please the court my name is george choose and i represent the petitioner dr allen braun dr braun is an internationally recognized expert on the neural bases of language sleep and motor function has been published over one hundred and twenty five times in numerous scientific journals at the time this case arose dr braun was a tenured research scientist in one of the institutes sit and watch in two thousand and sixteen dr bronze institute removed him thank you judge the n i h s promulgated a special performance policy a clickable to all of its scientists who were hired under title forty two dollars the performance part of the policy as a specific requirement for  tenured scientists such as dr braun specifically the policy which is mandatory provides that and i'm quoting tenured scientist must undergo the detention hearing process before a performance similar to a faculty at a university entering scientists have to work there for some period of time before they can be tenure track and then they have to be voted on by  and i h and when they receive tenure that tenure is similar to what a professor at a university would get and specifically with respect to a offered protections which are not available to the ordinary non tenured scientists or any of the other federal employees at n i m h and one of those protections is exactly what we're discussing here today judge and a paragraph case three of the performance policy makes it absolutely clear that any performance based discipline of a tenured scientist must acceptable performance section one talks about terminations for causes why isn't it quite natural to understand that to mirror and i think we followed this for a long time recognise allowed for cause removals for sufficient really negligent or otherwise bad performance of the job the reason that that does not apply here is because the end i h has specifically segregated out of performance based discipline and i want to make it clear that paragraph h one does not refer just to removal it refers to a performance based action of any kind and and it's this the the end i h is not the veteran affairs administration it's not the department of defense it's not hud the and i h has chosen for itself to require specific procedural protections for ten years judge i am not i am not suggesting here that a scientist a tenured scientist whose performance has deteriorated to a level that would warrant removal cannot be removed what i am suggesting is what is what what does the detainee hearing process look like and who performs it there is a special tenure in committee a committee on tenure at the end i  before scientists scientific performance is believed to have deteriorated to the point that he can no longer credibly perform his research that scientists must st be referred to the tenure committee to determine whether or not that is true if they if the tenure committee decides that the performance of the research scientist a tenured research scientist has deteriorated to the point that they no longer want the protection of tenure then they can be referred out for performance or discipline or anything else but the an issue all the initial procedural protection for tenured scientists is that tenure st has to be removed but your problem is that there's an exception for clause and whether or not that exception scientific misconduct is a creature of its own judge the scientific misconduct is defined as false if occasion or a manipulation of data that is an extraordinarily serious allegation against a science may be so but it relates to performance does not no because before a scientist can be charged with scientific misconduct there is an office of research integrity  which must make a finding that scientific misconduct has been engaged in if in fact a scientist is found to have engaged in scientific misconduct then found by that office then they can be removed for cause based on the finding of scientific misconduct but as with performance and judges i understand what you're saying but the fact is that four  for removal right it is one of the examples in paragraphs but it is not performance based scientific misconduct is is an intentional action by a research cation and manipulation of data is not negligent and it is and i daresay it is not performance if if in fact and i'm not saying that performance can never cross over the line into malfeasance or cause we're not suggesting that we're suggesting however that before that line can be crossed in any case involving a tenured scientist the tenure committee must evaluate that scientist and make that determination st otherwise judge i suggest that paragraph h and k setting forth the protections for ten performance policy the performance policy itself makes no exceptions with respect to performance for a tenured scientist if the n i h believes that you know what you're suggesting is correct in that the and i should be treated as any other agency with respect to title forty two chapter forty three and chapter seventy five dollars they can issue a policy which says that they have not and you know let me just say that the the judge in this case the administrative judge i've crossed into my own into my time the administrative judge specifically found in this case that it is undisputed that ensuring compliance with basic research requirements was part of dr braun's expressed duties as a senior investigator the agency's charge of negligence in the performance of his duties is sustained that finding standing alone requires reversal out of time let me ask you another question do you agree that his failure to follow the protocol extensively was the theory of performance problem yes we do however the implications of that failure as we pointed out in our brief one hundred and three dollars other scientists were found by their institutional research board to have engaged in serious and continuing noncompliance none of them was terminated none of them was disciplined none of them was referred to the tenure in committee the decisions on basic research science and what it means if a scientist does x or y or z that has to be determined st by the breath some some scientists resigned some of them some of the one hundred and three did most of them did not and they continued their research the you know they were not referred to the tendering committee and they were allowed by the i r b if they could remedy the problems that the i r b had found which they offered dr braun you know i just want to say a ten continuing and serious noncompliance they give him a chance the i r b gives the scientist a chance to come up with a plan to remedy his errors and be the institute in this case not only short circuited the tenure committee they also short circuit of the i r b they terminated dr braun or told the i r b they were terminating him before he even had a chance to present his remedy  cause remove all under chapter seventy five dollars and i think that the fact that the i think that the policy being mirrored in in those two sections is evidence from section h one of the performance policy which is appendix page sixty seven dollars and which we've already been discussing but this entire paragraph about terminations for unacceptable performance st discusses performance improvement plan and then at the end of the paragraph provides that when an employee is tenured then the deed hearing process must also apply before a performance action can be taken following a performance improvement plan i'm not sure that there can be drawn a bright line rule between our performance based performance action and that's not an acceptable answer there has to be some sort of standard for growing the law what do you t is not serious enough i think at some level it is left to the agency discretion as to which chapter to pursue and again i think i think one of the relevant questions is is the effectiveness of our performance improvement notice of deficiencies counseling or an opportunity to prove to improve when and when the sort of the competence of the whether the competence in the employee has been has been  to the scientific achievement of the scientist whereas here are the agency witnesses testify that this was an issue of misconduct it was not relating to miss dr bruns knowledge or his skill as a  would cure the line be between something that has to go through the tenure process and something that can be or cause removal yes or no that is that is  agency discretion and involved as well but in this case when you're talking about hundreds of improper improperly have to records over six year period of time the agency reasonably believed that this is not the kind of conduct that could be mediated with a performance improvement plan and it was such a serious nature that a for cause removal was the appropriate action under chapter seventy five the specifics of the factual situations behind all of those employees except to say that the the administrative judge had found that that none of them were appropriate comparative to  appendix page twenty five dollars found that that in any other in other circumstances involving similar scope which is to say serious continuing noncompliance or resulted in t he scientists either leaving or retiring or somehow separating from the agency before and before a disciplinary action has been taken so again i i think the administrative judge in this case found that there were not other serious instances in which the employee was able to continue working at sort of of the same level of serious the administrative judge's decision on this point is that appendix page twenty five dollars at the bottom of the page where he says that but other similar instances resulted in the employees leaving the agency for another job or via retirement retirement i believe he was younger because he did in fact choose to retire the effect thank you judge i just want to address for a moment and the court i think rightfully is concerned with the distinction between performance on the one hand and conduct on the other hand  and performance were treated differently for tenured scientists and that testimony is of pages one hundred and ten and one hundred and eleven of the appendix he also acknowledged that misconduct was not alleged in the proposal testified that she could not recall if the proposal involved misconduct or whether it was even discussed when drafting the proposal and that's a page one hundred and fifteen dollars of the appendix the fact of the matter is is that when the proposal was issued cause was not mentioned it was not discussed a fission c of the service was not referred to no mention of misconduct of any kind that was anything that and even in the decision the only charge was negligent performance actually gross negligence i'm sorry gross negligence is that a twenty nine isn't it no gross negligence is thrown in right gross negligence is a specific charge that has to be raised and it was not the in fact in the decision itself the deciding official says that he was for the of penalties he was relying on negligent performance which is a reprimand to removal for a st offense but you know my my argument is that we don't even get to the table of penalties until you get to did tenure in the tenure ring has to be the threshold in a case like this otherwise tenured scientists their protection of tenure is gone if if the decision on that line between performance and conduct is made by the chain of command rather than an independent office such as the tenure committee then protection is gone who were brought before their institutional review board we're charged with the same charge that dr braun was serious and continuing noncomplian and there is no evidence in this record as to how many resigned and how many were simply allowed to resume their their research but none of way the role of the you are correct that the b does not issue decisions with respect to discipline however in our discovery questions we asked how many of the one hundred and three scientists were disciplined and the answer came back and it's on page i think ninety seven and ninety eight of the of the appendix the answer was