Legal Case Summary

Here are your next in number 2010, 31, 37. From Merrow against the Department of Defense. If you give people, Mr. Cox, if you can give everybody a moment to get settled here, take us just a second. Thank you, Your Honor. May it please the court, James Cox from Generon Block for Wilfredo Romero. This court, this case is before the court for a second time. And the question presented is whether the agency violated the controlling procedural regulations and directives in its proceeding regarding Mr. Romero's secret security clearance. The interpretation of those regulations and directives is a question of law. And although the background body of security clearance rules is complex, the problem with what happened here is straightforward. The agency never made a final determination on the merits of whether Mr. Romero's secret clearance should be revoked. So in your view on the remand, what precisely would they require to do? What was the MSPB required to do on remand? Your Honor, I think the MSPB was required to do two things. I think first, the MSPB was directed to make a legal determination in the first instance where this court to review of what the regulations and directives required. That legal interpretation is a legal interpretation that this court would review to know, though. Secondly, to the extent that evidence regarding the agency's past practice is relevant to this court's interpretation of the regulations and any deference this court might afford to what the agency interpreted the regulations. The board was directed to develop a record regarding that past practice that this court would use. But I think in light of what happened in the remand proceeding before the board, that proceeding framed clear questions of direct regulatory interpretation that are fewer legal questions. But we've got the question of our deference because we're told by the Supreme Court that we should give a great deference to the agency's interpretation of its own regulations. I don't see that the government is claiming that we owe deference to the position they're taking in the brief, which is only signed by the Justice Department and under a dare. We don't give deference to that. I think we don't give any weight to the testimony of the prior officials as to what this may be. The key question seems to be what deference that we give to these internal memoranda interpreting the regulation and whether those memoranda really speak to the issues. Before us and whether they help you or would they have the government. You are first of all I agree precisely with what you said about both a day or and to the deference to the government's position and its briefs regarding the memoranda. I think as an initial matter for the reasons that we stated on pages 22 and 23 of our reply brief, the memoranda are ambiguous

. But in any event, the statements in the memoranda aren't entitled to the deference of this court. Applying the rules. Is there a non-popular? No. You're on or I think that could be one reason, but I'd sort of like to offer several other reasons within the framework of the Supreme Court's decision in hour and discord's decisions applying hour. I think an applying hour in which the Supreme Court set out the standards for deference to an agency's interpretation of its own regulations. This court as evidence in the Alpav versus Nicholson decision in 2007 has applied a similar framework to Chevron. I'll just sort of frame it in terms of Chevron step zero, Chevron step one and Chevron step two, which I think are similar to the steps that this court has applied in thinking about our deference. I think the interpretations to the extent that the department is claiming that the memoranda are advancing an interpretation under which the revocation of a higher level SCI, or the denial of higher level SCI access automatically leads to the revocation of a secret clearance. That interpretation fails under all three steps of the Chevron and hour analysis. Under step zero, we're not talking about Chevron here. I mean, it makes a huge difference. We're not talking about Chevron difference. You're right about our difference, I would think. You're on right. I think that's right. But I think in the Alpav decision and in other decisions, this court has suggested that many of the same factors that impact with a Chevron deferent should apply to an agency's interpretation of a statute, control whether deference is due to the agency's interpretation of the regulation. Whether the agency was actually interpreting the rule of issue, whether the rule of issue is unambiguous, and whether the agency's interpretation to use the language in our is plainly inconsistent with the rule in question. At the first of those steps, I think the agency's interpretations in these memoranda are not actually interpretation of the controlling regulations and directives because the first because of problems regarding the timing of when these memoranda were issued. Two of the three memorandum questions, the Munson memorandum and the Winneberger memorandum were issued in 1996. Before in 1998, there were substantial changes to director of central intelligence directive 6 slash 4. In fact, director of central intelligence directive 6 slash 4 didn't come into existence until 1998, replacing a prior directive. It affected a significant change in the relevant standards governing access to SEI. Specifically, it includes a direct statement which you can find on J845 in annex F item 1e of the new DCID 6 slash 4 that says failure to meet an additional, but not duplicates. The issue of requirement may not necessarily affect a person's continued eligibility for lower clearance. And that statement in DCID 6 slash 4 was put into the regulations for the first time. J845

. That provision was added into the regulations for the first time after the two 1996 memoranda were issued and affects the validity of that guidance. I hope I'm not cutting it off or something that Judge Dive wanted to hear, but time has limited. So let me be pretty me shipped you weird is all accepting everything you say about how you're considering the regulations. Does that just get you to the point where you're saying that it was incumbent on WHS to do its own analysis with respect to the lower level security clearance. Is that where this all gets you? Yes, your honor. Okay, so assuming that's what we had in mind also maybe on remand that they have to determine whether the internal procedures were violated. So you say yes, they were violated because WHS didn't do its own interpretation. Then we get to whether or not this is harmless or harmful and it seems to me the the ALJ at the MSPB concludes that even if they had adjudicated the clearance based on the information available, the WHS would have revoked his secret security clearance. So seems to me they did what we asked them to do on remand is they assumed even if the procedures were violated if they had complied with the procedures, the result would have been the same. Why is that not the end of this case? Your honor because I believe that's not a determination that the MSPB can make and I think the government in its brief has acknowledged that that's not a determination the MSP can make. Under the Supreme Court's decision in Egan both the board and this court are prohibited from sort of intruding into the executive prerogative of the substance of security clearance determinations. So how could we have how could they have analyzed whether or not it was harmful. I mean did they have to it is what's the piece missing here that they needed to get an agency official from WHS on the witness and he has to have testified that he would have made this reach the same reason. So this is the analysis he would have gone through and this is what he would have done. You honor I think at least that would have been required. I'm not sure that even that would have been enough. So what's enough. I mean what's what how do we do the harmless error evaluation. Even assuming that you're right about the procedures that they were compelled to independently make an evaluation of the security clearance. You honor are I think there are two points first. I think this is the kind of error that is not susceptible to harmless error analysis. Yeah, but I think that's way beyond where we are here since I mean you could have taken I guess the initial opinion up to the Supreme Court but now that's the law of this case that this analysis was required. So let's leave that I understand you make that argument but let's leave I don't find it particularly persuasive. Let's move on to how harmless error applies. You honor if I could just briefly say I think whether harmless error could be applied depends on the specific procedural error that was identified. And I think the court needs to look at the specifics of the procedural error that we've come to after the proceeding of the MFPD

. But regardless of that I think the harm to Mr Romero here is comes from the fact that the standard for a secret clearance is substantively different from the standard for SCI access. And because the agency never actually made that initial determination of how to apply the standard for the secret clearance. That's a discretionary determination. The regulations governing a secret clearance say that the considerations that play in this case an immediate family member who is a citizen of a foreign country or associates who are connected to the foreign government. So your point is there's no testimony in the record that they would have reached the same result if they had taken the correct standards into a cap. That's correct your honor. And I think the government's brief I think illustrates that precise problem because the government sort of continues to say and relying on the testimony of the agency officials who testified here that the regulations mean something different from what the plain language of the regulations suggest. And as a result I think to the extent that the department is saying it would have come out the same way with respect to the secret clearance. That conclusion can't be divorced from the fact that the agency is continuing to push what in our view and I hope in your view is inaccurate interpretation of the relationship between the regulations governing SCI access and government's secret clearance. I mean the MSPB made a finding I think as I read it in the alternative it's their opinion of page 40 where they said even I think they sort of accepted your analysis of the procedures required and then made a finding a factual finding that if they had adjudicated the clearance based on the information that available they would have reached the same result. If is your position that if they had had six witnesses from the agency that testified to that and the A.J. had added and I believed what so and so said and that's why I believe that that would you would accept that that would be sufficient. I'm not sure that that would be sufficient but I think that would be a different case. I mean you sort of understand our general position of this kind of error isn't susceptible to harmless error analysis period. Setting that aside I think if you disagree with that then yes if the agency had said authoritatively in 2005 this is what we would have done then that might be enough if this error is susceptible to harmless error analysis. But that's not what happened here there's no authoritative interpretation from the agency even at this stage saying that Mr. Romero's secret clearance should have been revoked and would have been revoked in 2005 that the agency had actually considered the question. Seems to me there are two separate issues here and they don't necessarily get teased apart in the briefs but the way I'm looking at this case there's you can say okay the problem here is that the agency has been revoked. The reason is that DIA in the presence and through the person of ultimately the PSAB excuse me for all the acronyms but that's dealing with the defense department that's always the case. All right so the PSAB decides the SCI issue and then per the money memorandum at least according to the government that automatically pre-demets any further inquiry by WHS and so WHS C.A.F. just sends a letter pursuant to the Winterberger decision as PSAB automatically and you don't like that because you say no no. There was no separate inquiry into the security clearance issue it was all dictated by a C.I

. There's a second approach to the problem which is to say well wait a minute DIA all the way through was saying that they were deciding both issues both security clearance and S.C.I. and that went all the way up to the Doha which focused almost entirely on security clearance issue and then you have Winterberger who says I affirm the DIA and the Doha but in his referring to upholding the decision of the agency in Doha he said he only refers to the SCI. Now those really strike me as two separate rationales. Let me ask you about the second you've talked a lot about the first if you view as the administrative judge did here you view Winterberger has having in effect either accepted or acquiesced in the decision of DIA where you now have an agency not W.I.H.S. to be sure but a different agency making sure that you have a different agency. So I think that's a very important thing and explicit determination with respect to security classification why doesn't that satisfy any of the procedural requirements. You honor two responses first I think the conclusion that that is what the DIA S.A.B. was doing in its final decision which is the only action of the DIA that carries the force of law is that final decision signed by Winterberger. I think reading that decision is not a reasonable inference to say that the DIA actually was intending to adopt the findings with the decision. Do you think that's a factual issue of factual question how one interprets that document. No you're honor I mean I think that's a legal decision that that's the agency's final decision of law in this case and I think the meaning of that final decision in the same way that the meaning of a district court's order would be a question of law for this court to consider. I think the meaning of that final agency determination is a question of law first for the board to consider and then for this court to consider. The second problem I think is that as we argued in both of our briefs under section C7.1.2.3 of the O.D. reg 5200.2-R the W

.I.S. was the agency it was the component that was required to make this decision. To make that argument you have to reject the argument that C1.2.3 is limited to military right. That's correct your honor. But if you're wrong about that and the AJ rejected that argument but if you're wrong about that then you're left with the argument that the AJ was wrong in his characterization of what Winterberger was getting at in effect by affirming a decision that did explicitly deal with the security classification right. I think it's a take issue with the characterization of this decision as affirming. It doesn't say sort of categorically that it affirms any lower decision or adopts any lower decision. It says specifically the determination that you do not meet the minimum personnel security standards for SCI is affirmed. But do you read the lower level decisions is addressing the secret clearance as well? Yes you're honor. I think both the decisions of the DIA C.A.F and the recommendation of the Doha administrative judge did address both the secret clearance and SCI. But sort of in much the same fashion as you have under immigration law with the decision of an ALJ there versus the Board of Immigration Appeals. Assuming as the DIA SAV acts the DIA SAV's decision is the only decision of record and what's in those other decisions is not a final statement of the agency's adjudication of the case. So I think you have to look at what's on J.A. 53 that's the DIA SAV's final decision. And within the confines of that document sort of determine that document addresses the secret clearance. I think because it never uses the word secret clearance and because the test that it describes in paragraph two much more closely tracks the test for SCI access than attracts the regulatory test for a secret clearance. I think it's clear that this document is just addressing the SCI issue. I thought that the SCI disqualification was automatic based on foreign connection and that the security clearance was the area in which mitigation was a consideration. Isn't that right? Yes, you're right. I think that's and it would seem to me that since the SAB refers to mitigation in the second paragraph it's reasonable to read that is addressing the problem that dohai itself was addressing

. You know, I think the key sentence to look at the second paragraph is the second sentence. We're on page 53 of the joint appendix where the DIA SAV says the foreign influence standard applies and mitigating factors do not apply. Not you have failed to mitigate which was the finding of all of the lower bodies but mitigating factors do not apply which I think is exactly a statement of the standard of the per se rule that's applicable in the SCI context rather than the the may disqualify in some circumstances, depending on the evaluation of the whole person including mitigating factors, standard that applies in the secret clearance context. Now, the I guess I maybe I read that differently from where you're reading it but I understood that and I want to go through the entire dohot conclusion here but correct me if I'm operating on a misapprehension of what dohot did. I thought that they said okay if you are married to a foreign citizen that's SCI you're out but security clearance mitigating factors may operate. However, if you're married to someone who is an agent of a foreign power then mitigating circumstances don't come into play at all. Isn't that correct reading of what dohot did? You're not rejected. Dohot was directed almost entirely at the security clearance issue and it seemed to me there were two steps to the analysis. One is are you married to a foreign citizen as to which with respect to security clearance mitigating circumstances come into play but then saying ah but here it wasn't just a foreign any foreign citizen. It was an agent of a foreign power therefore different analysis and I had thought that is what Wineberger was referring to when he goes to the second sentence that you just read from isn't that right. Maybe I'm misreading. I think in my reading of both of those decisions. I think that as long as we're still in secret clearance in the secret clearance world there still is a consideration of mitigating factors and how those mitigating factors are considered depends on the specific considerations and issue and here I direct you to J a 343 which is appendix eight of DOD regulation 5200.2 dash R which lists a number of factors that may be disqualifying and could raise concerns but are not per se disqualifying and one of those factors is relatives who have an associate who are connected with any foreign government. So under that regulation the analysis it's specifying is if you have a spouse or other relative who is a citizen of a foreign country or who is connected with a foreign government. The general analysis of evaluating the whole person considering mitigating factors is still what applies and my understanding is that that was the that was what what Doha was doing and that's sort of not what was happening in the in the second paragraph of the DIA SIP decision. Well let me just I hate to spend so much time but we're over so I look to it a little more but I hate to spend so much time focusing on this one. They're very specific area but it does seem to me to be a critical point is exactly what one interprets when workers having done. If you read the one to third paragraph of the conclusions on J.A. 51 of the Doha down one to three four five lines four lines I'm sorry Doha is referring to the mitigating condition and says because she is an agent of a foreign power the mitigating condition is not applicable. Okay and then when you go over to Weinberger you see Weinberger saying that as noted by the administrative judge the foreign influence standard applies and mitigating factors do not apply as your wife is by definition an agent of a foreign power. That seems to me responsive directly to the discussion by the administrative judge of the Doha to the security clearance issue is it not? Or is that not at least a reasonable reading of what Weinberger is saying? I think you understand that. I do understand what you're getting at your honor and I think to the extent that that is a reasonable reading I think that would just indicate that there are multiple reasonable readings of what Weinberger is saying and given the sort of statutory and regulatory due process requirements I think to say a decision that never uses the words secret clearance. And it's susceptible to several possible interpretations of what it's talking about in the details to say that that is a decision on the merits revoking Mr. Romero secret clearance and on that on the basis of this final agency action Mr

. Romero secret clearance was revoked I think that would be contrary to those statutes and regulations guarantee Mr. Romero I just asked one other quick thing because I've gotten probably more confused rather than less confused as the discussion has gone on is it true that for a secure you know for regular security clearance is it an automatic disqualification if your spouse is an agent of a foreign power. Is that this is that what the statute says that they're referring to you are that statute simply includes a definition of what agents of a foreign power. Well what is your view for regular security clearance a secret clearance that does is that an automatic disqualification if your spouse is an agent of a foreign power. Your Honor my understanding is that that sort of the two factors that go into that the citizenship of the spouse and whether the spouse is connected with any foreign government are among the factors that are considered in the sort of totality of circumstances. So that's correct that's my understanding that those are factors that could be considered correct your Honor and it's entirely possible that in that situation a security clearance never would have been would be granted that determination but that's a contextual determination that must be made based on the consideration of the full record of the whole person consistent with appendix eight which again you can see a J a. We will reserve the actual restore your rebuttal time we ask a lot. Please the court the court should affirm the board's decision because the board correctly concluded that the agency followed its internal procedures and revoking Mr Romero's secret clearance now the court has raised a number of questions here during the course of Mr Cox's presentation and I'd like to just briefly address some of those first as the court recognizes the foreign agent issue did not would not result in on the court. So what is your answer to my last question which is it would it under for a regular security security clearance would a spouse who is a foreign agent automatically revoke or would it still be just effective to be a factor to be considered but what's key to this case is to recognize that the adjudicative guidelines are coming up. I would like to thank the committee for the comment for both the sci access eligibility determination and the secret clearance. The only way is standard is different as I think you just admit it that for sci it's automatic but the first secret clearance it's not. No, you're honor for sci the fact that your wife is a foreign agent is not an automatic disqualifier under sci during the nomination process what normally happens is the agency looks at whether or not your spouses a foreign citizen that's a different analysis than the foreign influence standard that's applied under appendix eight of 5200 and and XC of DC ID 6-4 it's in a different section of DC ID it's 5B it's a nominate. The nation standard as mr. Sheller so white at the hearing can we focus on the sentence that Judge Bryson was focusing on in previous questioning yes and the wine burger memo where he says the foreign influence standard applies and mitigating factors do not because she's an agent of a foreign power is that the standard for sci it's a standard for both. How do we know that because the common adjudicative standards apply both to sci access and to I'm not really don't understand I thought it was quite clear that sci it was all of that. The only thing that's automatic under section 5 if we could go to DC ID. Okay if you go to J.A. J.A. 400 and you go to 5 personnel security standards this is the only place where there's a requirement that applies to sci that does not apply to the secret clearance and it basically says that the individual requiring access to sci must be a US citizen that applies also to secret clearance. B the individuals immediate family must also be a US citizen that was that would consideration was undertaken by the agency but at the same time they went through the full adjudicative process which requires an investigation. Wait wait wait I'm not understanding this I mean it says her his wife was not a US citizen right correct so why isn't this disqualify. We're sci clear because as mr. Sheller testified at the hearing that determination is made at the nomination stage during the course of a personal process that did not what's the different I don't understand the difference because here notwithstanding the fact that mr. Romero's wife was a foreign citizen they still went through the whole process of determining whether or not he was eligible for access under the common adjudicative

. Access access to sci or access to sci and access to a secret clearance. Don't cause seem to be under the impression that it was automatic because in I like I read the following sentence to you under the dcid64 individuals with foreign immediate family members are precluded from the painting access to sci. And is that wrong. It's a nomination standard that that is not completely right what happened was it's not really true if you look at if you look at the decisions that preceded the doha decision in every single decision foreign influence as well as his wife citizenship were the reason why he was being denied access to sci and his secret clearance foreign influence applies equally to both the doha judge and at some point because the citizenship of his wife was considered there was a compelling need determination request made and but it was in the middle of the common adjudicative process. Suppose we reject this position that you just take it and we conclude that for sci it's automatic and that for secret clearance it's not you agree with the letter then do you lose. We do not lose because in this case notwithstanding the fact that it would be automatic for sci the dia still apply the common adjudicative guidelines and that's why in the sab decision you see that what it's not clear that they applied the correct standard isn't no it is clear that they applied the correct standard the correct standard that we just assumed. They both apply the foreign citizenship of your wife applies under 5b the question about whether or not where does that decision make the distinction between the two standard. The winner burger decision yeah okay let's turn to page. J53. 53. 53. If you look at as judge Bryson did when mr. Cox was standing up here if you look at the sab decision in conjunction with the doha decision that it that it affirms the doha decision. Where does it affirm let's start with that point I mean what does it say about the doha decision well you say it says the only word of firm that I see so you can point out to me why I'm wrong is the original determination that you do not currently meet the minimum curtsality standard. So the reference to affirming is linked to sci is it not. You have to read it in context it says the sab concluded that you fail to mitigate the fair back to okay foreign influence security concerns as noted by the doha administrative judge the foreign influence standard applies and mitigating factors do not apply. As your wife is by definition an agent of a foreign power now if you go back to the doha decision yes the doha decision did say with respect to sci access your wife is a foreign citizen that's different from her status as a foreign agent and an employee the Honduran embassy. Because your wife's a foreign citizen you don't you don't qualify for sci but then the doha judge went on and examined the secret clearance in the context of the common adjudicative guidelines which. Where does where does the administrative judge recognize that a different standard applied again under my hypothetical for sci and secret where where is there a recognition that there's a different standard. The doha judge recognizes that for sci access your what your spouse's citizenship is a factor in the very first paragraph under conclusions where what you're not. There's not a different when when it gets to the foreign influence standard it's not different it's not different so he doesn't recognize that there's a different standard for sci and secret correct he assumes that the that the nomination disqualifying standard of foreign citizenship of the wife put Mr Romero out of sci access but then he goes on and examines the foreign influence standard in the context of the secret clearance now the sab correctly I think also examine foreign influence. In the context of sci access and said look at applies here to so the fact that the sab made a determination on foreign influence and then that standard applies equally to sci and secret clearance means that it was rejecting vote and you have to look at this in the contents of the months and then I move you off a little bit different points so you can include that I mean we've got the board decision and on some certain issues that's entitled to some different others not well the board deals with this question on j 31. Yes I'm just wondering what level of deference you think if any they are entitled to I mean what they seem to come out is they never specifically referred to it but there's nothing to indicate they didn't and then they say rather than interpreting the silence with regard to his secret clearance as disagreement with the age I find it more likely to be evidence of agreement well they didn't discuss the possibility which is that it's not going to be a good idea. It's nothing I mean there's agreement there's disagreement and then just the failure to articulate any judge member. I think that he here is that the board found that the revocation of the sci access under the common adjudicative guidelines applying the foreign influence standard here automatically revoke the secret clearance. When you say board you mean the mspv here the board agreed with the agency if the agency's interpretation is entitled to deference because it's interpreting its own regulations it's not interpreting a statute and unless that interpretation conflicts with the clearly conflicts with the regulation then it's entitled to deference here we have

. Which regulation are we talking about interpreting here. D.C. a D.O.D. 5200.2-R and D.C. ID 6.64. Now there are two points I want to make first on the first I want to just get to the one regulation that Mr. Cox cited that he claimed somehow precluded the agency from taking the action it did here. Can you just go to my point first because I'm really confused about this paragraph on J 31 the eight this is the mspv the a jv s says there is nothing in that decision. So we're talking about what maybe I'm done is that wine burgers decision. I'm sorry you want to do you want your last paragraph. Yes is that is this the reference to the wine burger memo. Yes it's the did it's he's talking about the doha administration decision and then in the S.A.B. decision. Yes so it says there is nothing in that decision to indicate the S.A.B. disagreed with doha. That's correct and the right is there is but the begs the question about whether there's anything to indicate that it agreed with doha right

. The binding on foreign influence shows that it agreed and they say that so they say I don't know unlikely I mean they don't really and I mean they have one sentence referring to foreign influence but it doesn't seem to be there. If you look at j a 32 the board says that mr. rarrow has failed to show that the D.I.A.C.A.F. denial of his S.A.I.A. eligibility did not automatically revoke his collateral access. That's another basis for it's the way we are those are two different grounds. No because under the months in memo when your S.A.I.A.A.C.S. is denied your secret clearance is also denied. When I say two different grounds there are two legal theories here it seems to me that you could be presenting to us. One is that wine a burger did affirm what doha did and that doha did revoke his security clearance. The second legal theory that you could be presenting is the one that you just alluded to which is it wasn't necessary for either doha or wine a burger to say anything about security clearance because it was automatic as soon as he said the words no S.C.I. The W.H.S. CA.F. was locked in to having to revoke security clearance correct. I don't think those theories are mutually exclusive. Well they're not mutually exclusive but they're different routes. I think they're both correct and I think we should look at their they are really they require different us to draw different conclusions about the record in order to get to the conclusion you want us to reach. The first requires us to read wine a burger's affirmance if it is of doha as incorporating an affirmance of the security clearance. The other requires us to read the regulations and the memos as making that step unnecessary correct. I think that you can read the S.A.V. decision that applies to foreign influence standard in the context of S.C.I. is also applying to the secret clearance and I think that that on the second alternative the judge price and describe. If you are wrong about the equivalence between the S.C.I. standards and the standards for secret clearance that second argument goes away does it not. No because the months in memo dictates that S.C.I

.I. The W.H.S. CA.F. was locked in to having to revoke security clearance correct. I don't think those theories are mutually exclusive. Well they're not mutually exclusive but they're different routes. I think they're both correct and I think we should look at their they are really they require different us to draw different conclusions about the record in order to get to the conclusion you want us to reach. The first requires us to read wine a burger's affirmance if it is of doha as incorporating an affirmance of the security clearance. The other requires us to read the regulations and the memos as making that step unnecessary correct. I think that you can read the S.A.V. decision that applies to foreign influence standard in the context of S.C.I. is also applying to the secret clearance and I think that that on the second alternative the judge price and describe. If you are wrong about the equivalence between the S.C.I. standards and the standards for secret clearance that second argument goes away does it not. No because the months in memo dictates that S.C.I.V. I'm not you're on with all due respect I'm not wrong. The foreign influence standard price and the list. No, but if the foreign influence standard didn't apply to the secret clearance then there may be a problem with the winner burger memo. But it does and all the testimony to hearing confirm that that was the whole point of DOD change three that came in the wake of the board deal with that. Where does the board confirm that that's it's completely the age A.J. that is. They are two which we're on. He says that it what paragraph. Okay, first the court was talking was referring to page 31. Right. At the bottom of page 31 that's why I mean that seemed to me to be the board's conclusion that they were concluding that I find it more likely to be evidence of agreement or at least acquiescing. So they were looking at the first question the judge price and has posed whether or not they decided that question right. Right on page 31. The whole discussion that that your honor has just has referenced is in the context of the application of the foreign influence standard. And when you understand that the foreign influence standard applied equally to the SCI access and secret clearance that's what made the board reach that decision in conjunction with all the testimony of the hearing by agency officials who were involved in the process and who are. But you're reading all of that. I mean I'm just looking at the words they. If this further given that the doha administrative judges decision is less than four pages long it seems unlikely that the SCSAB did not notice that the administrative judge had found the appellant in knowledgeable for secret clearance due to foreign influence security concerns. Right. Okay. So given that it's for less than four pages long I mean they're drawing an inference based on the length of the pages. I mean I'm not sure I don't read that as being what you've been telling us for the past five minutes. Right. I mean what are you reading and reading something? The board was the board judge was was persuaded by the fact that both the doha judge's decision

.V. I'm not you're on with all due respect I'm not wrong. The foreign influence standard price and the list. No, but if the foreign influence standard didn't apply to the secret clearance then there may be a problem with the winner burger memo. But it does and all the testimony to hearing confirm that that was the whole point of DOD change three that came in the wake of the board deal with that. Where does the board confirm that that's it's completely the age A.J. that is. They are two which we're on. He says that it what paragraph. Okay, first the court was talking was referring to page 31. Right. At the bottom of page 31 that's why I mean that seemed to me to be the board's conclusion that they were concluding that I find it more likely to be evidence of agreement or at least acquiescing. So they were looking at the first question the judge price and has posed whether or not they decided that question right. Right on page 31. The whole discussion that that your honor has just has referenced is in the context of the application of the foreign influence standard. And when you understand that the foreign influence standard applied equally to the SCI access and secret clearance that's what made the board reach that decision in conjunction with all the testimony of the hearing by agency officials who were involved in the process and who are. But you're reading all of that. I mean I'm just looking at the words they. If this further given that the doha administrative judges decision is less than four pages long it seems unlikely that the SCSAB did not notice that the administrative judge had found the appellant in knowledgeable for secret clearance due to foreign influence security concerns. Right. Okay. So given that it's for less than four pages long I mean they're drawing an inference based on the length of the pages. I mean I'm not sure I don't read that as being what you've been telling us for the past five minutes. Right. I mean what are you reading and reading something? The board was the board judge was was persuaded by the fact that both the doha judge's decision. And the s a b decision apply the foreign influence standard and find there are no mitigating factors and I Mr. Cox's claim that the s a b found that mitigating factors don't apply meaning they never even looked at them. It's just totally inconsistent with any reasonable reading of that document or with the doha judge's decision. But then we should also look at it in the context of the of the months in them. I think just I can say. Well I was going to lead you to a different topic so once you finish it. Okay. If I can just direct the court to J a 501 and this is the months in memo and Mr. Cox said well the months in memo can't be can't be viewed as a valid interpretation of DOD change three because it came out. You know it was slightly before about the same time but if you read the memo it clearly states that the whole point of the of this memorand which is authorized under DOD 52 task. I think he was actually alluding to DCI 64 6 slash 4 not change three. Well change three is what's referenced in the memo itself. I know what he's saying is that his argument is he can correct me if this is a mischaracterization but I thought that his argument was that this comes before DCI 6 slash 4. DCI 6 to 6 slash slash 4 was preceded by DC ID 1 slash 14 and I don't think there were all that significant differences. Okay but so but that doesn't wait for us. The months in memo say that if there's a different standard for the two security clearances for SCI and secret that you would automatically take the. An aisle or revocation of the first one as automatically requiring revocation of the second doesn't say that if there's that there's a change a difference in the standard but there is. Exactly that's your problem with the with the argument if we conclude that the standards are different. I don't see how you can read this memorandum is saying that the revocation is automatic. This is what the memo says therefore whenever DIA denies a revoke SCI access J a 501 the first call pair in the future for personnel assigned to the OSD staff the joint staff or the defense agencies. Here's the key language using the common due process procedures contained and changed three to DOD 5200.2-R it will be unnecessary for the WHS DF to repeat the process. However it will be necessary for the WHS C a F to advise individual writing that his his or her security clearance has been effectively revoke pursuant to the due process action already. But your reading of that is based on the notion that the SCI standard and the secret clearance standard are the same and the hypothetical I asked you about a few minutes ago is that they're different. So the standards are different why in heaven's name would you say that the revocation of the higher clearance results in a or denial of the higher clearance results in a revocation of lower clearance is not saying that if the standards are different that would be a difficult argument to make but let's go to page 503. Difference is an adjudication standards discussion while the adjudication standards of both the issue the adjudication standards in DOD 5200

. And the s a b decision apply the foreign influence standard and find there are no mitigating factors and I Mr. Cox's claim that the s a b found that mitigating factors don't apply meaning they never even looked at them. It's just totally inconsistent with any reasonable reading of that document or with the doha judge's decision. But then we should also look at it in the context of the of the months in them. I think just I can say. Well I was going to lead you to a different topic so once you finish it. Okay. If I can just direct the court to J a 501 and this is the months in memo and Mr. Cox said well the months in memo can't be can't be viewed as a valid interpretation of DOD change three because it came out. You know it was slightly before about the same time but if you read the memo it clearly states that the whole point of the of this memorand which is authorized under DOD 52 task. I think he was actually alluding to DCI 64 6 slash 4 not change three. Well change three is what's referenced in the memo itself. I know what he's saying is that his argument is he can correct me if this is a mischaracterization but I thought that his argument was that this comes before DCI 6 slash 4. DCI 6 to 6 slash slash 4 was preceded by DC ID 1 slash 14 and I don't think there were all that significant differences. Okay but so but that doesn't wait for us. The months in memo say that if there's a different standard for the two security clearances for SCI and secret that you would automatically take the. An aisle or revocation of the first one as automatically requiring revocation of the second doesn't say that if there's that there's a change a difference in the standard but there is. Exactly that's your problem with the with the argument if we conclude that the standards are different. I don't see how you can read this memorandum is saying that the revocation is automatic. This is what the memo says therefore whenever DIA denies a revoke SCI access J a 501 the first call pair in the future for personnel assigned to the OSD staff the joint staff or the defense agencies. Here's the key language using the common due process procedures contained and changed three to DOD 5200.2-R it will be unnecessary for the WHS DF to repeat the process. However it will be necessary for the WHS C a F to advise individual writing that his his or her security clearance has been effectively revoke pursuant to the due process action already. But your reading of that is based on the notion that the SCI standard and the secret clearance standard are the same and the hypothetical I asked you about a few minutes ago is that they're different. So the standards are different why in heaven's name would you say that the revocation of the higher clearance results in a or denial of the higher clearance results in a revocation of lower clearance is not saying that if the standards are different that would be a difficult argument to make but let's go to page 503. Difference is an adjudication standards discussion while the adjudication standards of both the issue the adjudication standards in DOD 5200.2-R for security clearances are those in DC ID 114 which is the predecessor of 6 for for SCI are different discussion while the adjudication standards and both documents are similar there are some significant differences. This situation has resulted in the belief that the DC ID 114 guidelines are more stringent than those in the DOD 5200.2-R and that's the need for a second adjudication and due process for the security deco determination. The solution the publication of the new adjudicated guidelines approved by the security policy forum for the first time establishes a common baseline for security clearance and SCI access determinations thus promoting reciprocity of both. There couldn't be a clear statement of the of the agency's interpretation of the regulations as they applied secret clearance system and and SCI determinations when the foreign when the when the common adjudicative due to the guidelines are applied to the same. So, the same standards are applied from appendix 8 to 5200 and NXC of DC ID 6-4 and in this case they work as we see the reference to foreign influence in both the DOHC and in the SAV decision then they are the same standards. So, your position is that even if we assume that the state we characterize the standards for getting a DCI clear a higher level clearance are higher than a regular security clearance once thought you don't get the higher one you automatically can't get the lower one. As long as the common adjudicative due to the guidelines are applied as long as the standards that apply to both are applied and in this case foreign influence was applied it was found that he there was a problem with his wife being an agent of a foreign government and he did not mitigate that. But can you repeat that as long as the what the foreign if you go to the board you said that as long as what what is the. The adjudicative guidelines and if you look to J a 343 and J a 424 those are the pages that talk about foreign influence that applies equally to a secret clearance and SCI access the only. The thing that you're pointing to now seems to be dealing with reciprocity with respect to top secret SCI access that's the heading of the 502 top secret is a prerequisite for SCI access. Right, but that's just talking about the fact that well that's number one if you look at number two focusing on three I take yeah three differences in adjudication standards. I know you're taking away from from 503 section three you're take away from that is there may have been either a perception or even the reality of different standards in the past but we fix that it's the same. That's what the point of change three was to do 52 under point two dash R that was what executive order 12968. See Mr Cox seems to have a problem with this procedure where not the court is not here to evaluate the validity of the procedures in fact the court doesn't have authority to do so at least the ID six dash horses that these procedures are not subject to judicial review and the court already found in the original Romero decision that the executive order was not subject to judicial review the processes are what they are the agency followed those processes so therefore. The court's decision should be a firm well I want to bring you to that this other point I was going to get at a minute ago and that is this the regulation that raises the question of whether or not this is C seven one two yes the earlier part of this regulations has all provisions this on page two nine. All provisions of this regulation apply to the ability personnel members the armed forces excluding Coast Guard personnel blah blah blah so why shouldn't we read C seven one two three second sentence as applying to civilian personnel well because that particular provision clearly states that it applies to military personnel but even if even if C seven point one point two point three could be considered. This is true to somehow applying to civilian personnel in this case through the winner burger and months in memo there was a clear delegation of a thar to the IA to adjudicate secret clearances in addition to SCI clearances from pet members of the WHS staff there's a delegation here even I know the court has an issue with where is the delegation reflected in the months in memo on the winner burger memo at J a 459 and J a 501 502 in this case there's no question that the WHS permitted DIA to adjudicate because only DIA could adjudicate SCI WHS could not adjudicate SCI so in the spirit of DOD change three as well as EO 12968 they said okay because you can do SCI and because these common adjudicative guidelines apply to the whole do the whole thing and that's if you look through the process if you look at J a 44 the whole sequence of correspondence up to leading up to the SAB decision. Why doesn't the money memo seem to limit this to clearances at the same level the money memo isn't as clear as the months in a winner burger memos but certainly doesn't conflict with them. I mean that I know that's Mr Romero's argument but there's no conflict between the money and months in the winner burger memos and there's no evidence of the winner burger or months in memos wherever superseded and agency officials came in and said they were not superseded so money just talks about rest of the reciprocity more general terms and then just blast provision I want to reference was. And it's DC ID annex F section one E that Mr. Cox referred to where is that and the 445 that applies only when you're talking about one age agency reviewing an SCI access eligibility decision made by another agency it doesn't even address the issue of secret clearances in the lower just as when one agency is looked at SCI and they haven't do a non additional requirement then you may have to consider that and looking at SCI with another agency but you can still use the investigative files generated by the first agency it had nothing to do with the issue that is that here. Can I just close out my question at least by just taking you away from this let's assume that looking back at the remand opinion and what the M. S. B. was supposed to do let's assume we disagree hypothetically everything you said this morning and therefore we find that there was a problem with the the procedures and that it was not indeed there wasn't adequate consideration by WHS of the question of security clearance

.2-R for security clearances are those in DC ID 114 which is the predecessor of 6 for for SCI are different discussion while the adjudication standards and both documents are similar there are some significant differences. This situation has resulted in the belief that the DC ID 114 guidelines are more stringent than those in the DOD 5200.2-R and that's the need for a second adjudication and due process for the security deco determination. The solution the publication of the new adjudicated guidelines approved by the security policy forum for the first time establishes a common baseline for security clearance and SCI access determinations thus promoting reciprocity of both. There couldn't be a clear statement of the of the agency's interpretation of the regulations as they applied secret clearance system and and SCI determinations when the foreign when the when the common adjudicative due to the guidelines are applied to the same. So, the same standards are applied from appendix 8 to 5200 and NXC of DC ID 6-4 and in this case they work as we see the reference to foreign influence in both the DOHC and in the SAV decision then they are the same standards. So, your position is that even if we assume that the state we characterize the standards for getting a DCI clear a higher level clearance are higher than a regular security clearance once thought you don't get the higher one you automatically can't get the lower one. As long as the common adjudicative due to the guidelines are applied as long as the standards that apply to both are applied and in this case foreign influence was applied it was found that he there was a problem with his wife being an agent of a foreign government and he did not mitigate that. But can you repeat that as long as the what the foreign if you go to the board you said that as long as what what is the. The adjudicative guidelines and if you look to J a 343 and J a 424 those are the pages that talk about foreign influence that applies equally to a secret clearance and SCI access the only. The thing that you're pointing to now seems to be dealing with reciprocity with respect to top secret SCI access that's the heading of the 502 top secret is a prerequisite for SCI access. Right, but that's just talking about the fact that well that's number one if you look at number two focusing on three I take yeah three differences in adjudication standards. I know you're taking away from from 503 section three you're take away from that is there may have been either a perception or even the reality of different standards in the past but we fix that it's the same. That's what the point of change three was to do 52 under point two dash R that was what executive order 12968. See Mr Cox seems to have a problem with this procedure where not the court is not here to evaluate the validity of the procedures in fact the court doesn't have authority to do so at least the ID six dash horses that these procedures are not subject to judicial review and the court already found in the original Romero decision that the executive order was not subject to judicial review the processes are what they are the agency followed those processes so therefore. The court's decision should be a firm well I want to bring you to that this other point I was going to get at a minute ago and that is this the regulation that raises the question of whether or not this is C seven one two yes the earlier part of this regulations has all provisions this on page two nine. All provisions of this regulation apply to the ability personnel members the armed forces excluding Coast Guard personnel blah blah blah so why shouldn't we read C seven one two three second sentence as applying to civilian personnel well because that particular provision clearly states that it applies to military personnel but even if even if C seven point one point two point three could be considered. This is true to somehow applying to civilian personnel in this case through the winner burger and months in memo there was a clear delegation of a thar to the IA to adjudicate secret clearances in addition to SCI clearances from pet members of the WHS staff there's a delegation here even I know the court has an issue with where is the delegation reflected in the months in memo on the winner burger memo at J a 459 and J a 501 502 in this case there's no question that the WHS permitted DIA to adjudicate because only DIA could adjudicate SCI WHS could not adjudicate SCI so in the spirit of DOD change three as well as EO 12968 they said okay because you can do SCI and because these common adjudicative guidelines apply to the whole do the whole thing and that's if you look through the process if you look at J a 44 the whole sequence of correspondence up to leading up to the SAB decision. Why doesn't the money memo seem to limit this to clearances at the same level the money memo isn't as clear as the months in a winner burger memos but certainly doesn't conflict with them. I mean that I know that's Mr Romero's argument but there's no conflict between the money and months in the winner burger memos and there's no evidence of the winner burger or months in memos wherever superseded and agency officials came in and said they were not superseded so money just talks about rest of the reciprocity more general terms and then just blast provision I want to reference was. And it's DC ID annex F section one E that Mr. Cox referred to where is that and the 445 that applies only when you're talking about one age agency reviewing an SCI access eligibility decision made by another agency it doesn't even address the issue of secret clearances in the lower just as when one agency is looked at SCI and they haven't do a non additional requirement then you may have to consider that and looking at SCI with another agency but you can still use the investigative files generated by the first agency it had nothing to do with the issue that is that here. Can I just close out my question at least by just taking you away from this let's assume that looking back at the remand opinion and what the M. S. B. was supposed to do let's assume we disagree hypothetically everything you said this morning and therefore we find that there was a problem with the the procedures and that it was not indeed there wasn't adequate consideration by WHS of the question of security clearance. Where do we go with the harm even if we assume that is your position still that what the board did on remand was adequate to establish findings there was no harmful error. Yes because if you during Mr. Cox's presentation some one of the broader asked is there any evidence that the WHS looked at this process after the S. A. B. decision was issued and there is if you look at transcript 490 which is a page J. A. 178 of joint appendix Mr. Smith the individual who issued the letter saying hey SCI access has been denied therefore that's a final revocation of your secret clearance testified at the hearing. Page is that again J. A. 178 which is page 490 the transcript he provided affirmative testimony wait wait wait. I'm just paraphrasing here but he said initially show us where the actual test. Okay that's good to hear it I'm sorry. J. A. 178 and page 490 did you say? Yeah I was focusing let's see. Yeah he talks about the process and the use of the common adjudicative guidelines and he said they looked at the basis. What line are you on? Okay okay he says page line 2. Okay nothing such as a decision is taken at face value for reciprocal acceptance within WHS C. A. A. What we do is look at the basis we examine the documentation that we received in this case according to the months in memo there were several things we had to ensure before the so called reciprocal acceptance. Obviously D. I. A

. Where do we go with the harm even if we assume that is your position still that what the board did on remand was adequate to establish findings there was no harmful error. Yes because if you during Mr. Cox's presentation some one of the broader asked is there any evidence that the WHS looked at this process after the S. A. B. decision was issued and there is if you look at transcript 490 which is a page J. A. 178 of joint appendix Mr. Smith the individual who issued the letter saying hey SCI access has been denied therefore that's a final revocation of your secret clearance testified at the hearing. Page is that again J. A. 178 which is page 490 the transcript he provided affirmative testimony wait wait wait. I'm just paraphrasing here but he said initially show us where the actual test. Okay that's good to hear it I'm sorry. J. A. 178 and page 490 did you say? Yeah I was focusing let's see. Yeah he talks about the process and the use of the common adjudicative guidelines and he said they looked at the basis. What line are you on? Okay okay he says page line 2. Okay nothing such as a decision is taken at face value for reciprocal acceptance within WHS C. A. A. What we do is look at the basis we examine the documentation that we received in this case according to the months in memo there were several things we had to ensure before the so called reciprocal acceptance. Obviously D. I. A. had to adjudicate using the federal adjudication guidelines the common guidelines no special D. C. I. parameters that used to exist for adjudication. We also had to ensure the due process was met specified within the memorandum. So as long as we had the documentation documentation trail to show that and we had a good faith reason to believe that all that that had all been accomplished then we could go ahead and do the action that was a part of my question. I'm sorry my maybe I wasn't clear my question was let's assume that they didn't do the right thing at the time. I was I was focusing on the harmless error this shows it was harmless error because the WHS F WHS before it. Actually issue the final revocation said we look at the process. I mean this is what they'll do if they have to approach to saying it's supposed they had to make an independent determination. Why is the failure to make an independent determination as hypothetically required harmless error because the determination was made here the whole record shows that the foreign influence standard. That's a different argument that's not a harmless error. The only error that could potentially have been made here was the S. A. B. S. Failure to use the words secret clearance and its decision. But if you read it in the context of the memory well that's not the only issue. The contention is that the agency had to make its own independent determination. And if they are correct about that the question is how could the failure to make independent determination be harmless error. Because the determination was made under the common adjudicative guidelines and the agency could not have made it any different. The common adjudicative guidelines apply equally to both foreign influence. What I'm saying is let's assume that they messed up in some way shape. Let's assume hypothetically we all agree to that. When I guess my question goes more to if you're evaluating harmless a harmful error. Do you agree with me that the agency should have put on witnesses

. had to adjudicate using the federal adjudication guidelines the common guidelines no special D. C. I. parameters that used to exist for adjudication. We also had to ensure the due process was met specified within the memorandum. So as long as we had the documentation documentation trail to show that and we had a good faith reason to believe that all that that had all been accomplished then we could go ahead and do the action that was a part of my question. I'm sorry my maybe I wasn't clear my question was let's assume that they didn't do the right thing at the time. I was I was focusing on the harmless error this shows it was harmless error because the WHS F WHS before it. Actually issue the final revocation said we look at the process. I mean this is what they'll do if they have to approach to saying it's supposed they had to make an independent determination. Why is the failure to make an independent determination as hypothetically required harmless error because the determination was made here the whole record shows that the foreign influence standard. That's a different argument that's not a harmless error. The only error that could potentially have been made here was the S. A. B. S. Failure to use the words secret clearance and its decision. But if you read it in the context of the memory well that's not the only issue. The contention is that the agency had to make its own independent determination. And if they are correct about that the question is how could the failure to make independent determination be harmless error. Because the determination was made under the common adjudicative guidelines and the agency could not have made it any different. The common adjudicative guidelines apply equally to both foreign influence. What I'm saying is let's assume that they messed up in some way shape. Let's assume hypothetically we all agree to that. When I guess my question goes more to if you're evaluating harmless a harmful error. Do you agree with me that the agency should have put on witnesses. This is what I discussed with your friend on the other side that the agency should have put on witnesses and said if we had done it if we had done what you now say that we were supposed to have done we would have reached this we would have revoked his clearance. And isn't that what we mean by harmless error. To a certain extent that's correct but the problem here is that that would that would require the agency to get into the merits which he can says it is not allowed says this court is not allowed to review and the board was not allowed to review. Well not necessarily they just have to we're not going to evaluate whether or not their analysis is reasonable the question is whether or not they are going through some process. They are thinking they're making a decision you're right we're not allowed to go behind that decision and say no we disagree but the weather and not the decision was ever made and whether or not they say they would have reached the same result doesn't that necessarily go to whether or not it's harmful. If the record we're inadequate on that issue then yes then they were not going to solve our decision. The question here testimony is there that they would have reached the same decision if they had been required to make independent decision. There's mr. Smith's testimony he was the official at WHS. This testimony you just showed us yes and he says he looked at the substance. I don't see that says that what does it say that. You know I apologize your honor in my I'd have to look back at my brief but it was clear that they didn't just glass over they looked at all the documentation and the documentation includes the substance of the reasoning. He seems to say that he was deferring to the DIA the winner burger determination. He's saying that he reviewed all the documentation all the way through but that documentation just say no no. He doesn't say I'm not independent determination I would have reached the same result. I can't say that on this record that that is there but it's not necessary. Okay well yeah we understand that's your position. Let me ask you one other question at page 52 of your brief you say that you disagree with the decision that ultimately got us here for this whole proceeding which is that the court of previously said the board may review security clearance decisions for compliance with internal agency procedures. You you take issue with that. Well obviously we didn't petition for hearing in bank or talent. We believe that security clearance terminations even the procedures are under even exempt from even procedural compliance with the requirements of the agency for determining whether the security clearance ought to be revoked. Yes as opposed to the merits of the security. As in this case it forced a it forced a review of the merits we've been talking today about foreign agents and foreign influence and the actual reasons why the agency. We're not discussing guessing the merits of what the determination was what we've been trying to do this morning I think is figure out what they decide if anything not how they you know the merits of that. Let me see if you disagree with this proposition that the board can determine whether the agency has procedures for denying or revoking clearances and whether the procedures were followed. That's what the court decided in the Romero decision so obviously

. This is what I discussed with your friend on the other side that the agency should have put on witnesses and said if we had done it if we had done what you now say that we were supposed to have done we would have reached this we would have revoked his clearance. And isn't that what we mean by harmless error. To a certain extent that's correct but the problem here is that that would that would require the agency to get into the merits which he can says it is not allowed says this court is not allowed to review and the board was not allowed to review. Well not necessarily they just have to we're not going to evaluate whether or not their analysis is reasonable the question is whether or not they are going through some process. They are thinking they're making a decision you're right we're not allowed to go behind that decision and say no we disagree but the weather and not the decision was ever made and whether or not they say they would have reached the same result doesn't that necessarily go to whether or not it's harmful. If the record we're inadequate on that issue then yes then they were not going to solve our decision. The question here testimony is there that they would have reached the same decision if they had been required to make independent decision. There's mr. Smith's testimony he was the official at WHS. This testimony you just showed us yes and he says he looked at the substance. I don't see that says that what does it say that. You know I apologize your honor in my I'd have to look back at my brief but it was clear that they didn't just glass over they looked at all the documentation and the documentation includes the substance of the reasoning. He seems to say that he was deferring to the DIA the winner burger determination. He's saying that he reviewed all the documentation all the way through but that documentation just say no no. He doesn't say I'm not independent determination I would have reached the same result. I can't say that on this record that that is there but it's not necessary. Okay well yeah we understand that's your position. Let me ask you one other question at page 52 of your brief you say that you disagree with the decision that ultimately got us here for this whole proceeding which is that the court of previously said the board may review security clearance decisions for compliance with internal agency procedures. You you take issue with that. Well obviously we didn't petition for hearing in bank or talent. We believe that security clearance terminations even the procedures are under even exempt from even procedural compliance with the requirements of the agency for determining whether the security clearance ought to be revoked. Yes as opposed to the merits of the security. As in this case it forced a it forced a review of the merits we've been talking today about foreign agents and foreign influence and the actual reasons why the agency. We're not discussing guessing the merits of what the determination was what we've been trying to do this morning I think is figure out what they decide if anything not how they you know the merits of that. Let me see if you disagree with this proposition that the board can determine whether the agency has procedures for denying or revoking clearances and whether the procedures were followed. That's what the court decided in the Romero decision so obviously. But do you think that's wrong? When when the case was presented at the time we said we took them up the opposite position. You still think it's wrong. We believe that that security clearance determinations which are yes or no question do you think it's right or wrong you think it's wrong. We've said that the language is taken directly out of the solicitor general's brief in egan. I understand you think and you taking a different you take a different position you think solicitor general's brief in egan is wrong in that respect. I don't think I can stand here and say the solicitor general's opinion a brief was wrong but that issue really wasn't presented in that case. The whole issue in egan was whether or not the court could get to the merits. What if the issue wasn't presented in egan then egan doesn't work closing. Well right but our position is that you a logical extension of egan is that when you venture into the procedures that are used you necessarily venture into the merits. But obviously we did not appeal or petition for rehearing of the first Romero decision. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Your Honor. I want to start with harmless error and start on pages 178179 of the joint appendix where Miss Haasford directed you. On page 179 continuing the testimony from Mr Smith that she cited. Mr Smith says DIA's action was the action. Wait, what page? I know you're on jones. I'm sorry. But a point 91 it's a very top of the page starting in the second line. DIA's action was the action for the department and required absolutely nothing on our part meaning nothing on WHS is part. That's why I use the term administrative housekeeping

. But do you think that's wrong? When when the case was presented at the time we said we took them up the opposite position. You still think it's wrong. We believe that that security clearance determinations which are yes or no question do you think it's right or wrong you think it's wrong. We've said that the language is taken directly out of the solicitor general's brief in egan. I understand you think and you taking a different you take a different position you think solicitor general's brief in egan is wrong in that respect. I don't think I can stand here and say the solicitor general's opinion a brief was wrong but that issue really wasn't presented in that case. The whole issue in egan was whether or not the court could get to the merits. What if the issue wasn't presented in egan then egan doesn't work closing. Well right but our position is that you a logical extension of egan is that when you venture into the procedures that are used you necessarily venture into the merits. But obviously we did not appeal or petition for rehearing of the first Romero decision. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Your Honor. I want to start with harmless error and start on pages 178179 of the joint appendix where Miss Haasford directed you. On page 179 continuing the testimony from Mr Smith that she cited. Mr Smith says DIA's action was the action. Wait, what page? I know you're on jones. I'm sorry. But a point 91 it's a very top of the page starting in the second line. DIA's action was the action for the department and required absolutely nothing on our part meaning nothing on WHS is part. That's why I use the term administrative housekeeping. I think it's clear that the substance of Mr Smith's testimonies that WHS made sure that DIA had complied with the procedural requirements of the common adjudicative guidelines. But then not the WHS ever made any kind of independent substantive determination of whether Mr Romero was entitled to a secret clearance. And so result I don't think that testimony establishes anything about what the decision would have been had the government counterfactually actually made a determination of whether Mr Romero was eligible. And this relates back to change three which Mr Smith referred to frequently. I think the effect of change three in the common adjudicative guidelines was to set up a common process whereby the same new process requirements would be followed in the adjudication of all clearances so that you wouldn't necessarily have to have a different process for a secret clearance as for SCI. But as the differences between DCI D6 slash four and DOD regulation 5200.2-R make clear it did not set up a common substantive requirements. After the memoranda that Ms. Hossford was referencing the money memorandum and the Winneburger memorandum were promulgated. In 1998 DCI D6 slash four was put into place for the first time and DCI D6 slash four materially changed the standards for SCI access that were in place before then according to DCI D1 slash 16 which is cited of those memoranda. And one of those one of the relevant changes is that creation of this per se and eligibility and any suggestion that the standards of the same across the two clearance types is simply initiated by the creation of that new regulation. The reciprocity standards follow the logical conclusion that the granting of a higher clearance implies the granting of a lower clearance and the denial of a lower clearance implies the denial of a higher clearance. But nothing says that the denial of a higher clearance such as SCI access with additional requirements necessarily requires the revocation of a lower clearance. So on 503 what you're reading that is saying that's promoting reciprocity means it means promoting reciprocity where the clearance levels are the same or there was a revocation of a lower clearance. Correct, Your Honor. And the most recent at the memorandum, the 1998 memorandum makes clear that that's the interpretation of the money memorandum. Yes, isn't that difficult to square with 501 the first full paragraph that therefore paragraph that is asked for read to us. Your Honor, I agree that it is difficult to square. I'm not exactly sure what that paragraph means. It seems to me that that is is probably among the various memos the most helpful segment for the government. Without conceiting that it wins their case, you would agree probably that that's the most helpful statement. I entirely agree with that, Your Honor. And I think the problem is that as you look at J500, this memorandum is from 1996 before the adoption of DCID6 slash four. And I think it's simply inconsistent with the actual regulations that govern reciprocity is the side of our briefs and with the differences between the actual substantive standards for adjudication between the two regulations. Thank you. Mr

. Cox, Ms. Osford. We thank both counsel. The case is submitted