[00:00:31] Speaker 00: The last case this afternoon is Sean Hornseth versus the Department of the Navy, 2018-11-88. [00:00:37] Speaker 00: Mr. Morris. [00:00:54] Speaker ?: Thank you. [00:01:00] Speaker 03: May it please court, I'm Jeremy Morris, counsel for the appellant, Sean Hornsteth. [00:01:05] Speaker 03: Mr. Hornsteth's position has been consistent before the Merit System Protection Board and in front of this court. [00:01:12] Speaker 03: And the claim is simply this, that it's well established that due process protections apply to adverse employment actions such as the one here. [00:01:20] Speaker 03: The due process requires a meaningful opportunity to be heard. [00:01:24] Speaker 03: And that part of that means in these types of cases that the deciding [00:01:30] Speaker 03: an official must have the authority to consider some alternative penalty. [00:01:34] Speaker 01: Well, the board has said that. [00:01:36] Speaker 01: The MSPB has said that. [00:01:38] Speaker 01: But we've never said that, right? [00:01:41] Speaker 03: There's no case in front of this court that's correct. [00:01:44] Speaker 03: It specifically says that there must be some alternative. [00:01:49] Speaker 03: That's correct. [00:01:49] Speaker 03: I think that's an issue of first impression for this court. [00:01:52] Speaker 04: Suppose that you were to have an agency or even a federal statute that just said [00:01:59] Speaker 04: Anyone who has been convicted of a felony cannot continue in employment with the federal government, period. [00:02:07] Speaker 04: And so somebody is convicted of a felony, and they go up and they say, please don't kick me out of my job. [00:02:14] Speaker 04: And the deciding official says, I don't have any choice. [00:02:18] Speaker 04: You're gone. [00:02:19] Speaker 04: That's what the statute says. [00:02:20] Speaker 04: Would that be a violation of due process? [00:02:22] Speaker 03: I think we have to take a step back and say, we know the due process is a flexible concept. [00:02:30] Speaker 04: That's got to have a yes or no answer. [00:02:32] Speaker 04: In your theory of the case, given that case, would you say that person has been deprived of due process because the decision maker didn't have the authority under the statute to give him his job back or any other job? [00:02:46] Speaker 03: I think it would depend. [00:02:48] Speaker 03: And I'll try to explain why I say that. [00:02:50] Speaker 03: Let's take an example, for instance, where you have someone who's been convicted of a felony and sentenced to life in prison. [00:02:57] Speaker 03: So we know that they can never come back to work. [00:02:59] Speaker 03: And so you have a statute that says if you're physically unable because you've been sentenced to a crime, you can never come back. [00:03:05] Speaker 03: In that case, I think the flexible nature of due process, you wouldn't have to have an alternative penalty there. [00:03:12] Speaker 03: It's essentially metaphysically impossible that that person is going to be able to come back to work. [00:03:16] Speaker 03: In your case, the only reason I say it depends is it would depend if the government previously said conviction doesn't disqualify you. [00:03:27] Speaker 04: And so that there had been a long history of the standing under... Congressman Nacks, as of today, a statute that says no employee, government employee who's been convicted of a felony can be employed by the government, period, end of statute. [00:03:46] Speaker 04: And then six weeks later, your client is convicted of a felony. [00:03:51] Speaker 04: Can your client claim lack of due process? [00:03:54] Speaker 03: I think so. [00:03:55] Speaker 03: And let me give you another example of that. [00:03:57] Speaker 03: What if this Congress enacted a statute that said every criminal defendant shall be considered guilty by a jury as long as they've been charged by a prosecuting authority? [00:04:07] Speaker 03: I dare say that would have a Sixth Amendment problem, but go ahead. [00:04:10] Speaker 03: Right. [00:04:10] Speaker 03: I mean, but that's the same kind of analysis. [00:04:13] Speaker 03: Just because Congress says something doesn't make any consistent with the process. [00:04:15] Speaker 01: Well, Congress says all the time that if you commit such and such a crime, the mandatory minimum sentence is five years. [00:04:21] Speaker 01: And the judge has no discretion in imposing the sentence? [00:04:25] Speaker 04: That doesn't make the judges... Some discretion above the minimum range, correct. [00:04:29] Speaker 04: But that doesn't mean the judge is not acting as an appropriate decision maker. [00:04:35] Speaker 03: Right. [00:04:35] Speaker 03: Let me see if I can come at your question from the back side, which is that we know from Laudermill, right, that the parameters of due process are not set by the statutes. [00:04:46] Speaker 03: We always have to look at the Constitution. [00:04:48] Speaker 03: So I think in your case, we have to look at the situation [00:04:52] Speaker 03: does that statute, how was it enacted, what was the law before? [00:04:55] Speaker 03: You have to kind of give some consideration to that. [00:04:57] Speaker 03: And in this case, I think that what you have to look at is that in prior years, there were alternatives here. [00:05:03] Speaker 03: We have the Merit System Protection Board cases that say you have to have an alternative, and I'll come back to that, I guess. [00:05:08] Speaker 03: But we have a situation where administrative leave was available as an alternative penalty. [00:05:14] Speaker 03: Then Congress changes that and says, no, you can only impose administrative leave for a very short period of time. [00:05:22] Speaker 03: So is that something that we just say, oh, Congress said it, and so that's good? [00:05:25] Speaker 03: Or is that a situation where we have to say, well, that's Congress essentially usurping or trying to trump the constitutional parameters of due process? [00:05:34] Speaker 04: So what you're suggesting is that Congress's limitation on administrative leave is unconstitutional? [00:05:41] Speaker 03: No, that's not what I'm saying at all. [00:05:42] Speaker 03: I'm saying that what they've essentially done is painted themselves into a corner. [00:05:46] Speaker 03: When they enacted that modification to the administrative leave [00:05:51] Speaker 03: length. [00:05:54] Speaker 03: That applies to a broad number of circumstances. [00:05:56] Speaker 03: One of the unintended consequences of that is it took away the sole alternative remedy in these very narrow number of indefinite suspension cases where the person works for a facility where there's no alternative positions available and things like that. [00:06:11] Speaker 03: So what the Navy needed to do before they proceeded with an indefinite suspension action was to ensure that there was some constitutional guarantee of an alternative [00:06:21] Speaker 03: penalty available? [00:06:24] Speaker 03: If that sort of answers your question from the backside. [00:06:27] Speaker 04: Well, I guess what you would then say with respect to my hypothetical is that if there were no alternative remedy, then the decision maker who told this guy, I don't have any choice, Congress has told me you've committed a felony. [00:06:42] Speaker 04: If you've committed a felony, you're out. [00:06:44] Speaker 04: That that would be a violation of due process. [00:06:47] Speaker 04: I think that's where the long answer ended up. [00:06:50] Speaker 03: Yeah, I think you would agree with me, perhaps. [00:06:54] Speaker 03: We could come up with a number of hypotheticals, I suppose. [00:06:56] Speaker 03: But what if we just came up with a hypothetical that said Congress came up with a statute that said in the adverse employment actions, the deciding official shall not change the decision of the commander. [00:07:14] Speaker 03: They can either find that it was met, but they can't change the penalty at all. [00:07:18] Speaker 03: Would that be sufficient just because Congress has put forth a statute that says that? [00:07:22] Speaker 03: I don't think so. [00:07:22] Speaker 03: I think you have to always take a step back and apply the math, these factors. [00:07:26] Speaker 03: What's the private interest? [00:07:27] Speaker 03: What's the government interest? [00:07:28] Speaker 03: What's the risk of an erroneous deprivation? [00:07:30] Speaker 03: You always, in any circumstance, have to take a step back and apply that. [00:07:34] Speaker 03: The reason I think it due process should apply here, notwithstanding the number of cases that say that it does, including one from this court, is that when you're dealing with an indefinite suspension [00:07:47] Speaker 03: based on a security clearance suspension, we're talking about things that are, to a certain degree, uncertain. [00:07:54] Speaker 03: The outcome of that parallel security clearance process, we don't know yet. [00:07:58] Speaker 03: It's been suspended. [00:07:59] Speaker 03: It hasn't reached its final termination through the PSAB. [00:08:04] Speaker 03: So the outcome's uncertain here. [00:08:05] Speaker 03: It's different than when the person's committed a felony and the statute says you've committed a felony. [00:08:11] Speaker 04: It can be on appeal. [00:08:12] Speaker 04: Well, then I guess that's the question. [00:08:15] Speaker 03: You know, we'd have to look at what does the statute mean. [00:08:16] Speaker 03: Does it have to mean you're convicted of a felony period and that's enough? [00:08:20] Speaker 03: Regardless of whether it's vacated? [00:08:22] Speaker 03: I mean, we have some, there can be some exceptions to that, but in that case, it's a pretty clear-cut situation. [00:08:27] Speaker 03: When we have the suspension that's, when you have the security clearance that's suspended, the outcome's a bit unclear here, right? [00:08:34] Speaker 03: It's just a different situation than if we had a security clearance that had already been revoked and the final determination had been made there. [00:08:41] Speaker 03: So we've got an outcome uncertain situation. [00:08:44] Speaker 03: We've got an indefinite suspension that's tied to that, right? [00:08:46] Speaker 03: The termination date for the indefinite suspension is when that process plays out. [00:08:51] Speaker 03: So there's a lot of unknowns here as opposed to a yes or a no question. [00:08:57] Speaker 03: We don't know the outcome of that process. [00:08:59] Speaker 04: And so what should the decision maker, assuming that the decision maker were to conclude that [00:09:07] Speaker 04: If she had authority to come up with a different penalty, what would be the penalty that you would think the decision-maker should have elected? [00:09:17] Speaker 04: Because I gather administrative leave was not available, even though the decision-maker believed that it was. [00:09:22] Speaker 03: Our whole argument is that there was not one available. [00:09:25] Speaker 03: That's the problem. [00:09:26] Speaker 04: Even though there was perhaps a misapprehension on the part of the decision-maker as to its availability. [00:09:31] Speaker 04: But OK. [00:09:33] Speaker 04: And we know that investigative leave, presumably, was not available. [00:09:38] Speaker 04: What should have happened to Mr. Harnsett? [00:09:42] Speaker 03: Well, the Navy had several choices. [00:09:44] Speaker 03: Number one, it could have waited to start the adverse action until the security clearance procedures had terminated. [00:09:52] Speaker 04: Well, but that would mean that he would have been in a security-sensitive position [00:10:01] Speaker 04: during a time when he didn't have a clearance. [00:10:03] Speaker 04: No, they could have put him on investigative leave. [00:10:06] Speaker 04: Investigative leave, let's assume, and I think it seems to be probably true, that investigative leave is not available. [00:10:13] Speaker 03: Right, but it's not available now because the adverse action has started. [00:10:16] Speaker 03: What I'm saying is the Navy could have taken a step back. [00:10:19] Speaker 03: Instead of even pursuing an adverse action, they could have said, we're going to put you on investigative leave, wait and see what happens on the security clearance, and then start the adverse action. [00:10:27] Speaker 03: And if you look at the [00:10:29] Speaker 03: the investigative leave statute and the now administrative leave statute. [00:10:33] Speaker 03: I mean, that's the process that the Congress has laid out in those new procedures, right? [00:10:39] Speaker 03: So when you receive detrimental information about the employee, you can put them on brief notice leave, put them on investigative leave, figure out if you want to take an adverse action or not, and then pursue that. [00:10:51] Speaker 03: So they could have done that in lieu of it. [00:10:53] Speaker 03: It could have. [00:10:53] Speaker 04: That isn't an option that was open to the decision maker. [00:10:56] Speaker 03: That's correct. [00:10:57] Speaker 03: And that's the problem. [00:10:57] Speaker 03: Right. [00:10:58] Speaker 04: So we're talking about here what options were available to the decision maker. [00:11:01] Speaker 04: So you're the decision maker in this case. [00:11:04] Speaker 04: What do you say to yourself, OK, what choice do I have? [00:11:08] Speaker 04: What should I do? [00:11:08] Speaker 04: My counsel has told me that I need to exercise a different option from simply saying suspension. [00:11:16] Speaker 03: Right. [00:11:16] Speaker 03: And the problem is the decision maker had no choice here. [00:11:19] Speaker 03: That's exactly the problem. [00:11:20] Speaker 03: That's why it wasn't a meaningful hearing. [00:11:22] Speaker 03: It was a rubber stamp. [00:11:23] Speaker 04: But that would have been true of anyone in the agency, would it not? [00:11:27] Speaker 04: Is there anyone in the agency that would have been in a different position from Mr. Combs? [00:11:32] Speaker 04: No. [00:11:32] Speaker 04: So there's no decision maker that could have, in your view, adjudicated this case. [00:11:38] Speaker 03: My problem is not with the decision maker as a person, it's with the process. [00:11:40] Speaker 03: I mean, they have not come up with, they've eliminated every alternative penalty available to the decision maker, whoever that is, and that's the problem. [00:11:49] Speaker 03: And I would just note, this court has decided [00:11:54] Speaker 03: in Gargiulo that due process does apply to an adverse action that's based on a security clearance. [00:12:02] Speaker 03: This court didn't address a specific issue that your honor asked me about, whether or not this court had ever said that an alternative had to be available. [00:12:08] Speaker 03: You have said the due process applies to an adverse action based on a security clearance in that case. [00:12:15] Speaker 03: And I'll reserve the rest of my time. [00:12:16] Speaker 00: We will hold it for you, Mr. Yale. [00:12:26] Speaker 02: May it please the court? [00:12:27] Speaker 02: I'd first like to address Judge Bryson's hypothetical. [00:12:31] Speaker 02: So if you look at Loudermill and even the Blena case from the board, there's no constitutional right for proceeding for leniency. [00:12:41] Speaker 02: I mean, the government doesn't have to provide a process for somebody to come in and argue that there needs to be leniency for that individual when the requirements [00:12:54] Speaker 02: are met. [00:12:55] Speaker 02: Constitutional due process just requires notice and an opportunity to be heard. [00:13:00] Speaker 04: Yes, but an opportunity to be heard in a meaningful way, right? [00:13:04] Speaker 04: I mean, you can't simply say, we'll give you an opportunity to be heard. [00:13:07] Speaker 04: We've got a gist to a custodian over here who will hear your arguments, and he doesn't speak English, but go ahead and argue away. [00:13:20] Speaker 02: Your honor, that's certainly not what happened here. [00:13:22] Speaker 04: I understand, but you were kind of saying, well, there isn't a requirement for an adjudicator who has authority in this situation. [00:13:35] Speaker 04: It seems to be a little more complicated than that. [00:13:38] Speaker 02: They have to have authority to take action, which actually happened in this case. [00:13:42] Speaker 02: I mean, Mr. Combs, as the deciding official, had authority. [00:13:45] Speaker 02: Now, was his review limited? [00:13:47] Speaker 02: It was limited, but it was limited because the substance of what he was reviewing was limited. [00:13:53] Speaker 02: And that's based upon this court's decisions and based upon Egan. [00:13:58] Speaker 02: There just needs to be a review of whether or not he needed a security clearance, whether or not it was suspended, and whether the 7513 procedures were complied with. [00:14:08] Speaker 02: Now, if the procedures weren't complied with, he had the authority to not approve the suspension. [00:14:15] Speaker 02: If this individual did not need a clearance, and there's plenty of government workers that don't actually need a security clearance, if that's the case, he does not need to go forward with the suspension. [00:14:28] Speaker 02: If there was a case of mistaken identity, it was John A. Smith. [00:14:31] Speaker 02: This person was John B. Smith. [00:14:33] Speaker 02: But here, sort of the notion that constitutional due process requires more when what we have here is an adverse action [00:14:44] Speaker 02: that's one-to-one related to the suspension of the security clearance. [00:14:49] Speaker 02: This isn't a misconduct adverse action. [00:14:51] Speaker 02: There's no other charges here. [00:14:54] Speaker 02: And so the notion that the Constitution requires an alternative, that Congress is not provided, I mean, that's not in any case other than the two cases that Mr. Morris has cited, Deal and McGriff. [00:15:08] Speaker 02: And those cases were modified by Blena. [00:15:11] Speaker 02: I mean, those cases are not even good law for that proposition, the balancing test set out. [00:15:16] Speaker 02: If you look at footnote seven in Blena, they specifically address the fact that that's not even the board's law at this point. [00:15:23] Speaker 02: The board in that and the Blena decision has even said that to the extent there's alternatives that are prohibited by law, impractical, outside management's purview, [00:15:34] Speaker 02: The deciding official does not need to consider those alternatives. [00:15:38] Speaker 02: So that's what we have here. [00:15:39] Speaker 04: Let me give you an example. [00:15:41] Speaker 04: It does seem to me there's something to this notion that the deciding official has to have some degree of authority with respect to penalty. [00:15:55] Speaker 04: Suppose you had the following situation. [00:15:56] Speaker 04: Suppose that the regulations of the agency said the head of a facility [00:16:04] Speaker 04: But only the head of a facility can exercise discretion in a case in which the individual has been found to be not entitled to security clearance to give that individual a non-secure job, even if it means they basically have to kind of give them a make-work job. [00:16:23] Speaker 04: But in appropriate cases of need or a sympathetic case, the head of the facility can give that individual such a job. [00:16:32] Speaker 04: That mean, but no one else can. [00:16:34] Speaker 04: So if they assign someone who doesn't have that authority to be the deciding official in that case, would that mean there would be a problem in terms of the fairness of the proceeding? [00:16:45] Speaker 02: Well, I think that issue has already been decided by the court. [00:16:48] Speaker 02: I think that's the Griffin decision, where to the extent that there is a substantive guarantee of an additional position that needs to be provided, [00:16:59] Speaker 02: then the agency needs to consider that. [00:17:00] Speaker 04: There's no guarantee. [00:17:01] Speaker 04: It's completely discretionary on the part. [00:17:04] Speaker 04: What I'm trying to get you to address is whether if you have someone in the chain of command who has discretion to choose a different penalty, is that a violation of the right of the individual not to have access to the person who has that discretion? [00:17:26] Speaker 02: Well, I mean, we certainly don't think that [00:17:28] Speaker 02: this court or any court has ever held that. [00:17:30] Speaker 02: And I certainly think that no, because it just requires notice and an opportunity to be heard. [00:17:37] Speaker 04: And the issue here is whether... So opportunity to be heard by someone who, even though someone in the agency could grant any number of different choices of alternative remedies, the person that they chose doesn't have that authority, but that's okay. [00:17:52] Speaker 02: Well, I mean, that's obviously not the situation here. [00:17:57] Speaker 01: The deciding official has to be able to exercise the authority of the agency in this respect. [00:18:04] Speaker 02: Well, to the extent that there were regulations setting out that there could be a different position that was provided, I mean, to the extent that that's the case, then I suppose that the agency may have to, you know, I think it's not a matter of constitutional due process, it's a matter of [00:18:21] Speaker 02: sort of the statutory guarantee and the regulations. [00:18:25] Speaker 02: But to the extent it's viewed as that, that was not the situation here. [00:18:30] Speaker 02: And in fact, to the extent we're considering alternatives, if there need to be any alternative that were considered, here there were alternatives. [00:18:40] Speaker 02: One was administrative leave. [00:18:41] Speaker 02: Now the statute says there can be no more than 10 days of administrative leave, but that's an alternative. [00:18:48] Speaker 02: Is it a satisfactory alternative in terms of whether or not Mr. Hornsteth would deem that acceptable because it's only 10 days? [00:18:57] Speaker 02: Well, it's an alternative. [00:18:58] Speaker 02: But I think even in Omar, I believe it was Justice Scalia said that, I mean, the government has a strong interest in not having individuals who cannot fulfill, cannot come to work, that there's no requirement that they need to be paid to sit at home, essentially. [00:19:17] Speaker 02: And so administrative leave was one option. [00:19:21] Speaker 02: The other option that was considered but not followed through with, because the agency official didn't believe it was appropriate, was whether or not there was another position at this particular base that didn't require security clearance. [00:19:36] Speaker 02: The agency, through the deciding official, looked at that. [00:19:41] Speaker 02: And he made a finding that it would be fiscally irresponsible. [00:19:46] Speaker 02: And he didn't have the ability, he didn't have the authority to create a separate position. [00:19:51] Speaker 02: But the notion that to the extent there are no alternatives, Mr. Hornswith prevails here, that's just simply not the case. [00:20:01] Speaker 02: There was an alternative between whether or not there was an indefinite suspension or whether or not he did not meet the substantive requirements. [00:20:12] Speaker 02: And it is a limited review. [00:20:14] Speaker 02: But that's just the nature of this review based upon the fact that the security clearance is all really that's being decided in this adverse action. [00:20:26] Speaker 02: It's a one-to-one relationship. [00:20:29] Speaker 02: And so we certainly don't think that there's been a violation of constitutional due process here. [00:20:36] Speaker 02: I'm happy to also address the ex parte communication argument now. [00:20:42] Speaker 02: As we laid out in our briefs, we don't think that [00:20:45] Speaker 02: There's been any evidence of any sort of derogatory information that influenced the decision maker here. [00:20:53] Speaker 02: And again, I think what that's a product of is the limited review. [00:20:59] Speaker 02: There's no dispute that his position required a clearance. [00:21:03] Speaker 02: It was suspended. [00:21:05] Speaker 02: And based upon that, there were very few communications that needed to happen in terms of the final decision. [00:21:13] Speaker 02: And we certainly don't think that [00:21:15] Speaker 02: the Stoneward factors were met here. [00:21:20] Speaker 02: We can also address the judicial estoppel argument, although we would point out that it's this court's duty to review the law. [00:21:30] Speaker 02: That's a legal issue. [00:21:31] Speaker 02: And we also contest the fact that that was really our position as opposed to Mr. Horn's position. [00:21:38] Speaker 02: in front of the board if you take a look in the appendix at our briefs that the Navy had. [00:21:47] Speaker 02: If there's nothing further, we request that the court affirm the judgment of the board. [00:21:53] Speaker 00: Thank you. [00:21:53] Speaker 00: Mr. Yale, Mr. Morris has a little time left. [00:21:58] Speaker 03: Thank you. [00:21:59] Speaker 03: The government just pointed out the previous decision that noted that the government itself has a strong interest in not having people [00:22:08] Speaker 03: or paying people that aren't able to come to work. [00:22:11] Speaker 03: And that's part of the due process analysis, right, the government interest. [00:22:14] Speaker 03: But the flip side of that is that there's a private interest. [00:22:16] Speaker 03: Mr. Hornsteth has an interest in not losing his employment, in losing his ability to earn a living while the security clearance process pays out. [00:22:26] Speaker 03: Under the system that we have here, that Mr. Hornsteth went through, the deciding official was unable to consider Mr. Hornsteth's private interest at all. [00:22:35] Speaker 03: He was unable to take that into account. [00:22:37] Speaker 03: There were no circumstances, no matter what Mr. Horncest said, that that deciding official could consider his private interest and come to an alternative decision. [00:22:46] Speaker 03: We're not suggesting, and I want to be perfectly clear because I think the government brief kind of mischaracterizes it. [00:22:51] Speaker 03: Our position is not that Mr. Horncest has a right to a specific alternative penalty. [00:22:55] Speaker 03: It's not that he has a right to have a deciding official pick that alternative. [00:22:59] Speaker 03: It's just that he has the right to go in front of someone who at least has the authority to consider an alternative and at least a chance to impose that. [00:23:08] Speaker 03: The reality, of course, is that going to happen in a large percentage of circumstances? [00:23:12] Speaker 03: Probably not, right? [00:23:14] Speaker 03: We have a deciding official who works for the commander. [00:23:16] Speaker 03: Is he going to overturn the commander's decision? [00:23:17] Speaker 03: Probably in a very small number of cases would that ever happen. [00:23:20] Speaker 03: Mr. Hornseth has the constitutional right to at least present his case to someone who can do something about it. [00:23:26] Speaker 03: He doesn't have a right to win. [00:23:27] Speaker 03: He doesn't have the right to have that alternative imposed. [00:23:30] Speaker 03: He just has a right to present his private interests and have that weighed against the government's strong interest. [00:23:36] Speaker 03: Just one other question. [00:23:38] Speaker 04: In the record in this, this is a little confusing, but Mr. Combs states in one of his emails, I guess it is to Ms. [00:23:49] Speaker 04: Gardner, that there are no positions that do not require security clearance. [00:23:56] Speaker 04: And he adds, it is fiscally irresponsible to generate an unneeded position to accommodate the request for work without a clearance. [00:24:02] Speaker 04: I am unable to offer a job not requiring a clearance. [00:24:06] Speaker 04: Can that not be read as an indication that he has weighed the question of whether to offer a job not requiring a clearance and finding that there's no fiscally responsible way to do that, that that option is taken off the table by his decision? [00:24:23] Speaker 03: No, Your Honor. [00:24:24] Speaker 03: I think if you, I don't have the citation at my fingertips, but there's two places in the record. [00:24:29] Speaker 03: One would be the cross-examination of Mr. Coons at the MSRB hearing. [00:24:34] Speaker 03: And also in the request for admissions that were written. [00:24:38] Speaker 04: I was going to ask you about that because I think it appendix to 11 there is a statement which seems this is why I said this was confusing because that seems a little bit at odds with his email in which a statement is made. [00:24:54] Speaker 04: This is this is in the agreed upon facts. [00:24:57] Speaker 04: as all positions at the agency are designated sensitive non-critical, the deciding official did not have the authority to create a position. [00:25:05] Speaker 04: So I sense that there was some tension between those two, and your position would be that actually the latter is binding. [00:25:12] Speaker 03: Yes, and I think if you look at the admissions as well as his testimony, we firmly established that all positions at the Puget Sound Naval Shipyard require security clearance. [00:25:21] Speaker 03: There were no, it wasn't a question of is one of them available? [00:25:24] Speaker 03: There were not. [00:25:25] Speaker 03: There are none. [00:25:26] Speaker 03: And Mr. Combs made that perfectly clear, and the Navy admitted that in their request for admission. [00:25:30] Speaker 03: So that statement in his decision about it would be fiscally irresponsible for me to create one is overruled by the fact that he had no authority to do that. [00:25:39] Speaker 03: There were no positions, and he could not reassign it. [00:25:42] Speaker 03: Thank you, Your Honor. [00:25:44] Speaker 00: Thank you, Counsel. [00:25:45] Speaker 00: We'll take the case under advisement. [00:25:47] Speaker 00: All rise. [00:25:57] Speaker 01: The audit report is adjourned until tomorrow morning at 10am.