because of that the rule was number one obtained without procedures required by law contrary to applicable law that was the illegal procedure the illegal procedure was removing him without giving him a reasonable opportunity to improve the core of our argument is this ten percent technical error rate he got a seventy three and seventy five seventy three day pass and a sixty five not just the seventy three day of the pip was initially sixty days they extended it to seventy three now when you say they seem to be too quick to your answer are you saying that holding him to the ten percent  the core factor in our appeal is this the ten percent technical error rate was applicable over twelve months it was a full year so you saying that people are held to a certain percentage of anything across the board in the federal government if they get here it has to be for a year for the entire valuation it can't be fixed or i'm not saying that at the performance standards that said ten percent per month or two specifically and this is what the supervisor said the standard is quote no more than ten percent of submitted work sheets contain errors  is no time period explicit explicitly associated with that however the evidence and what are you saying that you have to take you take the average for the year that knocking at take it from on a monthly thing i'm saying based on the evidence in the record it was a yearly standard that evidence includes number one the initial articulation to mr burnett of the ten percent standard was an articulation setting forth f y two thousand nine hundred school year two thousand and nine performance standard that was in november of two thousand and eight it was stated to him ten percent for the entire year secondly i submitted or there is a submission of a number of of mr burnett's coworkers who failed to achieve two percent in a month or two months or three months nothing happened to them and when i  raga tori's why weren't these people placed on the tips or given an acceptable rate the response was they improved such that overall for the entire year their percentage rate secondly if and therefore what is the what what is the agency therefore limited to in terms of the time frame that ok with respect to a pipkin the agency should have and could have did the ten percent in some way shape or form now again this is not my standard or mr burnett standard this is how did they do that well because if you're going to do it for seventy three days you're allowed twenty percent to here the suggestion is this is much more well if it was shown in the record that most of the kids including the stripper that started out receiving errors such that in the early months their error rate was high they were therefore permitted the entire twelve months to lower the rate of the cheapest two percent i there is indicated in the record at least three of mr burnett coworkers who hadn't achieved super sick after six months and the only good add to the shoots is it for the supervisor was it that rate down to ten percent by the end of the year so that's my that's my only suggestion that i'm talking about a parade the law does require that you cannot use a one year standard for a seventy three day period it must be pro rated even the image p p acknowledge  if let's take two thousand and nine he had through six months had a twenty seven percent error rate in order to get that twenty seven percent down to ten he would have had  twice as much work and only have a one percent error rate that's the only way he could have made it to ten in the following six months even had to do twice as many and only had a one percent error r substantive right not amenable to harmless error analysis even if he was the worst performer in the world he is still entitle to a reasonable opportunity to improve the lives of a reasonable if you just say ten percent and this is what happened to him i would i would admit to you he just told ten percent over the year in the beginning and then because you didn't perform well enough to be the first month's it's two percent over the next three months then i'm really getting more confused from that and that's probably my problem but if you say you need a pro grade and if you say let's assume that it is an annual rate of ten percent so he's got a pip for three months and he performs at a ninety percent error rate during those months you're saying that you have to pay it how do you calculate that probated over the years and you assume hypothetically that the other nine months assume let's accept your idea that it has to it's an annual standard if you have an annual standard then you have can only have a path that lasts for that entire year no and i think your answer was no you've got progress so i want to understand how you give let me start by saying when and if he was going to receive after seventy five days he had a thirty percent error rate if he would've extended that through a year he would have to be almost flawless of the rest of the year to get that down to perforation might be if it's two percent for a year and again the idea is people have a better opportunity to achieve the twelve months than they do over two or three months the more the more work he speaks submit and the more opportunity they have to get accepted that they gave him the easy marijuana cases he had an easier route to achieve the ten percent in the seventy days and he still was three times the rate so they helped him and he still couldn't do the work under the law that  not applicable it is incredibly applicable they are doing everything they can to help this individual achieve his success and he fails or the need to do to if you don't they could do a pip for ninety days or seventy i think because of what number what number would have been an appropriate one to evaluate someone for seventy days of if as you say the annual rate i was you know the only thing i could do is break percent for a year twenty percent for six months and then break down at least twenty five percent to three months or so i'm just speculating but that would be what i would be talking about  trying to figure out how we make a large appliqued logic out of their argument a logical argument is if you have to pursue you have to attain a certain percentage error rate in twelve months that means out of ten i can miss one and that is easy if i do twenty i can miss two it depends upon how many cases i do not a period of time but but the the agencies stand well that's only the case but that that seems to me that you're saying the only solution here would be to give them a pep that extended from the ad was the only thing that would satisfy you was upset that lasted for a full i have an extra man and he needs may please the court the standard is whether mr burnett had a reasonable opportunity to improve and assistance in in trying to improve that's what the regulations provide that a ny time during the day and appraisal periods of the employing agency may place someone on a pip give the person a reasonable opportunity to prove and assistance we establish in our brief that the way i can you help me out what's the errors here how do you make an error in this year measuring the composition and weight of chemical drugs how do you make errors of many of the mr burnett errors which he repeated over the course of a couple years including during the paperwork was in waiting the substances he either and ms chang why isn't that pretty automatic i mean you put it on a scale and that way your honor the there was a lot of evidence in the record in this charity's declaration explains a lot of this as well mr burnett for example failed to describe what instrument he used fail to record the weight of the instrument he used sometimes they take the substance take some out to analyze it you have to record how much you took out what you're using what kind of instrument his report particularly on the waiting issue you were so it's that it was difficult if not impossible for any other forensic in this to reconstruct what he had done we gave some examples of some of the types of errors he made up at page ten of our brief than mr cheney secularization goes into details on that as well but the way this is crucial because as we explained often the criminal penalties for a particular program controlled substance depended on the way to how much of the controlled substance a criminal defendant had and just the ten percent rate of the size was a tempest and no more than a maximum ten percent technical error rate on the first submission to the supervisor and this checking reviewed mr burnett's reports as well as all the other g s twelve forensic chemists and the feedback that she gave in terms of a written evaluations of all the areas that he made some of which were multiple on any one particular lab report show that there was a tremendous amount of work in reviewing and pointing out to mr burnett his errors which again he continues to make we discover these possible no errors got through because of the review process and then someone else or either mr burnett or someone else was able to go back and redo the analysis make sure that the technical and analysis was correct so that whatever reports were turned over to the prosecutors were correct and contrary to his argument the standard is not whether one of his reports jeopardize one permanent prosecution the standard was a ten percent error rate there's no evidence in the record at least that he's missed that mr burnett cites that says it had to be over a twelve month period the regulation all the case law pips from the m a c b in several cases we've cited in our brief that this court affirmed is that what's what's key is a reasonable opportunity over the course of a pip this was seventy three days to improve in fact what was the pivot is not clear from the record your  honor so i don't really know the record doesn't say why it was extended except to say that the agency wanted to give a little more time to improve other than that there's no evidence as to exactly why prince argument that he doesn't  these particular among your his argument is basically more along the lines of compared to or employees and he argued today that their error rates were higher and nobody lost their job at appendix ten twenty three there is a chart that the agency submitted in discovery to mr burnett that sets out from october eighth to september of zero nine mr burnett's record as well as the record of two of his peers and it shows that mr burnett error rate was extremely high and was not improving and it shows that the other two chemists sometimes had an zero  if they ever went over the ten percent and they quickly came down the next month to below ten percent and that further corroborated by the second ration that when she counsels mr burnett spears they quickly improved so yes once in a while they drifted above ten but then they went down to maybe six or eight percent or lower or no zero percent error rate in a particular month so that there's a great deal of discretion and judgment afforded to an agency and setting performance standards how they measure performance how they evaluate and as in mr burnett he asked for the great substantial percentage of marijuana there was actually he asked for like two weeks of only marijuana exhibits in this ch did not agree to that but she did agree to give him more than half of his exhibits during the pipper the marijuana exhibits which were far less complex than other controlled substances  appendix nine eighty four and it's a very thorough in terms of the kind of feedback she gave it through in terms of the data for example in september of zero eight mr brown that technical error rate was eighteen point three percent for the prior year in april low not mine for the next six months and climbed to twenty seven point three percent and then in the pip from november  ten the rate was more than thirty percent so while his peers once in a while slipped above ten percent but immediately improved with the assistance they got mr burnett error rate continued to submission pointed him to the manuals of the orders or whatever it was that he was required to follow but he continued to make many of the same mistakes particularly on waiting the controlled and since again the standard is whether the agency gave him a reasonable opportunity under the the record here given the facts and circumstances the seventy three day trip reasonable and in terms of assistance the record is replete with ms cheney's efforts over more than two years to counsel him mentor him train him she developed a refresher training module at one point to help him with the weighing problems that he was having but his technical error rate kept climbing and he kept repeating many of the same errors that he had made earlier why was burnett given a successful rating in two thousand and eight when his error rate was closer to twenty percent you're out of the just because the ten percent error rate was first set out for the g s twelve in november two thousand and seven that was not mandatory at the time in may of zero eight during that year a director olten said it would become mandatory for the next fiscal year beginning on october first so when you set out a race and it's not at the time that he got that successful performance evaluation this cheney also weren't in specifically in writing that the ten percent technical error rate was mandatory they had to improve his performance on that so they gave him he had the full year from october eight through september of zero nine and his that's one of the first six months as rate went up to twenty seven point three percent in the summer of zero nine ms checking determined that she would recommend a pip but under the agency procedures headquarters in washington had to approve it so she put him on an informal type of pip in other words continued to point out what mistakes he was making  why citing the manuals and all that and giving him assistance in trying to improve so that was a long answer your question as to why he got the successful rating couldn't be rated unsuccessful benchmark toward which mr burnett could direct for his performance and in response to many of the questions that are coming from the port my submission is again that a reasonable opportunity to improve is as the image p b s said as we quoted in our brief the most important substantive right so the fact that mr burnett was very bad the fact that his error rate was twenty or thirty percent as opposed to ten point four or eleven point five percent does not justify his removal in this situation if the standard we're talking about does not