department of defense two thousand and eight thirty three forty three  determine whether or not the agency reasonably and accurately measure the performance of dr kim and the effects what it chapter seven performance review had to be certified to have this position right right that's a sort of cation military times doesn't that put an end to this the fact that he was sent for three assessments and they determine that he failed is not in our view an accurate measurement of his performance saying that he wasn't certified is just a broad brush allegation from the agency that he just  no not at all what we're asking the court to do is to look at the the evidence that's in the record that we're not arguing the facts are disputing the facts the facts are what the facts are and they are of the record what we're asking is that there is a burden of proof by the  to have prove that it accurately and reasonably measured factor comes performance during these assessments now there was no discussion in the administrative judge's decision about how and what metric or what assessment criteria was used by these three separate tests that pattern suggests some inadequacy doesn't it not of itself they what the what the managers are required to do is give the employee under a chapter seventy five removal notice an opportunity to respond to the specific deficiencies now they brought allegation that the employee was simply performing sub par or that his writing was illogical without any specific explanation articulating what it was that was subpar or this what are going to brief subjective assessment sometimes with the only way that the provider can of value with performance there has to be a metric it has to be tracked the supervisors especially if they're relying on subjective assessment must be able to articulate with reasonable specific specificity what it is that dr king was alleged to have done wrong if you look at the testimony that cited in the briefs supervisor at the supervisor said we brought conclusory statements that dr kim simply didn't understand benchmarks when asked at a hearing how many benchmarks he understood demonstrated understanding they couldn't testify when asked to specify which benchmarks he failed to demonstrate understanding they couldn't identify with specificity dr kim has no opportunity to understand what that charge is a reasonable  opportunity to respond to the charges if the managers are unable to articulate with reasonable specificity what it is that he was alleged to have done improperly leave her to address this issue about reasonable accurate measurement in the cases of women hofmann and glover now respondent argues in their response that the case of dr graham randall graham versus the air force somehow either supersedes or otherwise makes wellman huff and glover irrelevant that's not the case and in fact in ram the board specifically says that we recognize that this may be in contrast to well and have been clever but it is not in and accurately measure an employee's performance there may be objective criteria if the job lends itself to object approach here a clerk typist and chang vs veterans affairs and the essence of the pharmacist there could be an object of measurements but under gr there is very subjective measurements dr graham was held to a degree of patient care now when the gram case became before the board the initial charge was failure to maintain credentialing which is very similar to what's going on in dr kim's case which is however in graham the bird sop the underlying specifications and engram the agency produced six specific specifications of patient care with the patient records the diagnosis the  and agencies response very illogical and simply made no sense or there's no evidence on the record as to how it happened mccarthy was citing official reached the conclusion that it was illogical how the writing made no sense and the written submissions were not put into the record now without an articulation as to how the deciding official reached the conclusion as to why it was illogical and made no sense there's no opportunity for dr ken to reasonably respond and furthermore without that articulation the judge couldn't have reached the conclusion that was accurately measured the metric what's the specific underlying evidence that led to the conclusion that that metric was reach she accurate measurement was addressed and under the words decision is based on a person's o p m the a j is required to set for specific discussion and legal reasoning as to how she reached inclusions of law such as the requirement that the performance of the tensions from administrative judge statements such as she found that petitioner did not seem to understand the importance of the benchmarks at that at the decision to level however the supervisor that she cite hudson was asked did you make notes on the benchmarks and which ones he covered which ones he didn't the supervisor testified no i did not you didn't actually keep track benchmark of benchmark no i didn't keep track it off  so are twenty ninth the general rule is that performance standards must to the maximum extent feasible permit the accurate appraisal performance based on objective criteria and must be reasonable realistic and clearly stated in writing it's clear from the record that many of these supervisors did not and they admitted at hearing that they did not review dr king's performance objectives prior to evaluating him they didn't review his position description they didn't review and they didn't they admitted they didn't write made him according to these benchmarks that they were supposed to that's not acceptable and furthermore they would have been communicated in advance many of the supervisors testified that they just seem to observe and believe that he was performing in a certain way and that they didn't think that it was so the level that their satisfaction when asked what little satisfaction was there was and this is in the brief there was different accounts as to what a passing grade was some said a c some said it was satisfactory but not well enough some said that the deciding official said he just didn't feel comfortable as to the level of performance that does not allow for dr kim to reasonably understand with any specificity what the alleged performance problem was he was not able to respond to that objectives in advance in writing and then reminded of them again four months later i was provided continuous training and feedback about his performance through at one of your hours mention three chances that sort of the cation and he failure to meet the objectives throughout the process ultimately ending up in his being removed and petitioners counsel has made many statements about the inadequacy of the record but i think his characterization of the in a high level g s fourteen position and senior civilian member of a team that saw mission with to go to military installations around the world and determine whether or not those military installations were secure from terrorist attack he was a structural engineer who was expected to evaluate the installations from an engineering standpoint but equally important and this is where he really could not perform he had to be able to communicate in writing and verbal and to the installation were mostly military why the installation did or did not meet the benchmarks and what could be done to improve it and to do this in layman's terms rather than in the terms of a structural engineer i just like to give you a few examples of the types of  so he step by step told mr dr kim what he was doing wrong similarly similarly mr seth he said that he carried the benchmarks with him and told dr king each step of the way this is what you did wrong here this is what you did wrong here this is what you did different counts and different methodologies for appraising dr tim well that's not accurate either all of them knew their jobs they had done it numerous times and knew what was required each step of the way for an assessment to be done dr kimie been given training on what was to be done dr king was assigned me senior instructors to tell him each step of the way what needs to be done and in the context of the benchmarks and as i already mentioned the benchmarks are important and the senior the military the top military personnel start to walk out because they simply couldn't understand what dr kim was trying to say he would put up slides in his observations didn't let's measure didn't match up to the slides is recommendations didn't match up to the slides and all of this is in the record people testified about it and there was written test there was documentary evidence along the way as well in his last performance in his during his last attempt in paris island and charleston south carolina he wrote a report and i think mr owing implied that the team chiefs who testified weren't clear about what was wrong or other than it made no sense but the record clearly reflects that the report was late the final draft was full of mismatch content and recommendations he needed help writing it and you needed help rewriting it at that point the report was still an acceptable he had mismatched discussion and his options and options with the wrong recommendations and here we're talking about highly technical material you have to lay out the technicalities and then explain what needs to be done he didn't follow procedure and he had the reference to wrong unified type standards another time when he was giving a slide show he was he was citing the wrong department defense standards in trying to explain to an installation what well how their anti terror system was working he understood the engineering but he  tied in to an i terrorist considerations and convey that either the two team chiefs the military personnel on his own team or the military installations and the record is clear about technical engineering questions of the team so he said the doctor came up hey i'd like get into these questions could you can back in twenty four hours well this is on the last attempt he came back up to twenty four hours and he couldn't you couldn't come up with the answers this type of performance is just unacceptable under any standard but if you look at the three standards that were set out by the agency he clearly didn't meet them he couldn't conduct assessments in accordance with god finds he didn't properly prepare to conduct assessments he she didn't meet the training every way except that he was a competent engineer and i just also like to emphasize that for purposes of chapter seventy five you don't need to have an off the shelf checklist by which the person should be evaluated in this case like i said all of his supervisors knew what he was supposed to be doing and they did report to the team chiefs about what his failings were both in emails and in memos and and  incumbent in the position and let's look at the three standards that dr king was subject to and let's see how it didn't meet them referring back to the since the overwhelming evidence that she had already summarized so for mr owen to say that there wasn't a methodology set him an accurate or somehow get good tutorial briefings in which he skips slides or that he just didn't cover information in the record it was asked what information did dr cam not present during the briefings and none of the witnesses could identify what it is that he was alleged to have not presented now without knowing what it was that he was not presenting how was he to respond to that allegation other than simply invert yes i presented it in report saying that the reports were illogical that they didn't and they had mismatched information well that was mismatched what specific information was not covered adequately in that report that is not in the record that is not something that was presented the reports forty three performers it was because their marriage principles that congress interposed in chapter forty three this court recognized that any burden that would be placed on the appellant to have a chapter seven five performance from the world would be a really rated by the bigger burden placed on the by the preponderance of the evidence and therefore in a case such as this where there is just strict deference to the agency managers observations of their professional opinions that does not go give to the higher burden of proof that might be enough to reach substantial evidence under chapter forty please but under chapter seventy five there is a much higher burden of proof to show that it was reasonably and accurately measure there was no discussion of the judge's decision as to what the metrics were there is no discussion decision as to how the actual of valuation standards were reasonable it is true highly technical jobs can have subjective interpretations but there must be some tracking and reasonable articulation as to