indistinguishable from a qualified decisional independence because he flies a lot that's for denies benefits surely there must be a way to make him do his job adequately and be reasonably polite to people suppos only issues one opinion here i think that's an excellent question is when i've given a lot of thought to whether an l j should have the same independence as what to say an article three judge and the answer is no and the response to that what do you do about a judge who decides that he's not going to do any work i would say handle one case a year and collect a reasonably good souring for doing it is that you take an action against them but based upon a failure to perform in comparison with period which is exactly what social security attempted to do in the goodman case it's not an impossible task one can compare a judge's one to another based on comparable cases most of these judges do more or less the same thing the removed this was dictum because it wasn't necessary to decide a case of what the board said in one thousand nine hundred four and a good mckay's where if you can't provide a blanket exemption on performance issues to these insubordinate here's what the judge said you're on a case yes or no the answer is the judge did now ok in the real world i'm sorry you're forced because you can't can't can't you've failed to follow instructions but not be in summary you certainly can't and that would supported it because as you point out in your read he was he did substantially in your view comply with at least one if not two as a direct anybody or you're absolutely correct and if that way you can get that misconduct is through insubordination and you believe goodman held that as the presiding judge pointed out we're not now but this court is not however that my so my question to you was assuming for purposes of argument that goodman didn't exist and you came and made the argument why should i accept it why shouldn't i say well where insubordinat insubordination for insubordination is not involved failure to comply with instructions is then why can't there be a legitimate sanctioning if you will of the individual for that especially in a setting sir where do it and he didn't explain why he couldn't so to me it's sort of like netscape the standard was very clear either to do something or explaining why you can't do or the response to your question assumes one factor which is the goodman doesn't exist goodman does exist it was relied upon by the administrative law judge borrowed from the national  some people's minds for the proposition that you can get half misconduct through seven by twenty want then argument them to the argument that was made in good little one he can't do it you can't get the case of phillips versus general services administration many years ago insubordination is a direct refusal to comply with an order books did not supply a partial insubordination response either i was going as a matter in the service or his failure to respond is silent insolence if if you're if you're leaving this i mean what the reason i read you that quote before is the words a bother me which is not here to argue its case which states that this is a matter relating to judicial independence and they state all the reasons why my view for judge abrams is i don't have to get there don't have to deal with judicial independence because what we're dealing with here is a departure and unexplained departure by the board from the goodman case that's my concern you're saying you're saying you can't have partial incident because somebody has to be entirely insolent or  entirely if i believe in response to your question if you're going to be insubordinate you have to prove intent to be insubordinate so failure to respond for example doesn't show intent i don't wish you could fail to respond for many reasons problems that had begun in two thousand and three for three or four years the agency didn't take action they suggested he go for training then they sent him a memo saying could you please improve your prefer your timely that and he ignored all of that assume that in each of the directors that were given to george abrams the language has simply been we want you to do things by a specific time we didn't include the instruction that said and if you can't do it is explained why so just assume for  purposes of argument of the please explain why part of the directive is up there then give that had been the nature of the directors wouldn't that have been getting awfully close to punishing him for failure to meet the that and if they had simply said we're going to discipline you for failure to make the benchmarks look at the record the record shows you haven't made the benchmarks in the union contract with the four made that  there is precedent that talk to bargaining agreement provisions can be enforced like regulation so i we don't dispute that but that is not the case here but it would be what i'm trying to get under i'm trying to get the government to this to be whether  that will be a closer case but that's not the case here here he was given the option of explaining why he couldn't meet the deadline set forth in the directive but the deadline for not a result of blowing a benchmark that like in fact the problems with if they hadn't based strictly on the benchmark that would have been an issue but that's not the case here the the first directive listed for each and every case the age of the case they were all three hundred four hundred five hundred days ult and there was testimony from judge  difficulties right price then he would not have been guilty of failing to follow this got to that's correct and in fact he completely abdicated to duty to do that he never even responded in writing to the first direct don't i'm not aware of such a concept that's possible judge judge rollock mentioned the time measured what would happen say for example in the military and the superior officer gave a subordinate person  basically using failure of performance misconduct sort of thing to get after good cause you read goodman and say well there are two ways either you can do this comparative analysis you can say well you're worse than everybody brief he brings up the issue but there were other judges out there who had issues with their timeliness they were issued reprimands by judge part saunders to find that most judges improve their performance that that was different between judge judges for whatever reason from two thousand and three through two thousand and eight when he was finally two thousand seventy thousand even he finally charged just a room refute sheet to comply with the agency was a violation of the decisional independence because then other people would have a role in moving these cases through the process of very similar to what we have here again not an insidious word nation charged by a failure to follow instructions charge and what judge abrams did within the parent agency to members of congress to congressional oversight committees members of the news media they cause so much internal dissension within the social security administration division responsible for these a o'jays that there are many mails many of them reprinted in our brief in the context complaining about abrams and the difficulties he was causing for the agency because of his denial rate these memos these e mails not only were among the personnel specialist in the lawyers dealing with these cases and four is when it the publicity began in two thousand and six or seven and that's when these directive started if you look at the e mail traffic it's clear what they were trying to do their try and maybe to their justification i'm sorry i'm not saying they're wrong i'm trying to do problem right that if you're going to say it's a pretext case don't you have to raise them down below zero if this was raised all these e mails and such were developed during the ford proceedings and what was the more decision the administrative judge the  joy who decided his case referred to this and dismissed it as merely a sign of disrespect for judge abrams by some mid level people when there's no security administration you have this type of pressure internally and then it becomes very important to worry about the basis of you're characterizing it as pressure if it's it's perfectly possible perfectly reasonable that all it did was cause some white somebody to take a look at this particular