this case has well many issues to central ones that i would like to point out this particular court the performance standard we believe was essentially rewritten by both the administrative judge in this case and  to what he was supposed to do in terms of successful performance of a change the word the administrative judge at the on the first initial decision stated that it was in the performance standard was and had a negative impact and then his performance descript performance plan the second part was before he had no more than four without a resulting negative impact and the distinction between the administrative judge classifying it as a situation where and applies as opposed to or which was in the original standard has the effect of making the standard more difficult for the individual to meet in this particular case we don't believe that the ministry of judge had that authority and that the board in saying that they would do so they would allow this to go ahead because mr manning they stated did not object at the authority t change the standard because if they if they change the standard is our contention that it be a violation of law in which case on the case would necessarily need to be cancelled and start over if our second point which involves not sure i understand what certain what or how this standard was changed it seems to me this standard was that if he it he committed more than two categories eight incidents or more than four category b incidents he would have been held in violation of their understanding yes your honor i think that at any time are unacceptable is the same thing as saying therefore you need no more than two and a and and no more than four b to show except the whole performance it's the same then well your honor respectfully we would contend and the reason why it was a bit difficult to at first understand it is because it is somewhat we can tend backwards at least under the the  he had in terms of the young the end standard now i mean what that goes to his notice i mean if it's a difference i think it's a different standard because if you have to prove hey listen i'm i'm i'm i'm a i'm a good performer because i didn't have you know because i didn't have more than two negative impacting things but you know if you have to it's confusing standard to say the least i think that what the biggest issue here is that the standard changed and i think it is a different standard because there was a confusion regarding what the what what heightened standard do you think that the a j held him to well i think the in the first initial decision the judge said ok here are the two errors and therefore we're going to we don't really need to go much further and well but there is a problem there exists a simple the the a j didn't appreciate the fact that no more than more than two men not order the the administrative judge to take hearing and testimony it would seem to be have been in order because the board said it was and you should consider credibility finals and when i went back on remand there was no mystery man did attempt to to preserve his rights by you know he had he hadn't expressed his desire for a second hearing he had also stated that but you know i mean the agency stopped agency didn't go it going to trying to attempt to prove these issues so when it came back and remained in the issues came back in and mr mr manning stated that you know he was to have a hearing and then the agency attempt the agency had attempted to first shift shift the categories on the board rejected that approach but how do we move one from category b in the category and that was dismissed but the big issue is that let me let me ask you question and first hearing where evidence was in there was a request for a second hearing which was not  excellent point your honor i think the the the the bigger issue for mr manning is well amid that doesn't answer my question first of us did he have the opportunity to call witnesses the third incident was the subject of of the first  hearing and he had a full opportunity to call whatever when he didn't know what the what the result was going to be he didn't know whether they were going to pick to a pick three or four they don't know what they were going to mislead the activity at that time to put on whatever testimony he wanted to know so where's the prejudice in not getting the second hearing that he requested prejudice goes up goes straight back your honor to the stand and i know that i maybe i'm harping on that quite a bit but i think it makes a distinction and it's something that i've thought about quite a great deal when you say when you move from an to or and when you have that sort of confusion a under five u s c four three zero three you couldn't have been the agency could have communicated her it correctly the standard to to mr manning if he's supposed to have a standard that says you can have acceptable era rates that that are a or b it's changed to a and b the board says that it's acceptable because this really didn't object and then you know what happens is that the whole action frankly it's our opinion would have to go right back to be canceled because it wasn't a legitimate performance and run a four three o three that's a big point your honor i manning clearly understood that that was the correct way to read the performance improvement plan standard because in his petition for you to the full board his first petition for review he actually stated the foreman standard exactly that way arguing the agency hadn't proved that he had three instances under category a and that that's what they needed to do to demonstrate an acceptable formants and even in his brief on appeal to this court he said the board agreed with mine interpretation of performance standard in their decision re manning it to the minister of judge so it's very clear that the board did properly interpret the form standard that mr manning agreed with that interpretation and it it's the only interpretation that makes any sense otherwise mr manning basically would be saying that he could make an unlimited number of errors under the more serious category as long as he didn't make more than four minor it clearly wouldn't make sense with respect to the second issue that mr manning addressed on during argument and that pertains to his ability to introduce evidence after the remain and i think the court's questions indicate t realize the yes the hearing the initial hearing that was held evidence was introduced by the agency as to all five of the incidences contained in category are listed under category and mr manning did have an opportunity at that time to put in any evidence that he wanted to with respect to those incidences he did testify on his own behalf mr and not exactly sure how to pronounce this name  who is one of the employees whose actions were somewhat involved in the charges also testified so there was really no harm in not having a second hearing the other argument that mr manning says he would have addr been a second hearing on remand is that he says he would have been able to put in more evidence about the reasonableness of the standard and says that he wasn't able to put in that evidence even at the first hearing but the joint appendix pages that he cites to indicates that the evidence he was actually attempting to put in did not go to the reasonable news of the performance standard rather he was attempting to go back and challenge the initial performance appraisal the negative performance appraisal that led t agency's decision to institute the performance improvement plan in the first place you want to go back and challenge that negative performance appraisal which was not the action the adverse action that was before the board and so the initial judge said no we are not going to go all the facility particularly i think he argues that there was no substantial evidence of a negative impact their performance improves land did require that there be under the category a failure is that resulted in some kind of a negative impact timelines but what mr manning doesn't seem to recognize is that the negative impact didn't specifically have to be a missed deadline and the agency didn't even have to demonstrate that x number of days or minutes or hours were lost it simply had to and incidents there was evidence by the agency that mr manning failed to move the project along that he failed to have the information necessary to move the projects on and that supervisors had to get involved get the information so that the decisions word or because the agency proposed the appellant removal for an acceptable performance of this critical element without even charging the opponent with committing more than forwards on the second category of of errors it is apparent that's the key word for us it is apparent if it is a pity it is it is open and it is our contention that it wasn't extremely clear the power that the petition was not on notice therefore under five u s c four three zero three and as a result you know that falls right into the substantial element substantial evidence argument that miss stern mentioned a second ago i don't think that you can meet the fo test for that by saying ok you're on notice and it was communicated to you and you have a reasonable opportunity to improve so i it's a it was a difficult argument for me to review to make because you really have to think about how and then or interact here but when the board says because it's apparent from the evidence that that they can change the standard the appellant respectfully disagree and we request that this honorable court remain