charged our client with mismanaging the cases to which she was assigned by failing to provide timely hearings and decisions in the cases to it she was assigned the agency explicitly charge that this failure constituted an acceptable performance which in turn constitute a good cause for removal the agency did not prove this charge and the agency's failure to prove this charge is that forth in the complaint is not before this court likewise we assert that the s s a did not charge the judge to paris an acceptable performance with his come with based on his comparative productivity to his peers the production totals set forth as two of the three proved in specification three are set forth to prove the charge an acceptable performance which is the alleged failure to provide timely hearings and decisions in the cases to which he was assigned the assertion is that a second independent charge with invented out of whole cloth for the first time  of performance that is true your honor he did there is an objective statement that you preform but that's not what that's not a good cause that the agency offered for his removal the agency offered that the good cause for his removal was that he mismanaged the cases to which he was assigned as a wholly different charge and this is about did they charge him with the good cause and the unacceptable performance for which they charged him and our answer is they did not in fact the agency successfully manages cases and then it provides examples for three different school years comparing the productivity to other justice productivity how could you not read a charge of productivity is not up to  how is he not on notice what he's been charged with the regulations the case law in existence that applicable to cases of the original jurisdiction before the m a p b and due process require that judge shapiro is apprised of the is the proposing official from the agency or indicate that his low productivity is an indication that he's not performing his duties or that he's got in that he's he is neglecting his duties we went through each and every case that the agency indicated was illustrated and we showed to judge smith satisfaction and and the administrative law judge hearing this case that judge smith wasn't dithering he wasn't neglecting his duties what he was doing was developing the record in a manner that he thought was appropriate he was going out and getting medical records he was he was working with support staff that didn't always do what he asked them to do and judge smith said that more than a third of the processing time attributed to the long jeopardy of his his of his case processing time was due to his the support staff also indicated that it was due to the develop for the record we also established the case processing times that the agency presented contained mathematical  we presented all of that to judge smith satisfaction the bottom line is judge smith agreed with us that the agency did not prove that judge smith took too long to decide cases that his processing times were unacceptable the agency is not arguing here that there is a production quota and fact they cannot argue that there is a production quota and what judge smith did is try to argue indirectly or conclude indirectly with the agency can argue directly if you conclude in this case that judgment should be removed because he didn't produce a certain number of cases you are enforcing a quota likewise under the goodman decision you can discuss productive pretty and we can look at relative productivity but in good men it says that you have to have a meaningful comparison the statistical analysis in this case that determines that judged in which judge smith concluded that judge shapiro's productivity was too low what's the situation in which the court clearly acknowledged that there had to be a meaningful comparison of judge shapiro's cases and case lote and our argument in this case is that you cannot take an objective number in this case and say that it's to look up with the evidence so they did do the further adjustment beyond just the mere numbers you're out at the suggestion that the number of cases he produces is indicative of his failure to perform his job is dependent upon this inference that the agency is trying to draw that he didn't properly manage cases and that's why the charges that would take six i mean if you say they can't have a quote that i understand there's some settlement out there that's of the quota but they can certainly accept know but this went on for fifteen years that's not side that's outside the period for which they charged him they're charging him for not producing cases at a certain level they're not assigning in the cases that he didn't produce so you think because he couldn't perform for fifteen years in the whole lot of three years they should have a sign in six or seven hundred pieces so that he could fail miserably before he could be room for the court in this case have to conclude that there is a reasonable did the a l j find was too low the a l j said by speculation based on the status quo in which the shapiro could not could not produce over a certain number of cases the judge said that the reason he couldn't have been able to produce at the levels that he required how many cases could could he used he says he could have produced three hundred judgments actually understates that insist two hundred he says he thinks he could produce three three hundred excuse me how many could he produce if he had appropriate support staff four hundred judge by says she doesn't know whether she would have fired him for three or four or five or four hundred case production all we know is that he the reason he did not keep his case processing time was longer than others is because he didn't have the support staff that he required and if they had fixed that if the agency that was responsible for his support staff could fix that and then everyone acknowledges he wasn't responsible for that he might have been able to produce a lot more that the concept of a comparative analysis is is in goodman and goodman the cases the cases and the caseload have to be comparative and that simply is not the case here we think this is cases about charging and we think this case is about goodman and the productivity issue and in this case there is no situation in which in which the in which the government prove the case that that it  charged it is undisputed in this case that the agency met set forth a charge and prove that the agency agrees with this insertion and it states that without question a precise and official may not split a single charge into several charges and then sustain one of the newly formulated charges and when a charge is labeled the label and not something else must be proven that's what the s s a asserts in this case also under the cases that involve the original jurisdiction once a charge is ma is the agency that bears the burden of proof if the charge is found supported by a preponderance of evidence it must then be decided whether the conduct in question is good cause to spend to suspend to suspend or take action against the petitioner we note that the respondents brief appears to suggest that if judge shapiro could have guessed during the course of his hearing that the l j was going to substantially alter the grab him and other charge after the record close that he should have anticipated such and altered his defensive soley to the wording that he used and if they are able to demonstrate in any manner that something outside of the exact wording that to use in the complaint was before the formation the basis of the removal that th should be overturned and you have to look at the complaint we have not a matter of process you do and what i think the problem is is it's a many later problem first they're seeking this characterize with a charging specification are specification very is important to step back from is that the requirement that that they be tied in a mechanistic manner as agencies are seventy five twelve actions where they really are limited to what's charged in the notice of proposed action and cannot go outside that is really in aft mechanism for a legit removal which is covered by seventy five twenty one the only statute that governs it seventy five twenty one says that an elegy can only be removed after a good cause is found the regulations that underlie seventy five twelve and seventy five twenty one speak to the different manner in which those remove all actions can be taken seventy five twelve actions really do limit the agency to what they have charged and there's a greater strictures on the agency with l j there was an understanding that there aren't going to be the same level of notice and do care require because to get a good cause find you have to file evidence he was then permitted to put on his evidence and there had to be an initial decision and a review all before the proposed action could be taken so the idea that if in fact the court were to agree with  mr shapiro characterization of the charge that it all had to do with timeliness and that even the productivity pieces somehow related to timeliness the government submit that under seventy five twenty one as long as he has notice of the actions that are alleged to support the conduct in this case an acceptable performance that's acceptable in brighton which i believe is the only federal circuit case that deals with an l j who was thought to be a move for productivity the court held that this isn't new to all that needs to be put in the complaint is enough to put the l g m notice what actions are being alleged so they can respond to them or justify the actions being alleged i think there's there's no dispute here that mr shapiro was well aware that his productivity was at issue and page twenty nine of our brief we cite several several excerpts from the transcript in which he was asked specifically what he understood specifications three to be and he said my understanding is that they're saying that since i didn't produce enough decisions i didn't produce very many decisions and i was taking too long so it's not that he believed it was all a question of timeliness and somehow the productivity supported that charge and i demonstrate in order to show that his timeliness wasn't somehow caused by the staff that he had the same support staff the problem is there's no evidence that the support staff impacted his inability to decide a sufficient number of cases or a sufficient number of hearings once the agency has proven its allegations by proprietor and evidence the burden shifts to mr shapiro not to simply speculate that there's another issue that could be out there but to produce evidence here he was given numerous counseling sessions the purpose of which were to identify constraints upon his productivity he never once said you know that support staff is really just keeping me from being able to decide my cases and what l j smith found was that a prudent a in the board agree with this person l j recognizing as perhaps he did that his staff was slowing him down would go ask for more cases if if truly the delay was not his performance but that of the staff when the case was outside of his control well that he should have bumped up his docket he should have said you know what i need a thousand cases on my docket because then i can't reach the level of productivity that is expected of me he certainly was aware that the agency found his productivity inadequate and in fact after he received his counseling sessions his productivity declined so if in fact the staff constraints upon him because of his low productivity it would have been incumbent upon him he's not a factory worker he is a highly paid highly educated judges amongst the most highly well paid employees of the agency he can simply sit back and in the face of being told that he's not produce this official apparently he could for fifteen years well it takes so long for them to correct this to think that it's a little too and sort of how you prove lack of production or i think it is i think it is i think it's i think it's both too constrictive with productivity will though i think that at least with productivity there never going to say cases should take x number of days and if you go over thirty five then you're being too slow and i think why not i mean the board of them s p b a j a military jet is at its p b have very strict time judicial independence and there is a recognition that there is a there are within the cases that the edges of s s a handle there are different types of cases and so perhaps you could come up with some sort of structure where different types of cases of different time periods but there's an understanding that certain cases are perhaps up close and other ones require a lot more factual development and the agency has shied away from doing that but with respect to productivity at least under goodman there are objective factors once it's proven is being removed for unacceptable performance of his cases apparently it's because he is producing too few at this point time according to judge smith how does he produce more cases he produces more cases by being faster  prove that there are knowing there are no any there are not any issues in the illustrated cases and in many of the other cases that the agency presented that indicated he's too slow there were third factors that suggested as to as to his speed and that so there really isn't a basis for saying he should be faster because his staff is too slow and he's not responsible for his staff i don't mean to say is that it's too slow his staff wasn't responsive in ways that he needed and the agencies responsible for the staff had difficulty getting medical records in new york city because he wanted to develop the record this man is not sitting around doing absolutely nothing he's working hard to develop the record and the reason the agency does not provide a timeline for when a case does not provide productivity requirements is because their emphasis is stated in this complaint it is what is it that judge pirro needs to do to do his job and get these cases adjudicated as soon as possible now there's only two things he could do to produce to produce more more cases one is to be faster judge smith said that's not an issue the agency didn't prove that he's too slow so he couldn't necessarily be faster the second because they didn't prove he was too slow doesn't mean he was wasn't too slow it just meant he didn't they didn't proof and what what other explanation is it that he is he is producing a fraction of them out of the cases that everybody else he is producing cases that he's going in any developing the record he's putting out certain kinds of requirements i don't have it right it might have but i can tell you that according to the respondents brief the performance meetings were designed to prove that to determine whether there were causative factors that interfered with his ability to produce timely processing time and they would they did they figured it out we prove to the court satisfaction that judgment shapiro was not a divider or that he was not moving cases back and forth and appropriately became between case code all of the things that the agency presumed were the reasons that he was too strong too slow were not true what we proved with that he was engaging in a diligent effort to develop the record and the agency has never said that any of these efforts were inappropriate or that they took too long or that he was too slow the second act issue about asking for more cases that he could have asked for more cases that clearly is not supported by this record he was not allowed to ask for more cases in fact the agency's counseling sessions they specifically took cases away from him in fact they took cases away from him at the end of the process is so that a case that he should have been able to keep and come to this position within a fairly short period of time those cases were taken away from him and those stats were given to someone else and that's the whole point of goodwin analysis he did not have the same number of cases to work from and the same spread is easy to difficult cases with respect to the charge it is our position that judge smith in permissibly rewrote the charges we are not talking about a technical interpretation here the agency said that an imminent threat of law judge is required to deliver decisions and hearings in that as soon as possible in a timely manner that's the only thing that he was it required to do they said that the hearing office was supposed to provide timely decisions and parents you have to write that out of this complaint you have to completely take those out and likewise judge crist otto who was the founder of the benchmarks that are the basis of the agency's position didn't say people need to prepare need to provide more cases he said you need to move more quickly the whole point of it was that the cases were taking too long to process and we proved that the judge to pirro was not engaging in