01:
He was challenging that through a separate proceeding with the Department of Justice.

[00:01:49] Speaker 01:
He had appealed to the Department of Justice... He was challenging the withdrawal, co-carrying... Yes.

[00:01:56] Speaker 01:
Just by way of background to help you, the court... He's not challenging that he has to have one.

[00:02:01] Speaker 01:
No, he's not.

[00:02:02] Speaker 01:
That's never been our position.

[00:02:03] Speaker 01:
We've never tried to go into the merits of whether or not he should have a security clearance.

[00:02:07] Speaker 01:
I mean, I'm sorry, whether or not he should have... We're not challenging the merits of why they yanked his security clearance at this stage.

[00:02:15] Speaker 01:
This is, they just indefinitely suspended him.

[00:02:17] Speaker 01:
And the agency came in in February of 2013 and said, we're going to revoke your security clearance.

[00:02:23] Speaker 01:
We challenged that with the agency.

[00:02:25] Speaker 01:
In May 2013, they said, we are going to revoke now after we heard you.

[00:02:29] Speaker 01:
And we had an opportunity to challenge that to the Department of Justice, Maine Justice, the Access Review Committee.

[00:02:34] Speaker 01:
And that process didn't end until June of 2014.

[00:02:38] Speaker 01:
In the intermediate time, when my client came back from Bogota, actually he was in the Cartagena office, came back to Miami.

[00:02:46] Speaker 01:
put my client in a restricted duty.

[00:02:49] Speaker 01:
And he did a lot of duties, and it's laid out in my brief.

[00:02:51] Speaker 01:
I can go into it if the court wants to see.

[00:02:53] Speaker 01:
We saw it.

[00:02:53] Speaker 01:
Yeah, you saw it.

[00:02:54] Speaker 01:
So the point is that my client wanted to challenge the indefinite suspension.

[00:03:00] Speaker 01:
He said, look, I've been working.

[00:03:02] Speaker 01:
I've been doing what I've been asked.

[00:03:03] Speaker 01:
The agency has no problem with me participating in doing work here in Miami.

[00:03:09] Speaker 01:
He was no longer assigned to a group, but he was assigned to the division office and doing all the things that you saw.

[00:03:14] Speaker 01:
And we wanted an opportunity to stay in that position pending the resolution of the Access Review Committee.

[00:03:19] Speaker 01:
Now, the charge down below when the indefinite suspension occurred didn't allow us to do discovery.

[00:03:25] Speaker 02:
Do you agree or disagree with the notion that the position that he was occupying while in this indefinite suspension is one that required him to have the security clearance that had been suspended?

[00:03:44] Speaker 01:
I don't think it did, Your Honor.

[00:03:45] Speaker 01:
I think the issue is this.

[00:03:47] Speaker 01:
The agency found a place to put him while he was in this thing.

[00:03:51] Speaker 02:
But that might have been just essentially an act of grace or charity or something that says, we know basically we're violating our own requirement, but we're not going to send him home without pay.

[00:04:08] Speaker 02:
It's a kindness.

[00:04:10] Speaker 02:
But that they could just as easily have said security clearance suspended, go home now.

[00:04:18] Speaker 03:
Are you saying that doing that waives any right of the agency to require security clearance in that position from then on?

[00:04:26] Speaker 01:
I would use the word this way.

[00:04:28] Speaker 01:
I would use the concept of waiving to the fact that they did.

[00:04:31] Speaker 01:
I think we have to step back and realize the agency was not required

[00:04:35] Speaker 01:
There's no mandate from Congress that they must put him on indefinite suspension.

[00:04:40] Speaker 01:
It's a decision that they make.

[00:04:42] Speaker 01:
And if they put my client, which they did, on this other grace, as the court said, they essentially said, you can do this job.

[00:04:49] Speaker 01:
And he did it well.

[00:04:50] Speaker 01:
He had outstanding reviews while he was doing this.

[00:04:52] Speaker 01:
And as the court has recognized in cases such as Kreiner's cited in my brief, that this is a big deal.

[00:04:58] Speaker 01:
When you get suspended, you're not paid.

[00:05:00] Speaker 01:
You have a legitimate interest in employment.

[00:05:06] Speaker 04:
You said in your brief on page 20 that based on the record, it appears the deciding official did have the authority.

[00:05:13] Speaker 04:
Yes.

[00:05:14] Speaker 04:
Where in the record was that shown?

[00:05:16] Speaker 01:
Well, I think you- I got the whole record.

[00:05:20] Speaker 01:
Sure.

[00:05:20] Speaker 01:
Well, if you glean the fact that he had the authority to do that, then why is he a deciding official?

[00:05:25] Speaker 01:
Why would he have to come in and allow us the opportunity to be heard?

[00:05:28] Speaker 01:
If he didn't have the authority to say, I can put you in another, I can decide I'm not going to indefinitely suspend you, I'm going to leave you in this position because you're doing a great thing for the agency.

[00:05:37] Speaker 04:
Some deciding officials have limited authority.

[00:05:40] Speaker 04:
It may well have been that whoever made the decision to let him come to Miami was a higher up.

[00:05:46] Speaker 04:
Somebody up above the deciding official who said, even though that position requires a security clearance, we're going to let him do it.

[00:05:53] Speaker 03:
Right.

[00:05:54] Speaker 04:
So I was just surprised that you concede that this deciding official did have authority.

[00:06:00] Speaker 04:
I would say that he fits into the footnote in the full NSPB opinion.

[00:06:05] Speaker 01:
Well, I guess maybe I mischaracterized what I'm trying to say.

[00:06:09] Speaker 01:
The agency didn't allow us to pursue and invoke the discretion as set forth in the case.

[00:06:15] Speaker 04:
What's the due process problem?

[00:06:19] Speaker 04:
You might not have been able to depose the deciding official on whether or not he was going to exercise his discretion, but you had given the deciding official all your arguments.

[00:06:28] Speaker 04:
The deciding official knew exactly page after page of your argument that this gentleman had come into Miami, had performed beautifully in Miami.

[00:06:37] Speaker 04:
He ought to be allowed to continue to be in Miami.

[00:06:40] Speaker 04:
There wasn't any further information that you're going to give the deciding official, right?

[00:06:45] Speaker 01:
Well, I would have been able to develop the record with the deposition.

[00:06:48] Speaker 04:
What kind of record?

[00:06:48] Speaker 04:
A record saying what you'd already said.

[00:06:51] Speaker 01:
Right.

[00:06:52] Speaker 04:
I mean, due process doesn't mean that you get to say the same thing over and over and over again.

[00:06:57] Speaker 01:
No, I understand that, Your Honor, but the design official said he didn't know what he was doing.

[00:07:00] Speaker 01:
He had no idea what he was doing, even after he saw our written submissions.

[00:07:05] Speaker 04:
He didn't say he had no idea what he was doing.

[00:07:07] Speaker 04:
He said he wasn't familiar until you gave to him in writing.

[00:07:12] Speaker 04:
He wasn't familiar with Mansfield's experiences in the Miami office, and probably no reason why he should have been.

[00:07:19] Speaker 04:
He wasn't in that line of command.

[00:07:21] Speaker 04:
But he never denied that he had read the materials that you submitted to him?

[00:07:26] Speaker 01:
I understand that, but I think to go back to what the judge, the administrative judge, allowed us to do and not allowed us to do greatly impacted what I could have developed on the record.

[00:07:36] Speaker 01:
and questioned him and said, well, look what he's doing.

[00:07:39] Speaker 01:
And the fact, the argument we're trying to make... Well, let me back up.

[00:07:42] Speaker 04:
What do we do with the situation that comes out of the Griffin case, our Griffin case after Egan, and after Griffin there's a subsequent case after Griffin deals with the situation of whether or not there's a specific

[00:07:55] Speaker 04:
agency regulation that says in these circumstances, if we can, we will put him in a position, right?

[00:08:02] Speaker 04:
We won't suspend him.

[00:08:03] Speaker 04:
And there is no such regulation extant in this case.

[00:08:08] Speaker 01:
You're saying that the agency didn't have some sort of regulation that we have to put them in there?

[00:08:14] Speaker 04:
I mean, the case law is Griffin and then Lyles decided on the same day as Griffin.

[00:08:20] Speaker 04:
Lyles goes into a situation where there was an express regulation of the agency that says, in this circumstance, that we'll put you in the other job if we have one.

[00:08:30] Speaker 04:
And our case law says that unless there is a regulation like that, the board has no jurisdiction, no power,

[00:08:38] Speaker 04:
to look at.

[00:08:40] Speaker 04:
So if the board has no power, there's no due process.

[00:08:46] Speaker 01:
Well, I think the board did say that in Builma.

[00:08:50] Speaker 01:
I think the board said have an opportunity to, you know, invoke the discretion.

[00:08:55] Speaker 04:
What I'm saying is the only way to square Builma with Griffin and Lyles is to say that Builma only applies in a situation where there is a regulation.

[00:09:05] Speaker 04:
that confers on the employee this entitlement to be considered for a job, in which case then you have to have due process.

[00:09:12] Speaker 01:
Well, I would suggest to the court that our ability not to pursue that deposition and opportunity to build the record.

[00:09:18] Speaker 04:
I mean, if there's no jurisdiction in the board to consider, then there's not going to be any opportunity for a hearing because there's no jurisdiction.

[00:09:25] Speaker 03:
You could have determined the regulation.

[00:09:27] Speaker 01:
Sure.

[00:09:28] Speaker 04:
I would just say to the court that since we didn't have an opportunity to develop that in the record, I guess... I mean, the law requires you, when you come up to the MSPB, to say, if I want a hearing on this topic, I need to be able to demonstrate there's a regulation there that the agency will have to follow.

[00:09:45] Speaker 03:
And you could have developed the existence of the regulation if it existed.

[00:09:49] Speaker 04:
Yeah.

[00:09:50] Speaker 04:
You didn't need... That process you have to do on your own.

[00:09:55] Speaker 01:
Yeah, I think it's very difficult to do some of these things that the court's suggesting here.

[00:10:00] Speaker 01:
I guess I'm looking at it very narrowly.

[00:10:02] Speaker 04:
I mean, finding out whether or not the Department of Justice or DEA has such a regulation takes a few minutes at your computer.

[00:10:09] Speaker 04:
I love that it's not there.

[00:10:11] Speaker 04:
And you have a finding in this record that it's not there.

[00:10:15] Speaker 04:
There are no such regulations.

[00:10:17] Speaker 04:
I guess I would ask... For me, I don't see how you get past our case law, Griffin and Lyles.

[00:10:25] Speaker 01:
I understand what the court said.

[00:10:29] Speaker 01:
I just think it really bears down on the fact at what point does the agency, can the agency just walk into an employee's office and drop a paper on their desk that you're indefinitely suspended, you can't even challenge it, you can't even develop the record, you can't even see if there's something else that I can do or another position when they've obviously put him in that position for a significant period of time.

[00:10:47] Speaker 01:
I think it's an issue for the court to maybe chew on.

[00:10:51] Speaker 03:
How do you deal with that?

[00:10:52] Speaker 03:
overarching policy articulated in Egan and in Barry about the governmental interests.

[00:11:04] Speaker 01:
I understand that.

[00:11:05] Speaker 01:
I would say that I think the government's position is that we're trying to somehow dig into the merits of the underlying issue on the security suspension.

[00:11:14] Speaker 01:
That's not what we're doing here.

[00:11:15] Speaker 01:
We're just saying, look, we want to stay working.

[00:11:19] Speaker 01:
I'm doing this job.

[00:11:20] Speaker 01:
I've been in this position for a long time.

[00:11:22] Speaker 01:
and I'm doing what you want me to do, and we can go to June of 2014 and determine that.

[00:11:28] Speaker 01:
I mean, he faced two removal proceedings.

[00:11:31] Speaker 04:
In this sequence, I gather at some stage in the game when the security clearance issue was finally adjudicated adversely to him, he was removed?

[00:11:38] Speaker 01:
He was not removed, Your Honor.

[00:11:40] Speaker 01:
There was a proposal to remove him for the security clearance being eventually adjudicated, not in his favor, in June of 2014.

[00:11:49] Speaker 01:
he actually retired, or I should say he resigned from the agency in December 2014.

[00:11:53] Speaker 01:
Just so you know you're in here.

[00:11:59] Speaker 01:
I'll just reserve that and answer any other questions.

[00:12:22] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:12:25] Speaker 00:
As Your Honor mentioned, this case fits squarely within this Court's jurisprudence.

[00:12:30] Speaker 00:
In this Court and Board's review of Mr. Mansfield's indefinite suspension, it's limited to whether the security clearance or eligibility for access to national security information was revoked, whether that was a requirement of his position, and whether the procedures of Section 7513 were followed.

[00:12:46] Speaker 00:
Egan, Cheney, Hess, Gargiulo, and Wiles.

[00:12:49] Speaker 02:
Can I ask what

[00:12:51] Speaker 02:
Under what authority did you allow him to stay in the job after the security clearance was revoked?

[00:12:58] Speaker 02:
Not permanently, but the initial one.

[00:13:00] Speaker 00:
Right.

[00:13:01] Speaker 00:
So under Jones, the agency has the discretion to indefinitely suspend while the agency was in the process of investigating the security clearance and whether the security clearance should be revoked.

[00:13:14] Speaker 00:
But this court has found in Skis that the agency has the discretion to consider options for the agent, for the employee, and that it's within the agency's discretion to do so.

[00:13:23] Speaker 03:
And here, I want to emphasize that... But those options include leaving that person in place?

[00:13:29] Speaker 00:
Right.

[00:13:29] Speaker 00:
So what... I want to step back and explain what happened here.

[00:13:33] Speaker 00:
What happened here is that the agency proposed to revoke Mr. Mansfield's security clearance and had its internal procedures to make its final decision-making.

[00:13:42] Speaker 00:
And during that time period,

[00:13:43] Speaker 00:
Mr. Mansfield remained a special agent, but he wasn't doing the duties as a special agent.

[00:13:48] Speaker 00:
They found something for him to do.

[00:13:49] Speaker 00:
They found him to do some recruiting.

[00:13:52] Speaker 00:
They gave him some duties with regard to... I think it's clear in this case that all jobs require security clearance.

[00:14:02] Speaker 00:
Yes, that's right, Your Honor.

[00:14:03] Speaker 04:
I think that's what goes to run along.

[00:14:05] Speaker 04:
I understood him to be asking, well, if all jobs require security clearance, once his security clearance has been suspended, how can he be employed?

[00:14:12] Speaker 00:
Well, so his security clearance had not been finally revoked.

[00:14:15] Speaker 00:
So I want to emphasize that this was the agency procedure to determine whether his security clearance should be revoked.

[00:14:20] Speaker 00:
Once his security clearance was finally revoked, his agency began remove our, excuse me, indefinite suspension

[00:14:28] Speaker 00:
proceedings and pursuant to 7513 to take an adverse employment action.

[00:14:32] Speaker 02:
As I understand, tell me if I'm wrong, that in February or February 1st, I think in 2013, his access to national security information was in fact revoked while the agency was undergoing the consideration of whether that should be made permanent.

[00:14:48] Speaker 00:
Well, it was preliminarily suspended.

[00:14:51] Speaker 00:
The agency hadn't made its final determination as to whether it should be revoked.

[00:14:57] Speaker 03:
that he cannot access that information.

[00:15:00] Speaker 03:
NCIS, whatever it is, I don't know.

[00:15:03] Speaker 00:
Well, I mean, he did not have, he could not, his eligibility for access to national security information was preliminarily suspended.

[00:15:11] Speaker 00:
So yes, he couldn't access national security information now.

[00:15:14] Speaker 03:
But he's doing, is he not still doing a job that allows him access to that information?

[00:15:20] Speaker 00:
The information that he has access to are recruits files.

[00:15:26] Speaker 00:
non-drug-related inventory information.

[00:15:30] Speaker 00:
Limited duties he was having.

[00:15:34] Speaker 00:
The agency was trying to find something for him to do while he received his due process.

[00:15:39] Speaker 04:
This is not an agency decision where... I should have been able to do that right down to the time I retired.

[00:15:49] Speaker 00:
That was not, the agency was not putting him in a position, a permanent position that was something that they could keep him on doing.

[00:15:55] Speaker 00:
They were providing him due process, and because they were providing him due process, they didn't indefinitely suspend him immediately.

[00:16:02] Speaker 00:
They provided him, again, something to do, they gave him some work to do, and they paid him for doing that work.

[00:16:07] Speaker 04:
They kind of suspended him on the same day.

[00:16:10] Speaker 04:
Absolutely they could have.

[00:16:12] Speaker 04:
They made the security clerk's initial decision.

[00:16:14] Speaker 00:
Right, and this court in Skiz has said that the agency has the discretion to attempt to find something for the employee to do.

[00:16:22] Speaker 00:
It's not waived, it hasn't lost its ability to revoke.

[00:16:26] Speaker 04:
Well, you could have suspended me, but you didn't.

[00:16:28] Speaker 04:
You kept me on the job, right?

[00:16:30] Speaker 04:
And I have a property interest in my job, and then in June you took my job away.

[00:16:37] Speaker 04:
And you can't do that without giving me due process.

[00:16:39] Speaker 00:
Well, certainly he would need due process.

[00:16:42] Speaker 00:
He was given due process in 7513.

[00:16:44] Speaker 00:
He was given the procedures of 7513 before he was removed.

[00:16:49] Speaker 00:
The agency gave him due process before he was indefinitely suspended.

[00:16:52] Speaker 00:
The agency gave him due process before he was indefinitely suspended.

[00:16:55] Speaker 04:
Well, he's saying that on your BUILD note, the board says due process includes the opportunity to confront my deciding official.

[00:17:03] Speaker 04:
And to, and to make, plead my case to a deciding official.

[00:17:08] Speaker 04:
But he's not, sorry.

[00:17:09] Speaker 04:
Excuse me.

[00:17:10] Speaker 04:
Continue.

[00:17:10] Speaker 04:
Isn't that what the illness says he can do?

[00:17:13] Speaker 00:
Well, he did have the ability to confront the deciding official.

[00:17:16] Speaker 00:
There is no dispute that 7513 proceedings were.

[00:17:19] Speaker 04:
But the number of questions he could ask him were limited.

[00:17:22] Speaker 00:
Right, but he was never making an argument below, and in his brief he actually admits that he did not make an argument that he was denied access to the deciding official with the authority to consider alternatives to the extent those alternatives existed.

[00:17:40] Speaker 00:
There is no argument made that the deciding official was the wrong deciding official.

[00:17:46] Speaker 04:
His argument was that when he wanted to depose Reed, he said, I want to depose Reed on four questions.

[00:17:53] Speaker 04:
And they said, no, you can only impose him on three questions.

[00:17:57] Speaker 04:
And the one question that was left behind was whether or not he could talk with Reed about whether or not he should have been left in this position of grace or whatever you want to call it.

[00:18:07] Speaker 00:
So the two things he was asking the permission to depose the deciding official were whether other positions were feasible and whether he could be kept on with his proceeding.

[00:18:22] Speaker 00:
And that involved reassignment of Mr. Mansfield to a permanent position

[00:18:29] Speaker 00:
and not necessarily just work that he was, he wasn't doing work as a physician.

[00:18:34] Speaker 00:
He was basically given work while he was on.

[00:18:37] Speaker 04:
He's asking for a series of alternatives.

[00:18:39] Speaker 04:
He's saying, you know, and then you've got, you're looking at, you're going to suspend me.

[00:18:43] Speaker 04:
I'd like to talk about whether there's another job I could get, or could I just be left where I was?

[00:18:48] Speaker 00:
Right, but those issues are not, he doesn't have a due process right to those questions, because those questions would go to,

[00:18:54] Speaker 00:
what the feasibility of reassignment would be, what the feasibility of his alternatives should be, and the board has no authority to, and the agency has, first of all, the agency has no requirement to do that.

[00:19:07] Speaker 04:
What do you rely on for the agency being able to say that it doesn't have any authority to look at that?

[00:19:12] Speaker 04:
Is this Griffin and Lyles?

[00:19:13] Speaker 00:
Griffin and Lyles has case after case that states

[00:19:16] Speaker 00:
that the agency cannot be compelled, absent statute or regulation, cannot be compelled to reassign or that those reassignment questions, in fact, I believe that Griffin uses the term feasibility of reassignment, that the agency is not required to do and that the board has no authority and no role to review that.

[00:19:36] Speaker 04:
So the issues that Mr. Mansfield wanted- He draws a distinction between being reassigned and being left where he wants.

[00:19:42] Speaker 00:
Right, but the thing is, when he was put in that position, I would stress that that was not a reassignment.

[00:19:50] Speaker 00:
That was not placing him in another position.

[00:19:52] Speaker 00:
He was still a special agent.

[00:19:54] Speaker 00:
He was still in that position as a special agent.

[00:19:58] Speaker 04:
I'm a special agent with no capital on S and no capital on A because my security clearance has been suspended.

[00:20:05] Speaker 04:
But I want to remain a little SA.

[00:20:07] Speaker 00:
He wanted to remain in doing duties that the DA found for him to do.

[00:20:14] Speaker 04:
The government found to be so satisfactory that they complimented him on the six to eight month service he did.

[00:20:20] Speaker 04:
He said, I just want the government to do more of that.

[00:20:23] Speaker 00:
Again, I believe this runs up into this court's jurisprudence as far as the alternatives to indefinite suspension.

[00:20:34] Speaker 00:
This court has held that it is

[00:20:36] Speaker 00:
to send the agency's authority to indefinitely suspend an employee when security and clearance is revoked or suspended.

[00:20:47] Speaker 00:
The board has no role in reviewing the alternatives to that removal or that suspension.

[00:20:53] Speaker 00:
So what he's asking, in effect, is for the agency to consider alternatives

[00:20:59] Speaker 00:
to permanently reassign him to some position, create some position that has some sort of duties that they come up with on a permanent basis.

[00:21:08] Speaker 04:
Is the process that the board is currently providing in their BULMA restricted to those cases where you have a Lyles type regulation?

[00:21:20] Speaker 00:
I'm not aware of a board decision that involves, that would imply BULMA and that reasoning.

[00:21:28] Speaker 00:
to a situation where there is a statute of regulation.

[00:21:31] Speaker 00:
I'm not aware of a board decision.

[00:21:33] Speaker 04:
Well, if you were affording the kind of process that's offered under BUELMA in a circumstance where there was no Lyles-like regulation, wouldn't you be exercising jurisdiction where you're not supposed to?

[00:21:48] Speaker 00:
I'm not sure.

[00:21:49] Speaker 00:
So the question is whether Wellma would apply.

[00:21:51] Speaker 04:
I assume you agree that after Egan, Griffin and Lyles say that the board doesn't have any jurisdiction, has no authority.

[00:22:01] Speaker 04:
There's no authority.

[00:22:02] Speaker 04:
No authority to even open its mouth absent a regulation such as there existed in Lyles.

[00:22:11] Speaker 00:
has no ability, has no authority to compel the agency to consider reassignment absent of statute of regulations.

[00:22:17] Speaker 04:
The subject matter is there is no, no jurisdiction means you can't do anything.

[00:22:21] Speaker 04:
You have to, like in the earlier argument, we have no jurisdiction, we have to get up and leave.

[00:22:27] Speaker 04:
So, one of my questions is how can the board in Gula

[00:22:33] Speaker 04:
purport to offer due process rights except in a situation where the employee has been able to demonstrate that there's a Lyles-type regulation that confers jurisdiction on the board to consider reassignment or being in an authentic position.

[00:22:51] Speaker 00:
I think that would involve the Department of Justice taking a position on well-know, which we haven't done yet.

[00:22:57] Speaker 00:
I'm not aware of a case where

[00:22:59] Speaker 04:
I'm not sure... Bull is being argued to us as authorities as to why Mr. Mansfield has some due process rights here.

[00:23:09] Speaker 04:
He disagrees with the footnote for whatever it is in the full board opinion.

[00:23:14] Speaker 00:
I can think of a hypothetical where there would be some due process

[00:23:22] Speaker 00:
that would be a gloss on 7513.

[00:23:25] Speaker 00:
I can't think of one.

[00:23:28] Speaker 00:
I'm not prepared to say that Wellner was wrong.

[00:23:31] Speaker 00:
I think the idea that, I don't think we would disagree, but I again don't want to take a position for the Department of Justice, but I don't think we would disagree.

[00:23:41] Speaker 04:
What do you understand Griffin and Lyles to be telling us about the board's authority in the circumstances of this case?

[00:23:50] Speaker 00:
I don't think we would say as a matter of law that there would never be a situation where there would be a due process review because 7513 is part of the analysis, right?

[00:24:01] Speaker 00:
And there are some due process, there's a due process law from 7513.

[00:24:06] Speaker 04:
The due process that gets assigned to these types of cases flows out of Egan, doesn't it?

[00:24:11] Speaker 04:
The Supreme Court says this is a circumstance in which there's very limited due process.

[00:24:17] Speaker 00:
Correct, but that would be the security clearance replication proceedings.

[00:24:21] Speaker 04:
And in Griffin, Arthur put a big gloss on Egan.

[00:24:25] Speaker 00:
Right.

[00:24:25] Speaker 00:
Right.

[00:24:26] Speaker 00:
And that would have to do with the suspensions or removal.

[00:24:29] Speaker 00:
Right.

[00:24:30] Speaker 00:
And that's what we have here.

[00:24:31] Speaker 00:
Right.

[00:24:32] Speaker 00:
Yeah.

[00:24:33] Speaker 00:
But I hesitate to say that there would never be a situation in which there would be an analysis of due process.

[00:24:40] Speaker 00:
But that would be within the confines of 7513.

[00:24:42] Speaker 00:
I don't want to say never.

[00:24:44] Speaker 00:
I just can't think of a hypothetical in which that would be the case.

[00:24:47] Speaker 04:
But I don't want to make that kind of blanket statement.

[00:25:02] Speaker 00:
I would say the analysis, yes, the analysis is, as the court is held over and over in the Supreme Court,

[00:25:08] Speaker 00:
The analysis is whether the security clearance or eligibility for access to national security information is a requirement of the position and whether that was revoked and whether the procedures of 7513 were complied with, absent a statute of regulation that require reassignment.

[00:25:28] Speaker 00:
We absolutely agree with that.

[00:25:38] Speaker 00:
Adding a gloss onto that, I can't take a position specifically, but it would seem to me, given the fact that the clear language of the court that it's limited as to what this court can review, absent a statute of regulation, there can't be that much room for Buelna to apply.

[00:25:55] Speaker 00:
And in fact, I would argue that 7513 provides more than enough due process such that whatever due process that is right that are concerned are covered under 7513.

[00:26:08] Speaker 03:
I would also point out that... You really should be arguing that at most it would be dictated.

[00:26:15] Speaker 00:
Yes, at most it would be dictated, Your Honor.

[00:26:18] Speaker 00:
That's right.

[00:26:19] Speaker 00:
The court doesn't need to reach that issue.

[00:26:20] Speaker 00:
What we have at issue here is a due process argument, but it's not a due process argument.

[00:26:27] Speaker 00:
What we have here is a situation where

[00:26:30] Speaker 00:
As the board found, there was no claim for a due process violation.

[00:26:33] Speaker 00:
Even assuming wellness applied, wellness says you have to invoke the discretion, the ability to invoke the discretion of the deciding official with the ability to consider alternatives.

[00:26:43] Speaker 00:
if infinity existed.

[00:26:45] Speaker 00:
There was no argument, there was no claim stated that Mr. Mansfield did not have that right to invoke the discretion of the deciding official.

[00:26:53] Speaker 00:
What he wants to do is ask to the fact, get discovery on, and by the way, he was allowed a lot of discovery and he was allowed to depose the deciding official.

[00:27:02] Speaker 00:
This is not where all discovery was prevented.

[00:27:04] Speaker 00:
But what he was seeking to

[00:27:07] Speaker 00:
get access to and to get discovery on is whether transfer was feasible, whether keeping him on current position was feasible.

[00:27:15] Speaker 00:
And those issues are not, those are not the due process issues covered by Dwellna.

[00:27:20] Speaker 00:
He admits in his brief, and you discussed that, that at most he has, and I see my time is up, at most he has the ability to invoke the discretion of the studying official, and that's not in dispute.

[00:27:30] Speaker 00:
Thank you, Your Honor.

[00:27:33] Speaker 03:
Thank you.

[00:27:34] Speaker 03:
Thank you for watching the call.

[00:27:38] Speaker 01:
Just briefly, Your Honor, a few things I want to comment on counsel said.

[00:27:45] Speaker 01:
Getting back to the Griffin-Liles, it's not an issue of whether an agency is compelled to put somebody in another spot.

[00:27:51] Speaker 01:
It's whether or not we can get the discretion of the deciding official to determine if they want to keep them there.

[00:27:57] Speaker 01:
This comes down to why we have a process.

[00:27:59] Speaker 01:
We have a process is that we're proposing to definitely suspend you, give an opportunity to be heard, written response to our response,

[00:28:06] Speaker 01:
And we want to keep you here.

[00:28:07] Speaker 01:
And then we have an opportunity to develop the record to see if possibly he can stay where he's at while he's doing this, while he's waiting.

[00:28:13] Speaker 01:
There's a reason to wait, because he had this ARC event that was going on that wasn't decided until June of 2014.

[00:28:22] Speaker 01:
That's it.

[00:28:23] Speaker 01:
And the issue is not whether we proved to you today or proved to the court below that we would have prevailed with that.

[00:28:30] Speaker 01:
We didn't get the opportunity to do that.

[00:28:32] Speaker 01:
That's what this is all about.

[00:28:33] Speaker 01:
It might be a small, narrow thing of due process.

[00:28:36] Speaker 01:
The other thing is that, you know, counsel characterized that he was basically a recruiting coordinator.

[00:28:42] Speaker 01:
He did a lot more things.

[00:28:43] Speaker 01:
And I think you'll find that none of what we presented in our briefs has ever been controverted by the agency, what he did.

[00:28:50] Speaker 01:
He had a lot of sensitive things.

[00:28:51] Speaker 01:
He did a lot of things.

[00:28:52] Speaker 01:
They had no problem with what he was doing.

[00:28:55] Speaker 01:
But I really have nothing else to add to the court, unless you have any questions.

[00:28:59] Speaker 01:
Thank you.

[00:29:00] Speaker 01:
Thank you.