[00:00:15] Speaker 01:
Next case is Christopher Grush, the Assistant Department of Justice, 2018-15-75.

[00:00:22] Speaker 01:
Mr. Kirk Patrick.

[00:00:25] Speaker 00:
Thank you, Your Honor.

[00:00:26] Speaker 00:
May it please the Court.

[00:00:28] Speaker 00:
Christopher Grush did not receive a sufficient notice regarding his indefinite suspension.

[00:00:33] Speaker 00:
He did not get a meaningful opportunity to respond to the notice.

[00:00:37] Speaker 00:
He was placed on indefinite suspension solely for the reason he was given was that his security clearance was suspended.

[00:00:42] Speaker 03:
You contend

[00:00:44] Speaker 03:
in the blue brief at 23, that the agency was utilizing a suspension of the security clearance in lieu of a revocation of the security clearance, that it was strategically made to avoid due process.

[00:00:57] Speaker 03:
What proof of that is there in the record?

[00:00:59] Speaker 00:
Well, more anecdotal in the sense that in my practice, and all I do is represent federal employees for misconduct, I also represent them on security clearance revocations.

[00:01:10] Speaker 00:
And I'm seeing this now happening.

[00:01:12] Speaker 00:
They place somebody

[00:01:13] Speaker 00:
on a suspension of their security clearance and we say we don't know what's going to happen we're going to investigate.

[00:01:18] Speaker 00:
I've had clients on indefinite suspension for two or three years and they haven't done anything they haven't revoked the clearance they haven't fired them they haven't proposed to remove them so I'm seeing this as a procedure by the agencies mainly DEA and the Federal Air Marshals but there's nothing in the record I mean we seal DOD stuff too but there's nothing in the record there's nothing in the record it's more of an anecdotal

[00:01:41] Speaker 00:
description of what I'm seeing and what happened here.

[00:01:45] Speaker 04:
I'm confused.

[00:01:46] Speaker 04:
Your client had in front of it and admitted an opportunity to respond after receiving it on page 76, the January 29th, 2016 memo that was sent to him.

[00:01:58] Speaker 04:
It goes through in detail explaining his approaching the University of Michigan,

[00:02:05] Speaker 04:
It says expressly he has misused his office and there's potential for unauthorized outside employment.

[00:02:12] Speaker 04:
It goes through the details of approaching the university as seeking to obtain a paid consultancy.

[00:02:18] Speaker 04:
It goes through in a lot of detail.

[00:02:20] Speaker 04:
He had that memo in front of him and unless the board is wrong on this point, and I didn't see you argue this, on page 812 it explains the appellant and his counsel reviewed these documents

[00:02:32] Speaker 04:
in the preparation of their oral and written reply but what is laid out your honor is that that is in the march second letter is pretty bare-bones but you also had the january twenty-ninth memo at the time maybe not you proceed if he did not receive that uh... uh... uh... uh... headaches seventy-six collected at the suspension was proposed all received was what's on it but i think that it's time prior to his oral or written reply correct and his lawyer received it as well and there was an opportunity to review that and address it

[00:03:02] Speaker 04:
prior, so I don't see how there's any kind of due process type problem here, because he may not have received it before the indefinite suspension was proposed, but he received it at a time and had a full opportunity to argue it.

[00:03:16] Speaker 03:
And let me throw in there, to pile on, what additional information would have made the notice adequate, given everything Judge Moore just discussed.

[00:03:25] Speaker 00:
Well, if it might be helpful, the Cheney case, I think, is on point.

[00:03:29] Speaker 00:
The reason it's on point, if you look at the facts of that case,

[00:03:32] Speaker 00:
you see exactly the same type of information given to mister cheney that case which is also a d e a case and the court in that case said look that's not enough that's not what we can say and they're not answering the question what additional information would have made it at well but what the allegations was says five years ago was that five years and ten months it happened in two thousand nine what it happened two thousand as the government contends with the brief we don't know how can he

[00:03:58] Speaker 00:
have an opportunity to understand the basic framework of what the allegation is so he can respond to it.

[00:04:03] Speaker 01:
We've had a lot of clearance cases.

[00:04:05] Speaker 01:
Yeah.

[00:04:06] Speaker 01:
And I'm surprised at the amount of detail that's here and that's still being challenged when he really knew what the problem was, the solicitation of business in Michigan.

[00:04:19] Speaker 00:
Well, Judge, and I know you were on the Gargiulio case, I think, if I pronounced that correctly.

[00:04:25] Speaker 00:
I know you were on that panel.

[00:04:26] Speaker 00:
And there's some distinctions there.

[00:04:28] Speaker 00:
What I'm seeing here is agencies using, say, we're going to suspend, but we're not going to revoke.

[00:04:33] Speaker 00:
We're not even say we're going to revoke.

[00:04:34] Speaker 00:
Whereas in Guardiuglio, that was a revocation case.

[00:04:38] Speaker 00:
In that case, he got a notice saying we're going to suspend as we revoke your clearance and gave him 30 days to respond in that notice.

[00:04:45] Speaker 00:
And he didn't get that.

[00:04:46] Speaker 00:
And he eventually got material, which is mandated by the executive order, 12968 by President Clinton, that governs revocations and security clearance revocations.

[00:04:58] Speaker 03:
What's that have to do with the facts here?

[00:05:01] Speaker 00:
Well, the facts are this, is that he was suspended and there was no attempt by the agency to revoke his clearance.

[00:05:07] Speaker 03:
No, no, no.

[00:05:08] Speaker 03:
What's that have to do with the question we asked about what additional facts would have made it due process?

[00:05:15] Speaker 00:
The information about what it was, what was said, what was specifically, what information was soliciting?

[00:05:21] Speaker 00:
Was it soliciting?

[00:05:22] Speaker 00:
Did he have an opportunity to explain, I wasn't soliciting?

[00:05:24] Speaker 00:
Was it somebody else?

[00:05:26] Speaker 00:
He was giving nothing except the documents that you see that Judge Moore had referenced.

[00:05:30] Speaker 00:
Did he deny that he approached the university?

[00:05:33] Speaker 00:
Absolutely denied that.

[00:05:35] Speaker 00:
As you see from the facts of the case, the agency finally said, all right, we see what you did.

[00:05:40] Speaker 00:
They mitigated to a 10-day suspension when it eventually happened.

[00:05:44] Speaker 00:
And we had an oral reply of the deciding official.

[00:05:47] Speaker 00:
We had a written response, which I submitted as part of the briefs.

[00:05:50] Speaker 00:
And we denied that he was submitting anything.

[00:05:52] Speaker 00:
And they have never proven that.

[00:05:54] Speaker 04:
that the question is is that now is back in the job and i see a lot of these cases judge your problem seems to me is that you think they got it wrong what they stated in the january twenty-ninth memo and you think that is proven by the lesser sanction he also received but the problem for you is this is ten times more detail than cheney

[00:06:14] Speaker 04:
What's on page 29 even talks about how the University of Michigan provided a copy of the business prospectus that Mr. Grush had provided to them, soliciting them.

[00:06:23] Speaker 04:
If all of that may be wrong, and maybe all of this information they had gathered at this stage turns out to be erroneous, and he is either reinstated or there's a lesser sanction or whatever, but this isn't a question about the accuracy of what information was provided to him.

[00:06:41] Speaker 04:
This is whether he was given notice of what

[00:06:43] Speaker 04:
they thought he did wrong was.

[00:06:45] Speaker 04:
And I don't see how you can say page 76 isn't sufficient notice, given that it's far more notice than the person Cheney got.

[00:06:52] Speaker 00:
Well, I respectfully disagree, because I think if you look at Cheney, it's similar.

[00:06:56] Speaker 00:
He said specific things.

[00:06:58] Speaker 00:
As a matter of fact, Mr. Cheney was interviewed by OPR investigators before that, and he was sworn to secrecy.

[00:07:03] Speaker 00:
In that case, you can't talk about what we talked about.

[00:07:06] Speaker 00:
He received information from the agency.

[00:07:08] Speaker 00:
Mr. Grush did not receive any business perspective, a prospectus

[00:07:12] Speaker 00:
before he was indefinitely suspended.

[00:07:14] Speaker 00:
He received nothing except the documents that are contained in the record that I put there.

[00:07:18] Speaker 00:
And the only thing I'm trying to bring to the court's attention is that if the agency is going to suspend somebody's clearance and not even tell them, like you see on page 78 of the appendix, there's no opportunity to respond.

[00:07:29] Speaker 00:
Hey, can you even respond to this?

[00:07:31] Speaker 00:
We're going to definitely suspend you just because your suspension has been suspended.

[00:07:36] Speaker 00:
How can you adequately respond to that?

[00:07:38] Speaker 00:
And so there's an issue between revocations

[00:07:42] Speaker 00:
and suspensions.

[00:07:42] Speaker 00:
And I think the court hopefully would take a look at that and say, wait a second here.

[00:07:46] Speaker 00:
How can they take an action like this in a situation where we're talking about a government shutdown in three weeks?

[00:07:51] Speaker 00:
My client had a government shutdown for 15 months.

[00:07:54] Speaker 00:
Everybody's returner has no pay for that period of time.

[00:07:57] Speaker 00:
There's a lot of issues here that the agency did not let him know what was going on until far later when we got the discipline case file in 2017

[00:08:09] Speaker 00:
long after he was suspended, when OIG concluded their investigation.

[00:08:12] Speaker 04:
Just to be clear, I'm not suggesting that the fact that he was in fact suspended for 15 months without pay was by any means appropriate.

[00:08:21] Speaker 04:
But the question, that's not the question, but I mean, I'm not being asked to figure out how this process should work.

[00:08:27] Speaker 04:
Beyond just, was he given adequate notice of the reasons for the suspension of his security clearance at a time where he could respond to it?

[00:08:36] Speaker 04:
So that's the only issue I'm looking into.

[00:08:38] Speaker 04:
I just want to say that because I appreciate that you are raising flaws in the system vis-a-vis the employee's rights and entitlements, but those aren't the flaws that are in front of me today.

[00:08:50] Speaker 04:
The only thing in front of me is, do these documents provide him with sufficient notice of what they were thinking at the moment they were suspending him such that he could respond to it?

[00:09:00] Speaker 04:
I just want to clarify that because the other things you're saying, I'm not going to suggest that I think, yep, that's great agency, everything's just right.

[00:09:06] Speaker 04:
I just don't want you to know that.

[00:09:07] Speaker 00:
I appreciate that, Judge.

[00:09:08] Speaker 00:
Look, I'm not here claiming and screaming it's not fair and pounding my fist and please take action just because it's not fair.

[00:09:14] Speaker 00:
What I'm saying is that there's not even a small modicum of any kind of process that's in place other than that one paragraph.

[00:09:21] Speaker 00:
When did it happen?

[00:09:22] Speaker 00:
You're talking 15 months later.

[00:09:24] Speaker 00:
You know, Mr. Cheney, that was like two months later.

[00:09:28] Speaker 00:
and i think i mean i'm sorry i think he must be talking five years at least in two thousand ten alleged when this allegedly happened which he did disputed and that's probably not even important to dispute it but obviously ultimately it wasn't true but the point is is that he didn't get an opportunity to tell why was he suspended for ten days why was he suspended he was suspended for not uh... reporting uh... uh...

[00:09:52] Speaker 00:
certain actions that he started a web-based business that after he retired, he might solicit contract and stuff, not for seeking outside employment, I can tell you that.

[00:10:04] Speaker 00:
And it's in the record, you can see the signed officials decision there.

[00:10:09] Speaker 00:
But there is something, and I know that I'm coming before you with a lot of case law here.

[00:10:15] Speaker 00:
The government is touting Gargiulio, and I understand why, but it's different in the sense that that was a revocation

[00:10:22] Speaker 00:
And you might say that that doesn't matter to us, but it should matter when the agency suspends only and then reinstates later on down the line.

[00:10:31] Speaker 00:
And what do we do?

[00:10:32] Speaker 00:
At least give us the information like you do in a revocation.

[00:10:35] Speaker 00:
The executive order's clear.

[00:10:37] Speaker 00:
They give you the whole file.

[00:10:38] Speaker 00:
I've had cases.

[00:10:39] Speaker 00:
And they give you tons of documents.

[00:10:40] Speaker 00:
They give you everything they have.

[00:10:42] Speaker 00:
And then we get a chance to respond.

[00:10:43] Speaker 00:
What they're doing here is just suspending.

[00:10:45] Speaker 00:
Not saying we're going to suspend and revoke.

[00:10:47] Speaker 00:
we're just gonna suspend until we get a handle.

[00:10:50] Speaker 04:
Again, you're beyond the scope of any relief I can give you because what you're arguing, and again I actually agree with you, is that if they had just canceled this clearance you would have gotten so much more process, this would have taken place quickly, and the guy wouldn't have been out of work for fifteen months.

[00:11:04] Speaker 04:
It's wrong that someone with a suspension should be out of work and unpaid longer than someone for whom a proposed cancellation.

[00:11:11] Speaker 04:
exists.

[00:11:12] Speaker 04:
The problem is, again, not in front of me.

[00:11:15] Speaker 04:
I totally agree with you that bothers me also.

[00:11:19] Speaker 00:
And I know this is an ambitious appeal, because I think there's something that has to be looked at that this court might... I just want you to make sure you understand.

[00:11:27] Speaker 04:
I get your points.

[00:11:27] Speaker 04:
I hear your complaints about the system, but I can't fix the system.

[00:11:32] Speaker 00:
And I would have wasted the time of the court by coming in here with some sort of silly argument, and maybe you'll just feel bad for my client.

[00:11:39] Speaker 00:
That's not why I'm here, obviously, because that's not what you guys do.

[00:11:41] Speaker 00:
you can be considered a law but i think there's something that needs to be looked at because this court has a lot of case law uh... regarding the whole uh... you know uh... but i'd like to see the same case without the suspension and ask the government why they didn't back pay him i'm going to ask that question good because uh... yeah we try to work something out but you know it just didn't happen and i i have a lot of cases at DEA

[00:12:08] Speaker 00:
I have a lot of 1811s I represent.

[00:12:11] Speaker 00:
And actually, that's what I do.

[00:12:12] Speaker 00:
And I have a lot of back and forth.

[00:12:15] Speaker 00:
And I see that running in my time.

[00:12:18] Speaker 00:
So I'll just reserve the last few minutes.

[00:12:20] Speaker 00:
Thank you.

[00:12:21] Speaker 01:
We will hold it for you, Ms.

[00:12:24] Speaker 01:
Krushner.

[00:12:25] Speaker 03:
You heard my question, Ms.

[00:12:26] Speaker 03:
Krushner.

[00:12:27] Speaker 02:
I'm sorry.

[00:12:27] Speaker 02:
Your honor, I did not.

[00:12:29] Speaker 03:
OK.

[00:12:29] Speaker 03:
Let me just give you a hypothetical.

[00:12:32] Speaker 03:
Supposing with the same facts, after the 15 months the government had come back and said,

[00:12:38] Speaker 03:
We're wrong.

[00:12:40] Speaker 03:
Your clearance is reinstated.

[00:12:42] Speaker 03:
We just made an error.

[00:12:45] Speaker 03:
Would he get 15 months back pay?

[00:12:49] Speaker 02:
No.

[00:12:49] Speaker 02:
If there is a legitimate valid indefinite suspension imposed by the government, then when they are restored to duty, they do not get back pay.

[00:13:02] Speaker 02:
for the period of the indefinite suspension.

[00:13:05] Speaker 03:
Even though the government finds out that it erred?

[00:13:09] Speaker 03:
It had that information, and it was wrong.

[00:13:14] Speaker 02:
Correct.

[00:13:15] Speaker 02:
Correct.

[00:13:16] Speaker 02:
It still would not receive back pay for the period of the indefinite suspension.

[00:13:21] Speaker 03:
What's the basis for that?

[00:13:22] Speaker 02:
Excuse me?

[00:13:24] Speaker 02:
Why?

[00:13:24] Speaker 03:
What's the basis for that?

[00:13:26] Speaker 03:
Why not?

[00:13:27] Speaker 02:
Because the government, first of all,

[00:13:32] Speaker 02:
The clearance has been suspended.

[00:13:36] Speaker 03:
I understand that.

[00:13:37] Speaker 03:
What's the statutory basis for not paying in back pay in my hypothetical?

[00:13:44] Speaker 02:
There's no entitlement.

[00:13:45] Speaker 02:
There's no statute that gives a right to the pay for the period of a valid indefinite suspension.

[00:13:54] Speaker 02:
If the indefinite suspension was invalid,

[00:13:59] Speaker 02:
then back pay could be imposed by the Merit Systems Protection Board.

[00:14:05] Speaker 03:
But if it is a legitimate adverse action, a legitimate... Would it be invalid if there was a facial reason but it turned out it was erroneous?

[00:14:17] Speaker 02:
Not in the context of a suspension that is imposed because of lack of a security clearance.

[00:14:27] Speaker 04:
So let me give you an example.

[00:14:29] Speaker 04:
So in this case, suppose that the complaint from the Regents of the University of Michigan about someone soliciting business turns out not to have been Mr. Grush at all.

[00:14:38] Speaker 04:
It was Mr. Smith.

[00:14:40] Speaker 04:
So Mr. Grush has his security clearance suspended for 15 months.

[00:14:43] Speaker 04:
He's out of work without pay for 15 months.

[00:14:46] Speaker 04:
And it turns out he never did anything.

[00:14:49] Speaker 04:
And he's completely and utterly exonerated.

[00:14:51] Speaker 04:
There's no back pay?

[00:14:53] Speaker 02:
No back pay.

[00:14:55] Speaker 02:
of the security clearance has been suspended and there is a proposal to indefinite suspend to give you an indefinite suspension from your job and you get sufficient notice and then there's a decision that you are indeed indefinitely suspended and then the investigation goes on and ultimately it's concluded no this this individual did not engage in the misconduct that was alleged

[00:15:25] Speaker 02:
in that kind of a case, you do not get back pay because there is a legitimate indefinite suspension from your job because you do not have a condition of employment which is a security clearance and you are not able to perform any of your duties during that period when you are being investigated for misconduct.

[00:15:50] Speaker 04:
What is the difference between that and cancellation?

[00:15:52] Speaker 04:
of a security clearance.

[00:15:54] Speaker 04:
A 15-month suspension, which turns out to have been completely unwarranted, versus cancellation.

[00:15:59] Speaker 02:
Okay.

[00:16:00] Speaker 02:
Where there is a revocation... Okay, revocation.

[00:16:03] Speaker 04:
I wasn't using the right word.

[00:16:05] Speaker 02:
That's okay.

[00:16:05] Speaker 02:
I'm with you, Your Honor.

[00:16:06] Speaker 02:
It's just that the terminology is revocation.

[00:16:09] Speaker 02:
Then the executive order applies.

[00:16:11] Speaker 02:
Now, if you are proposed to revoke your security clearance, then you are suspended from your duties.

[00:16:19] Speaker 02:
You're not doing your duties because you don't have a security clearance.

[00:16:22] Speaker 02:
but the proposal is to revoke it permanently.

[00:16:27] Speaker 02:
So you're not doing your job, you're not getting paid, but you have the procedures under the executive order, which would give you certain documents and in certain cases a hearing.

[00:16:41] Speaker 02:
Now the consequences where there is a revocation of a security clearance are much greater

[00:16:48] Speaker 02:
than the consequences where it's just being suspended while you're being investigated.

[00:16:53] Speaker 02:
Where there is a proposal to revoke it, if it is indeed revoked, you have no job.

[00:17:00] Speaker 02:
You have no prospect of ever returning to that job.

[00:17:03] Speaker 02:
Now, that's very different from the case here where Mr. Gruss was being investigated for misconduct.

[00:17:12] Speaker 02:
And as Your Honor pointed out, he knows what's being alleged.

[00:17:17] Speaker 02:
The board based its decision on two key documents in the record.

[00:17:24] Speaker 02:
Those are the proposal, which is at pages 70 to 72, and the January 29th memo, which is at page A76 of the appendix.

[00:17:35] Speaker 02:
Now, the proposal does identify the misconduct that's being alleged.

[00:17:41] Speaker 02:
And it explains that there has been information provided

[00:17:46] Speaker 02:
that he misused his office.

[00:17:49] Speaker 02:
And then in the January 29th memo, there's further information that... Yeah, March 2nd alone wouldn't have done it for me, but the January 29th thing is just so detailed.

[00:18:00] Speaker 04:
I don't see any room around that.

[00:18:01] Speaker 02:
Excuse me?

[00:18:02] Speaker 04:
The March 2nd thing wouldn't have done it for me, but the January 29th memo is so detailed and specific, I don't see how that isn't providing sufficient notice.

[00:18:12] Speaker 02:
Yes, Your Honor, we agree that the combined... Yes, that was a friendly question, not an option question.

[00:18:16] Speaker 02:
that combined information was sufficient.

[00:18:20] Speaker 02:
And I did want to clarify that he did have an opportunity to make a response to these allegations.

[00:18:26] Speaker 02:
For example, if Mr. Grush wanted to say, that wasn't me.

[00:18:31] Speaker 02:
You've got the wrong man.

[00:18:32] Speaker 02:
OK, he had that opportunity.

[00:18:35] Speaker 02:
And he didn't use it.

[00:18:39] Speaker 02:
The written response begins at page A-70 of the record.

[00:18:44] Speaker 02:
And it makes no response to the allegations of misconduct.

[00:18:50] Speaker 02:
Now, frankly, that's not surprising.

[00:18:54] Speaker 02:
He knows he's being investigated.

[00:18:56] Speaker 02:
He knows why he's being investigated.

[00:18:59] Speaker 02:
He knows, as a DEA investigator, he's going to be interviewed.

[00:19:05] Speaker 02:
He's going to be interviewed by the OIG, because he's told that the Office of Inspector General is investigating him.

[00:19:13] Speaker 02:
So he knows what's coming.

[00:19:14] Speaker 02:
So the decision is made.

[00:19:19] Speaker 03:
It's not A-70.

[00:19:19] Speaker 03:
What page is it?

[00:19:20] Speaker 03:
I'm sorry.

[00:19:22] Speaker 02:
Oh, excuse me.

[00:19:24] Speaker 02:
I see.

[00:19:24] Speaker 02:
I gave the wrong... I'm sorry, Your Honor.

[00:19:26] Speaker 02:
I gave you the wrong site.

[00:19:28] Speaker 02:
That's my error.

[00:19:30] Speaker 02:
The written responses in the record.

[00:19:33] Speaker 02:
I'm sorry, Your Honor.

[00:19:39] Speaker 02:
I had the wrong page number.

[00:19:42] Speaker 02:
written response A-52.

[00:19:45] Speaker 02:
It's a lengthy document, but if you review it, you will find in no sentence in that document does it take on the allegations of misconduct.

[00:20:00] Speaker 02:
And as I said, that's understandable because he knows that the Office of Inspector General is going to be, is doing an investigation and can anticipate that he will be

[00:20:10] Speaker 02:
interviewed at some point during that investigation and in fact he was subjected to several interviews by the Office of Inspector General in 2016 and 2017.

[00:20:22] Speaker 02:
Then I'd also like to clarify that the eventual findings with regard to the misconduct did include unauthorized employment and the findings

[00:20:39] Speaker 02:
with respect to the misconduct are also included in the administrative record that was before the board.

[00:20:48] Speaker 02:
So there really only are two issues for the court.

[00:20:53] Speaker 02:
Did he have sufficient notice?

[00:20:55] Speaker 02:
Yes, he did.

[00:20:56] Speaker 02:
This case is very, very different from the Cheney case.

[00:21:00] Speaker 02:
He knows exactly what misconduct is being alleged.

[00:21:04] Speaker 02:
He even knows the source of the allegations.

[00:21:07] Speaker 02:
He's told

[00:21:08] Speaker 02:
that at a meeting, the General Counsel for the University of Michigan informed the Assistant United States Attorney of the misconduct in question.

[00:21:26] Speaker 02:
And this is at a time when Mr. Grush himself is supervising an investigation of the University of Michigan.

[00:21:38] Speaker 02:
And also in the record is the information that after this comes out, that investigation of the University of Michigan is no longer under Mr. Grush's control.

[00:21:51] Speaker 02:
It's reassigned to other individuals.

[00:21:56] Speaker 02:
Now, the other question is simply whether he's entitled to discovery of documents underlying the suspension

[00:22:07] Speaker 02:
of the security clearance.

[00:22:10] Speaker 02:
And this Court has already addressed that issue and said that there is no right to discovery of the underlying documents.

[00:22:19] Speaker 02:
And I'd like to just point out that the Board has a specific opinion on that

[00:22:27] Speaker 02:
And that opinion is in the record beginning at page A-93.

[00:22:34] Speaker 04:
Council, when you raise issues that he doesn't raise and that we didn't raise, you now open the door for him to address those issues on rebuttal.

[00:22:41] Speaker 04:
Had you not gone down this road, he would not have been permitted to raise this issue in his reply.

[00:22:46] Speaker 04:
I'm sorry, I'm missing an oral argument right now about this discovery.

[00:22:51] Speaker 04:
He never raised this issue in his presentation to us today.

[00:22:56] Speaker 02:
Well, Your Honor, then if that's the case, I misunderstood.

[00:23:00] Speaker 04:
I'm trying to teach you something about oral argument.

[00:23:03] Speaker 04:
If he doesn't raise an issue, and then you don't raise that issue, he doesn't get to stand up on rebuttal and raise the issue for the first time.

[00:23:10] Speaker 02:
Your Honor, I understood his argument differently.

[00:23:13] Speaker 02:
I'm sorry.

[00:23:14] Speaker 02:
I understood him to address the discovery of documents, so I heard it differently.

[00:23:19] Speaker 02:
I apologize.

[00:23:20] Speaker 04:
I apologize if I missed it.

[00:23:23] Speaker 02:
Thank you.

[00:23:25] Speaker 01:
I'll be first.

[00:23:27] Speaker 01:
Thank you, Ms.

[00:23:29] Speaker 01:
Kirshner and Mr. Cook.

[00:23:31] Speaker 01:
Patrick has about three minutes if you need it.

[00:23:33] Speaker 00:
I'll be real brief.

[00:23:36] Speaker 00:
Issue discovered, I'll just mention that, it's documents, evidence that the executive order requires.

[00:23:41] Speaker 00:
It's not discovery so much where I asked for it, they have to give it.

[00:23:45] Speaker 00:
just like in a misconduct investigation, the agency must give you the materials we live on.

[00:23:49] Speaker 04:
This is if it had been a proposed revocation as opposed to a suspension.

[00:23:52] Speaker 00:
Correct.

[00:23:52] Speaker 00:
And there is no process.

[00:23:54] Speaker 00:
As you can see in the case, the design official and the official who suspended his clearance, they know nothing about what we're talking about.

[00:24:04] Speaker 00:
And you're right, Judge.

[00:24:05] Speaker 00:
You know, I wish I could convince you about the Cheney case, but the Cheney case simply talks

[00:24:10] Speaker 00:
specifics in a probably career causing the career law enforcement databases and abuse administrative smear subpoena process and also violate the confidentiality agreement with opiates that's very detailed too i'd look at the same way in it mr brush was not in a meeting he was never to me there's nothing the record that suggests he was at a meeting when this was allegedly disclosed to dvd the only thing he has is that one paragraph and that's what i'm here fighting about that's what i'm here to say look something's wrong

[00:24:39] Speaker 00:
We don't even get any documents.

[00:24:40] Speaker 00:
We don't even get any information beyond that.

[00:24:43] Speaker 00:
He was never given a prospectus.

[00:24:44] Speaker 00:
He was giving nothing.

[00:24:45] Speaker 00:
The only documents he was given that the deciding official also said during his deposition, I received nothing else either.

[00:24:51] Speaker 00:
I don't know.

[00:24:53] Speaker 00:
And Mr. Verrall, the security control guy, the same thing.

[00:24:57] Speaker 00:
The only thing I have is here.

[00:24:59] Speaker 00:
Now, I was here in a case in front of Judge Wallach maybe five years ago, another DEA agent, similar issue, not quite the same issue here, and it had to do with

[00:25:07] Speaker 00:
whether or not we had an opportunity to do it as opposed to deciding to fish.

[00:25:10] Speaker 00:
You know, these things are cropping up and coming.

[00:25:12] Speaker 00:
And the point is, I think the court may need to look for an opportunity to carve something out.

[00:25:18] Speaker 00:
Maybe you can't.

[00:25:18] Speaker 00:
I don't know.

[00:25:19] Speaker 00:
Maybe I'm being overly optimistic and hopeful that you can say, wait a second, something slipped into the cracks, because we have employees that are not getting paid significantly in a long time period.

[00:25:31] Speaker 00:
I've had some recently for a month.

[00:25:34] Speaker 00:
That's not enough to come on up here to spend resources on that.

[00:25:37] Speaker 00:
Somebody had their clearance suspended.

[00:25:40] Speaker 00:
I worked with the people at DEA, because I know a lot of them, and we got it resolved, and he's back to work, having a couple of times.

[00:25:46] Speaker 00:
But you get to the 15-month range, and clearly there's nothing there.

[00:25:50] Speaker 00:
But unless you have any further questions.

[00:25:53] Speaker 01:
Thank you, counsel.

[00:25:55] Speaker 01:
We'll take the case on your advisement.

[00:25:58] Speaker 01:
Thank you.

[00:25:59] Speaker 01:
All rise.