granted yes judge i'm sorry it was granted in favor of the agency ok thank you justify petitioners removal in this case the nd point is the failure of the agency to provide petition a with procedural safeguards such as a performance improvement plan and other reliance on performance issues that occurred more than one year before the proposed removal was issued the safeguards your honour's mandated in the v a handbook and b record the date something actually happened or to conceal the date something actually happened so it was not to conceal the date that something happened and mr wallace wait until i finish my question that his supervisor which you know which i documented he cited the fact that he did have complained pending against his supervisors at the time the action of occurred discussion and sayers ray consideration of the penalty was actually just picked up well i don't believe it was dept and i think the court has recently  down because i know you've got you want to save some future time for but is simming we agree with you that sayers requires remain and what that remember look like in other words are you asking that we say everything needs to be considered without reference to seven hundred and fourteen and all of the safeguards that would have been in place prior to seven hundred and fourteen should be afforded to mr brown or are you asking that we option that that you want all the protections than that also would mean that that if they can't go back more than a year right that i have i would that would preclude most of not or all of the allegations i believe the  think there is enough that occurred after the relevant date after the passage of seven hundred and fourteen that that the court could still proceed with consideration for some kind of penalty say we will deliberate speed would be appropriate ok proceed yes your honor mr browner was removed for a pattern of poor performance that began before the act was passed which was january in his response the d m c which form the basis of charges one of three the v a s deciding official judge his timeliness based upon the erroneous i'm uncertain that belief that the s l a requires a legal advisement within seven days after receiving a referral from the d m c when what he says is it actually requires the response be within seven days of obtaining the timely submitted his assignments within seven days of receipt of the facts and documents in question one was the burden on mr brown or introduce that evidence and two in the v determination be supported by substantial evidence if it failed to prove for charges one of three that mr brenner was actually late under the rules as they apply mr your hon evidence in the record that shows that he failed i mean it's not we're not talking about a situation in which he didn't need it by seven days or which he was close as the m s p be noted on page eighteen through nineteen of the joint appendix that  he did not testify that any of the cases were complicated or that he required additional information and that he didn't dispute missing the deadline as and again i'm as the joint appendix shows and as agencies decision shows he at least for the charges one he fails to meet the seven day requirement on thirty one occasions ranging from ten to one hundred and forty seven days and was more than two weeks late in all but four of them that's reflected in the decision on page appendix fifteen retroactively applied at all or are you saying that even if sayers says what it says that that somehow the retroactive application was harmed were arguing that mr there  that occurred afterward is similar to the conduct that occurred before which is it it was partially applied retroactively unless the court excess argument that there was a pattern of poor performance certainly in a chapter forty three action the court that agency can consider a performance that occurred before they need put him on a performance employee on a performance improvement plan our position is that he showed no evidence no intent despite being repeatedly counseled by supervisors despite receiving a written reprimand despite receiving numerous e mails from a supervisor you get better and rehabilitation his performance certainly than that administratively judge indicated the agency prove impact that might have and under sayers and we and we have to consider anything that occurred before they the one year governing limitations period right and do you agree with your friend on the other side that that carrington sort of resolves your argument or disputes your argument undercut your argument at least that that the discussion of in the seris taste the court did seem to draw a distinction between performance based cases and misconduct based cases and this is certainly the st performance based case that is before the court and certainly misconduct basis in this case your honor this was it's considered a performance or didn't meet the criteria under his performance standards he failed to meet the requirements of timeliness and what other but other than saying that now and support of your argument that that we can draw a distinction between the two where in the record did the agency say that there was nothing relating to misconduct your honor that the notice of proposed harrington it makes sense to have a rematch and and that you would agree to a room and and then this whole thing could be done appropriately and that and his behavior can be considered under all the misconduct cases before the court the court seemed to indicate there was some difference in how it would defer to the agency and there's with performance versus misconduct there's also questions we weren't sure exactly how to fashion  they were there would have to be an application of the douglas factor so i think i think the agency is very much looking for guidance from the court as you how something would proceed if this was remanded because we felt honestly in considering how to proceed with this case there were a lot of open questions that it wasn't clear often then every man would not create more problems than it solved well and maybe that's where your argument should been focused on what the ar should look like so let me ask you the question i asked to your friend on the other side if if if we were to say that under sayers and harrington we have no choice but to remain and would we be reminding to say you can't you shouldn't you're not allowed to consider anything before passage of seven hundred and fourteen dollars or would we be reminding to say that you can consider the whole scope of context but you have to you have to consider it under chapter forty three instead of some saying that they would still be allowed to take into consideration the things that occurred before it then aren't you still retroactively applying the statute i mean if that's the case if it is a  the port to look at a pattern you know it's it seems odd to say that we the agency have to pretend that nothing ever happened you know trier to the statute but  certainly i think there's enough here after june rd two thousand and seventeen to indicate that he was aware of he had performance related issues and did nothing to improve them and in fact got worse you have your full rebuttal time yes thank you your honor st of all i want to make it perfectly clear that before the effective date of the act my client was not placed on any type of notice that his performance was deficient in fact of two thousand and seventeen fully successful at that time he had a sit down with the supervisor supervisor never mentioned never mentioned any of the allegations which would  several months later utilized in the nerves a proposed removal so i just want to make that very clear that my client was not placed on any notice of any performance related issues prior action even utilizing chapter forty three as the basis of that review in my estimation be invalid because he was not provided with the safeguards the government harmless because the same standard would apply on the forty three but again it ignores the fact that my client had these procedural safeguards the performance improvement plan the the one yes statute whatever that which would have affected notice and that was the whole can competent intent in chapter forty three dollars you can make it easy you have to remove someone for performance related issues were then on the other hand that person writes in order to make sure that if he is that he did not provide a draft of the letter which is why i said requested in a timely fashion that isn't this kind of overtones d so i'm not convinced that even if this action had not been