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No. 2011 - 3177
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Richard L. Abrams v. Social Security Administration
CERTIFICATE OF INTEREST
Counsel for the amicus Association of Administrative Law Judges certifies
the following (use “None” if applicable; use extra sheets if necessary):
1. The full name of every party or amicus represented by me is:
Association of Administrative Law Judges
2. The name of the real party in interest (if the party named in the
caption is not the real party in interest) represented by me is: NONE
3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by
me are: NONE
4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or
agency or are expected to appear in this court are: NONE
_________________________
Date Donald J. Willy
Attorney for Association of Administrative Law Judges
Please Note: All questions must be answered
cc: Counsel for Parties of record served with brief.
2
Amicus Curie Brief of the Association of Administrative Law Judges
I. Table of Contents:
Certificate of Interest ………………………………………………… 1
Table of Contents …………………………………………………… 2
Table of Authorities …………………………………………………. 3
Identity of Amicus Curie, Its Interest in This Case, and
Authority to File ……………………………………………….……. 6
Consent of Parties to Filing Amicus Brief …………………………. 6
Statement Concerning Contributions by Amicus and
Counsel Per Rule 29 (C) 5 ………………………………………….. 6
Summary of Argument ……………………………………………… 7
Argument …………………………………………………………….. 11
a. § 556 of the APA, ALJ Job Description, and the SSA/AALJ
CBA place Judge Abrams Solely in charge of Cases. He cannot
be removed for Exercising This Authority…………………….. 20
b. The Law and CBA Take Precedence Over Agency’s Authority. 29
Conclusion and Prayer for Relief ………………………………….... 36
Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements and Type Style Requirements ………………………. 37
Certificate of Service …………………………………………………. 38
3
II. Table of Authorities:
Cases:
Association of Administrative Law Judges v. Heckler, 534 F. Supp.
1132 slip op. at 20 (D.D.C. 1984) ………………………………….… 16, 22
Bentley v Director (1978) 7 BRBS 757 ……………………….…………. 29
Bono v. Social Security Administration, W.D. Mo., Civil Action No.
77-0819-CV-W-4 (July 26, 1979 – settled prior to trial) ……….…...…… 16
Brennan v. Department of Health and Human Services, 787 F.2d. 1559 (Fed Cir, 1986) ………………………………………………….……….… 8
Butz v. Economou, 438 U.S. 478 (1978) ………………………..……. 32, 33
Deweese v. TVA, 35 F.3d. 538, 542 (Fed Cir, 1994 …………………….…. 8
DOD, Domestic Dependent Elementary and Secondary Schools, 61 F.L.R.A. 327 (2005). …………………………………………..….… 29
Goldberg v. Kelly, 397 U.S. 254 (1970). ……………………………..….. 32
Goodman v. Svahn, 614 F.Supp. 726, 732 (DC, DC, 1985) ………….... 10
Gutkowski v. USPS, 505 F.3d. 1324, 1328 (Fed Cir, 2007). ……………. 8
Huisman v. Air Force, 35 MSPB 378, 380 (1987). ……………………… 9
In the matter of: William J. O'Brien, 1 M.S.P.B. 128 …………..……… 21
In re Murchison, 349 U.S. 133, 136 (1955) ……………………..……… 32
Nash v. Califano, 613 F.2d 10 (2d Cir. 1980) ………………... 16, 25, 33, 34
Nash v. Bowen, 869 F.2d 675 (2nd
Cir., 1988) …………..…… 10, 16, 22, 32
Ohio Bell Tel. Co. v. PUC, 301 U.S. 292 (1937) …………..…………… 32
4
Owens v Westmoreland Coal Co. (1979) 10 BRBS 460 ……………….. 29
Phillips v. GSA, 878 F.2d. 370, 373 (Fed Cir, 1989) …….………………. 11
Ramspeck v. Trial Examiners Conference, 345 U.S. 128, 73 S. Ct. 570, 97 L. Ed. 872 (1953) ….…………………………………………………. 33
Social Security Administration v. Brennan, 19 MSPR 335 (1984) ..12, 21, 35
SSA v. Balaban, No. HQ75218210014 (MSPB Feb. 9, 1984) …………… 21
SSA v. Boham, 38 MSPR at 540, 543 …………………………..… 15, 34, 35
SSA v. Goodman, 19 M.S.P.R. 321 (1984) ……………………….……..
…………………………………….. 9, 10, 13, 17, 18, 20, 21, 22, 29, 30, 35
Social Security Administration v. Manion, 19 M.S.P.R. 298, aff'd,
746 F.2d 1491(Fed. Cir. 1984). ………………………………………… 9
SSA v. Shore, No. HQ75218210013 (settled April 8, 1983) ……...…… 20
United States v. Abilene & S. R. Co., 265 U.S. 274, 288-289 (1924) … 32
USDA Food Safety and Inspection Service, 62 F.L.R.A. 364 (2008) ….… 29
Ward v. Village of Monroeville, 409 U.S. 57, 61-62 (1972) ………….….. 32
Wong Yang Sung v. McGrath, 339 U.S. 33, 45-46 (1950). ……….……. 32
Statutes:
Administrative Procedures Act, 5 U.S.C. §7521. ………………….. 8, 30
Administrative Procedures Act, 5 USC §556-557. ……………………. 20
Administrative Procedures Act 5 USC §556(c.)5 …………………… 10, 24
Administrative Procedures Act, 5 U.S.C. §4301 ……………………. 15, 32
5
Administrative Procedures Act, 5 U.S.C. 7106(b)(1). ………………....… 29
Administrative Procedures Act, 5 U.S.C. §7521 …………………...…….. 8
Code of Federal Regulations
5 C.F.R. §930.211 …………………………………………………… 15, 32
5 C.R.R. 1201.56(a)(ii). …………………………………………………… 8
5 C.F.R. §1201.121(b) …………………………………………….……… 8
Executive Orders and Federal Register:
Executive Order 13522, December 9, 2009, President Obama ………….. 29
48 Fed. Reg. 33946 (July 26, 1983) …………..………………………….. 30
Treatises, Law Reviews, Reports:
Admin. Conference of U.S., Federal Administrative Law Judge Hearings
Statistical Report of 1976-78 (1980) ………….……………………….… 31
Casey, Kevin; Camara: Jade, Wright, Nancy, Standards of Appellate Review
in the Federal Circuit Substance and Semantics, Federal Circuit Bar Journal,
http://www.stradley.com/library/files/krc-standards.pdf. ………………. 10
McCarran, Pat Three Years of the Federal Administrative Procedure Act
– A Study in Legislation, 38 Geo. L.J. 574, 582 (1950) ………………. . 31
Verkuil, Paul R., Reflections upon the Federal Administrative Judiciary,
39 UCLA L. Rev. 1341, 1353 (1992) ………………………………….… 31
Other:
ALJ Job Description ………………………………….…….… 13, 15, 23, 24
AALJ/SSA CBA ………………………………………..……. 14, 20, 24, 27
6
III. Identity of Amicus Curie, Its Interest in This Case, and Authority
to File
The Association of Administrative Law Judges (AALJ) is the labor
union partner to the AALJ/Social Security Administration (SSA) collective
bargaining agreement (CBA) authorizing representation of all non-
management Administrative Law Judges (ALJ’s) employed by SSA. Judge
Abrams is a member. Because any decision to remove Judge Abrams
directly affects other ALJ’s represented by AALJ, we have an interest in
briefing. AALJ previously filed an MSPB amicus brief.
AALJ supports REVERSAL of the MSPB decision.
IV. Consent of Parties to Filing Amicus Brief
Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have
consented to filing of this amicus brief.
V. Statement Concerning Contributions by Amicus
and Counsel Per Rule 29 (C) 5
None of the following occurred:
(A) a party’s counsel authored this brief in whole or in part;
(B) a party or a party’s counsel contributed money that was intended to fund preparing or submitting this brief; and
(C) a person — other than the amicus curiae, its members, or its
counsel — contributed money that was intended to fund preparing or submitting this brief.
7
VI. Summary of Argument.
ALJ’s are independent adjudicators, but remain employees of the
agency whose administrative law cases they hear. The agency is a party to
these cases. Agency management must not influence the integrity of the
ALJ’s adjudication process, the non-agency party’s right to petition an
“independent” judge for redress of grievances, or that party’s due process
rights. ALJ independence is designed to maintain public confidence in the
Social Security benefits allocation process. An agency that directs progress
of live cases through the ALJ’s docket interferes with judicial independence,
influences integrity of the process, and exercises or threatens undue
influence over the ALJ.
ALJ removal actions must balance the executive branch’s authority to
manage its employees, with judicial independence. To protect against
agency influence, ALJ’s have employment shields beyond ordinary federal
employees. ALJ performance is not subject to review. “Qualified” judicial
independence is not identical to Article III judicial independence.
Nonetheless, Judge Abrams removal has a detrimental effect on all judges.
Judge Abrams’ relied upon statutory protections not inherently different
from Constitutional protections afforded Article III judges. He is a
“lifetime” appointee. His decisional independence is essentially the same as
8
Article III judges. In addition to statutory protections Abrams’ ALJ job
description incorporates administrative safeguards in the SSA/AALJ CBA.1
An agency may remove or suspend an ALJ “only for good cause
established and determined by the MSPB on the record after opportunity for
hearing”.2 The standard of proof is a preponderance of the evidence.
3 If the
charges are supported by this evidence, MSPB must determine whether the
judge’s conduct constitutes good cause to effect proposed discipline.4
SSA’s complaint is Abrams failed to obey their orders. Did he simply
not meet the agency’s irrelevant higher expectations, or did he commit
willful misconduct? Performance review is prohibited; Abrams cannot be
removed simply if he failed to meet an agency’s performance expectations.
The initial decision and record illustrate Abrams is a performance case
constituted as a misconduct complaint. Because an agency cannot review
judicial performance, it cannot discipline based on a prohibited performance
1 Union contractual provisions are treated the same as agency regulations. Deweese v. TVA, 35 F.3d. 538, 542 (Fed Cir, 1994); Gutkowski v. USPS, 505
F.3d. 1324, 1328 (Fed Cir, 2007). 2 5 U.S.C. §7521.
3 5 C.F.R. §1201.121(b); 5 C.R.R. 1201.56(a)(ii).
4 Brennan v. Department of Health and Human Services, 787 F.2d. 1559
(Fed Cir, 1986).
9
review, quota, or benchmark. That Judge Breakbusch and the MSPB find it
necessary to overtly distinguish that Judge Abrams is being disciplined for
failure to obey, and not failure to meet benchmarks demonstrates the
impropriety of discipline approved by MSPB.5
Of course, SSA is permitted to engage in general management of
employees, including ALJ’s. However to safeguard adjudications, ALJ’s are
protected from management influence of decision making. Agencies can
order judges to perform judicial functions, provided such directives do not
interfere with independence. SSA v. Goodman, 19 M.S.P.R. 321, 331
(MSPB Feb. 6, 1984).
While we have allowed administrative law judges to be
disciplined for failing to follow instructions, we have also held
that they cannot be disciplined for failing to comply with
instructions which constitute an improper interference with their adjudicative functions. Social Security Administration v.
Manion, 19 M.S.P.R. 298, aff'd, 746 F.2d 1491(Fed. Cir. 1984).
Directing a judge to change live case status, as HOCALJ McPhail
ordered Judge Abrams, violates qualified judicial independence because the
directions were outcome determinative. A judge cannot be disciplined for
failing to do something immune from management interference. SSA’s four
orders are not generic steps to improve ALJ production such as anticipated
5 MSPB must look to the true nature of the charge. Huisman v. Air Force,
35 MSPB 378, 380 (1987).
10
by SSA v. Goodman, 19 M.S.P.R. 321 (MSPB Feb. 6, 1984).or Nash v.
Bowen, 869 F.2d 675 (2nd
Cir. 1988). These orders violate APA §556(c.)5
directing presiding employees “shall regulate the course of the hearing”.
Each order directs Judge Abrams to make final or interlocutory “judicial
decisions”.
Judge Breakbusch, whose decision was adopted by the MSPB in a
“Nonprecedential Final Order” (App. 19 et seq.), made serious errors of law.
She misinterpreted the Administrative Procedures Act (APA), code of
Federal Regulations, ALJ job description, and the AALJ/SSA CBA, all of
which govern Judge Abrams job performance. This court is entitled to
review her determinations de novo as an erroneous interpretation of statutes,
administrative regulations, and public contractual (CBA) agreements.6
Judge Abrams protested the four orders7, but nonetheless attempted to
comply within the law, and using the time and resource capabilities provided
to him by SSA. Goodman v. Svahn, 614 F.Supp. 726, 732 (DC, DC, 1985)
6 Casey, Kevin; Camara, Jade, Wright, Nancy, Standards of Appellate
Review in the Federal Circuit Substance and Semantics, Federal Circuit Bar
Journal, http://www.stradley.com/library/files/krc-standards.pdf. 7 Initial Decision, pages: 60, 61, 77; App. 86, 87, 103.
11
confirms that resisting orders and defending a removal action is apropos.
Failure to achieve success in obeying an order is not insubordination.8
V. Argument.
The APA, ALJ job description, and AALJ/SSA CBA protect a judge’s
independent management of a live case’s status. To advance from one judge
controlled status to the next, a quasi-judicial decision is necessary. While
agencies may attempt to improve overall ALJ productivity within the bounds
of federal labor law and an applicable CBA, they may not interfere with
management of live cases when a judge is exercising qualified judicial
independence. This is distinguished from an agency exercising general
office management – performing such tasks as leave administration, office
assignments, travel, docket assignment, etc.
Judge Breakbusch sidesteps this important distinction by finding that
SSA’s directives to Judge Abrams were reasonable, and do not interfere with
his ability to provide full and fair hearings and render impartial and
complete decisions. She states interalia, on page 51 of the initial decision
(App. 77) that “good cause exists for disciplinary action sought by the
agency because Respondent failed to follow the reasonable instructions …”
She continues finding that “the HOCALJ’s instructions not only were
8 Phillips v. GSA, 878 F.2d. 370, 373 (Fed Cir, 1989)
12
reasonable because it advanced the agency’s mission of fairly and promptly
adjudicate claimants’ cases, but they also were careful not to affect the
Respondent’s ability to provide full and fair hearings and to render impartial
and complete decisions.” If a judge thinks additional information is needed
to provide a fair hearing, but the agency disagrees, which prevails?
Qualified judicial independence presumes the judge is correct. Monday
morning quarterbacking by Judge Breakbusch is superfluous.
Judge Brakebusch correctly states that good cause is to be interpreted
in accordance with the legislative intent of the APA.9 She admits that good
cause does not exist if the basis for the charges constitutes an improper
interference with the ALJ’s qualified judicial independence.10
Then she
commits an appalling legal error. Using limited precedent concerning good
cause for disciplining an ALJ, Judge Brakebusch cites cases involving
judges’ discipline grounded upon general office management to justify
discipline for failure to obey an order. Beginning on page 46 (App. 72) of
her initial decision, Judge Brakebusch recites examples of “good cause” for
removal of an ALJ. None of the eleven examples cited, and no case which
9 See Initial Decision pages 43-44 (App 69-70).
10
Social Security Administration v. Brennan, 19 MSPR 335 (1984).
13
this attorney has been able to discover, finds good cause to remove an ALJ
for failure to obey an order related to changing status of live cases. The key
to Judge Brakebusch’s ruling appears to be that Judge Abrams was ordered
to do something, and because it was an “order”, this magically changes the
complaint from poor performance to misconduct. In Goodman, the MSPB
recognized problems distinguishing performance based charges against
misconduct charges
“Moreover, the distinction between poor performance
and misconduct can be illusory. For example, a case based upon a charge that work is of unacceptable quality is a performance-
based action. On the other hand, if the agency charged that the
same poor work resulted from the employee's failure to follow
instructions, the case would present a misconduct charge based upon insubordination.” Goodman p. 330.
Judge Abrams’ discretion is implemented in the OPM approved ALJ
job description11
and SSA’s OMB approved implementing regulations12
11
“Under the provisions of Titles II, XVI and XVIII of the Social Security
Act and applicable Federal, State, and foreign law, and in conformity with the Administrative Procedure Act, and with full and complete individual
independence of action and decision, and without review, the
administrative law judge has full responsibility and authority to hold
hearings and issue decisions as stated under the above Titles.” (Emphasis added)
12
“Administrative Procedure Act prohibits substantive review and
supervision of the administrative law judge in the performance of his quasi-judicial functions of holding hearings and issuing decisions. His decisions
may not be reviewed before publication and after publication only by the
14
authorizing ALJ’s qualified decisional independence. SSA agreed to these
restrictions when it signed the SSA/AALJ CBA (Exhibit R-9 – to the
original hearing) – which incorporates the APA,13
existing regulations and
prior court and MSPB decisions,14
the ALJ job description,15
and a ban of
ALJ performance benchmarks.16
To legally order Judge Abrams to change a judge controlled status
requires amending the APA statute, altering the implementing regulations;
suspending the ALJ job description, and renegotiating the SSA/AALJ
CBA17
– a process SSA shortcut by filing MSPB charges.
SSA cannot supervise Judge Abrams’ qualified judicial independence.
However, he is subject to SSA control for general office management. What
is the difference between protected judicial independence, and general office
Appeals Council in certain prescribed circumstances. He is subject only to such administrative supervision as may be required in the course of general
office management.”
13
CBA, Article 5, Section 1.
14
CBA, Article 20.
15
CBA, Article 5, Section 2C.
16
CBA, Article 5, Section 1 and Article 5, Section 5A.
17
CBA, Article 2, Section 3A.
15
management? An ALJ’s judicial decisions affect both parties, and are
subject to appellate review. There is a standard of review. For example,
each order to Judge Abrams requires a “quasi-judicial determination” to
change case status – what evidence to use, discovery to conduct, credibility
of the claimant and that of objective and subjective evidence, the contents of
an opinion, whether the decision is ready for signature, and whether it is
appropriate to advance the case to the next status. Requiring an ALJ to
explain why he cannot change status on “live” cases is also prohibited.18
In contrast, “general office management” involves issues such as
timekeeping, leave, assignment of offices and courtrooms, and staffing.19
While office management affects Judge Abrams and indirectly, his ability to
decide cases, such directives do not order him to make quasi-judicial
determinations. Notably, these office interactions are covered by the
SSA/AALJ CBA, but in different articles.
18
From the ALJ job description: “He is subject only to such administrative
supervision as may be required in the course of general office management.” ALJ’s are not subject to performance reviews 5 U.S.C. §4301 and 5 C.F.R.
§930.211
19
For example, Judge Boham was disciplined primarily for refusing to travel to hear cases. SSA v. Boham, 38 MSPR at 540, 543
16
The charges against Judge Abrams are a reoccurring theme of
violations by SSA of the SSA/AALJ CBA, Unfair Labor Practices,
grievances, and labor actions between AALJ and SSA. SSA faces a huge
backlog of administrative cases. SSA wants to improve ALJ productivity to
fix the backlog. There are acceptable mechanisms to improve ALJ
productivity - change the court rules, hire more judges, or buy more
computers.
When SSA discovered that obtaining regulatory changes or
undertaking labor negotiations proved too difficult or time-consuming, it
unilaterally resorted to ordering ALJ’s to implement changes. In Judge
Abrams’ case SSA seeks to enforce ultra vires orders via MSPB disciplinary
proceedings. SSA’s attempts to “improve” ALJ productivity are not new.
They are the subject of extensive litigation, including interalia: Bono v.
Social Security Administration, W.D. Mo., Civil Action No. 77-0819-CV-
W-4 (July 26, 1979 – settled prior to trial); Association of Administrative
Law Judges v. Heckler, 534 F. Supp. 1132 slip op. at 20 (D.D.C. 1984);
Nash v. Califano, 613 F.2d 10 (2d Cir. 1980); Nash v. Bowen, 869 F.2d 675
(2nd
Cir., 1988).
Charges filed by SSA against Judge Abrams are not the everyday
business terminating a non-productive employee. Judge Abrams did his job
17
according to existing rules. Disciplining Judge Abrams is a bold initiative by
SSA in contradiction to previous agency positions, and after the failure of
Goodman20
to remove an ALJ for performance issues. Instead of focusing
on numbers of final decisions as in Goodman, SSA is now scheming to
interfere with the ALJ’s statutory authority to regulate the course of hearings
by focusing on status of “live” cases progressing through adjudication.
Judge Goodman was counseled and given an opportunity to improve. Judge
Abrams was counseled, and ordered to adjudicate. Like Goodman, Abram’s
inability to increase productivity was a direct result of the methodical
20
“In the absence of evidence demonstrating the validity of using its
statistics to measure comparative productivity, the agency's case ultimately
rests upon inferences which we would not be justified in drawing. On the record in this case, in order for us to find that respondent's productivity was
unacceptably low, we would have to infer that the nationwide average
constituted a measurement, or a guide to a measurement, of reasonable
productivity. This inference is necessary because, in the absence of a measure of reasonable performance, a conclusion that issuing 190 case
dispositions per year was unacceptably low productivity, would amount to
pure speculation. Similarly, we would have to infer that case disposition statistics could rationally be used as a measure of comparative productivity,
despite the fact that the nationwide average included dispositions in different
types of statutory appeals and included different types of dispositions such
as dismissals, short form reversals, and affirmances, both on the written record and after a hearing. Only if approximately the same amount of time
was required to render most final dispositions would we be justified in
inferring that comparative productivity could be measured by case
disposition statistics or that the nationwide average established a guide for measuring reasonable productivity.” SSA v. Goodman, 19 M.S.P.R. 321, 331
18
manner in which he handled cases. Goodman, p.325. Just as SSA’s
Goodman attempt to hijack the adjudication process failed because there was
no statistical evidence, there is no statistical basis for mandating
interlocutory decisions (benchmarks).21
Is Judge Abrams a poor performer or a case of misconduct? Judge
Breakbusch in her Initial Decision, page 66 attempts to mask performance
issues in misconduct:
Respondent cites the Board’s decision in Goodman … in
which the Agency sought the removal of an ALJ because his disposition rate was approximately half of the nationwide
average. In its decision, the Board concluded that where the
Agency’s entire case rested upon comparative statistics, proof
of their validity is an essential element of the Agency’s case. Id at 331. I do not find the Board’s decision in Goodman to be on
point with respect to the issue of the reliability of the CPMS
records. Unlike the circumstances in Goodman, the Agency
used the CPMS record as a framework or starting point for determining the history for individual cases. In the final
analysis, compliance was ultimately determined by
Respondent’s individual response to the directives and not solely by numerical data.
Judge Breakbusch finds that discipline is based upon Judge Abrams
failure to follow orders. She mysteriously fails to inquire into the framework
that is the basis of the orders.
21
Abrams was directed to both advance cases through various stages of the adjudication process (POST, EDIT, ALPO, etc.) as well as make final
decisions.
19
SSA ordered Judge Abrams to do something which it had no legal
right to ask – effect status changes in live cases before he thought it was
proper to do so. In four orders22
HOCALJ McPhail directs Judge Abrams to
“adjudicate”, “decide”, “sign”, “correct”, and “issue instructions” in cases.
Judge Breakbusch acknowledges interalia, that the directives concerned
cases in judge controlled status (i.e. Initial Decision, page 29; App. 55). It is
22
HOCALJ McPhail issued four orders to Judge Abrams:
(1.) June 14, 2007 – a direct order to decide aged cases or provide explanation of the intended course of action by June 22, 2008.
McPhail selected the cases based upon the benchmarks or that would
be 1,000 days old (Initial Decision, page 15, App 41). Abrams was to
review 53 cases within 7 days while performing his other judicial duties, including conducting 16 hearings. (Initial Decision pages 15-
22)
(2.) January 22, 2008 – a directive that Abrams decide and issue
instructions on all cases in ALPO by January 31, 2008, adjudicate all
cases in SIGN by January 25, 2008, and review all cases in EDIT and
correct or adjudicate them by February 7, 2008. There were 195 cases listed. (Initial Decision pages 23-25, App. 49-51))
(3.) May 7, 2008 – ordered to adjudicate 2 cases in SIGN by May 9, 2008, and complete review and corrections for 3 cases in EDIT by May 13,
2008; decide and issue instructions on 4 cases in ALPO by May 16,
2008, and review 10 cases in ARPR and put them into PRE or RTS by
May 23, 2008. (Initial Decision pages 25-30; App. 51-56))
(4.) August 19, 2009 - direct order to adjudicate 3 cases by August 20,
2008, adjudicate cases in EDIT and SIGN by August 22, 2009, and to
take substantial steps toward issuing a decision in cases in ALPO by August 29, 2009. (Initial Decision pages 34-38; App 60-64))
20
improper for the Agency to order a judge to change status of active cases.
The law vests discretion in him to make this decision.
A. § 556 of the APA, ALJ Job Description, and the
SSA/AALJ CBA place Judge Abrams Solely in charge of
Cases. He cannot be removed for Exercising This Authority.
Judge Abram’s OPM approved job description, the APA, and CBA
law make him solely responsible for determining the course of adjudication
of live cases assigned to him. Precedent grants an Agency some control
over ALJ handling of cases to encourage ALJ productivity. However, no
instance involves a CBA expressly prohibiting standardization of output or a
result, and benchmarks relating to time within status.
HOCALJ McPhail’s four orders relate to productivity – time for cases
to progress through various interlocutory statuses to final decision.
Acceptable ALJ productivity has never been defined. McPhail selected
cases based upon “benchmarks”. However, the applicable labor agreement
governing Judge Abram’s employment with SSA, Article 5, Section 5 of the
AALJ/SSA CBA prohibits any benchmark. CBA Article 5, Section 1
rejects standardization of output produced or results accomplished, and
entrusts quasi judicial decisions to the ALJ’s discretion, knowledge, and
judgment. As noted in Goodman, disability cases are necessarily more or
less complex. The ability of the individual judge is necessarily faster or
21
slower as is his propensity to observe complex legal issues which he may be
obligated to develop.
Historically SSA filed four “productivity” cases with MSPB -
O’Brien23
, Goodman24
, Brennan25
and Balaban.26
ALJ productivity has
been the subject of controversy in other court cases involving its
administrative law judges claiming infringement of qualified decisional
23
In the matter of: William J. O'Brien, 1 M.S.P.B. 128 Stipulation of
settlement with assurances by the respondent that with some changes in his staff he will increase the number of case dispositions.
24
SSA v. Goodman, supra; SSA v. Shore, No. HQ75218210013 (settled
April 8, 1983) discussed infra. 25
SSA v. Brennan, No. HQ75218210010 (MSPB June 23, 1983)
(administrative law judge discipline for low productivity and misconduct relating to contemptuous, disrespectful and abusive remarks to HOCALJ;
judge claimed that chief judge could only “go through the motion” of
conducting hearings in issuing 80-90 decisions per month) reversed and
remanded No. HQ21210010 (MSPB, Feb 6, 1984) Board found sufficient grounds for a 60 day suspension based on office administration as ALJ did
not have fair opportunity to defend productivity charges.) On appeal to the
federal circuit, Brennan v. HHS, 787 F.2d. 1559 (Cir. Fed, 1986) affirmed holding that the ALJ failed to comply with office procedures.
26
SSA v. Balaban, No. HQ75218210014 (MSPB Feb. 9, 1984) (low
productivity and failure to carry an acceptable workload; judge heard about half as many cases as national average but that average could not validly
measure comparative productivity because cases differed in difficulty;
judge’s workload compared favorably with other judges in his office and
workload was determined by volume of claims filed in that office; charges dismissed).
22
independence. For example, Nash v. Bowen, 869 F.2d 675 (2nd
Cir. 1988)
discussed whether the Secretary’s non-acquiescence and quality assurance
programs violated the APA. All these cases preceded signing the
SSA/AALJ CBA.
Like Goodman, Abrams case involved a matter of first impression for
MSPB. No previous cases deal with disciplining an ALJ who is unable to
comply with a direct order concerning progressing cases through various
interlocutory statuses. As noted infra, in Goodman, p. 330, the MSPB
recognized the problem of distinguishing performance based charges against
misconduct charges.
Judge Brakebusch’s Initial Decision obfuscates the issue. She says
Abrams should be disciplined for conduct in “failing and refusing to follow
the instructions contained in the four directives issued to him over a 14-
month period”, but ignores that the orders are based entirely on
“benchmarks” banned under the CBA.
When Richard Abrams accepted an ALJ appointment, his
responsibilities and prerogatives were clear. The OPM Position
Description27
reflects the ALJ’s job responsibilities:
27
The ALJ Position Description is an appendix to Association of Admin.
Law Judges v. Heckler, 594 F. Supp. 1132 (D.D.C. 1984).
23
Under the provisions of Titles II, XVI and XVIII of the Social
Security Act and applicable Federal, State, and foreign law, and in conformity with the Administrative Procedure Act, and with
full and complete individual independence of action and
decision, and without review, the administrative law judge has
full responsibility and authority to hold hearings and issue
decisions as stated under the above Titles. (Emphasis added)
Judge Abrams job description has not been changed. His position
description lists nineteen specific functions28
which ALJ’s are expected to
28
(1) dismiss or allow requests for hearings and rule on requests for
extensions; (2) identify problems and issues to be resolved; (3) analyze all
previously developed evidence and appraise previous licensing,
regulatory, and adjudicative processes by the administrative agency; (4)
determine whether there are other parties with adverse interest to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas;
(6) correlate and resolve conflicting evidence; (7) hear testimony and rule on
all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold pre-hearing conferences with the
appellant and/or his counsel and the government representative; (9) make all
evidence of record available to the parties and inform them of any evidence
or expert testimony required in connection with a material point or issue; (10) administer oaths and affirmations; (11) govern the conduct of the
parties at the hearings, and in general regulate the entire course of the
proceedings; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence
deemed necessary for the completion or full development of the record; (14)
hear oral argument, and receive and consider briefs that are submitted; (15)
appraise the credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and
conclusions of law submitted by the claimants or government
representatives; (17) make findings of fact on each issue, giving the reasons
therefore and render conclusions of law as sole trier of fact and law; (18) fully consider all the evidence of record and issue decisions within the
requirements of the Administrative Procedure Act, which decisions are
24
perform “in conformity with the APA, exercising complete independence
of action and decision without review”.
The Article 13 of the CBA confirms ALJ authority and limits that of
the agency:
Judges play a vital role in the accomplishment of the OHA mission… In making hearing decisions, a Judge may
determine when a case is ready to be scheduled for a hearing,
conduct a full and fair hearing, when required, and must issue a
legally sufficient decision. The office of Hearings and Appeals has the authority to provide necessary support staff for the
Judges.
“Supervision and Guidance” within SSA’s position description
reinforce the APA prohibitions against interference in decisional functions:
The … Administrative Procedure Acts prohibit substantive
review and supervision of the administrative law judge in the
performance of his quasi-judicial functions of holding hearings
and issuing decisions. His decisions may not be reviewed before publication and after publication only by the Appeals
Council in certain prescribed circumstances. He is subject only
to such administrative supervision as may be required in
the course of general office management.
The statutory basis for these regulations is APA §556(c.)5 directing that
employees presiding at hearings: “regulate the course of the hearing”.
completely independent and final, signed only by him, and published to
parties in interest without prior review; and (19) entertain petitions for attorneys fees and issue orders designating the amount of fee permitted.
25
SSA’s ALJ’s are independent fact finders who inquire of claimants
concerning qualifications for benefits. The independence granted to ALJs
by the APA was designed, in large part, to maintain public confidence in the
process through which Social Security benefits are allocated. Nash v.
Califano, 613 F.2d 10, 16 (2d Cir. 1980). The ALJ looks after two
interested parties. The American public expects trust funds and
appropriations protected from inappropriate claims, and the claimant wants
his money. Judge Abrams’ independent duty to develop the record is
indistinguishable from his qualified decisional independence because he
applies the facts to law and awards or denies benefits.
The case status where Judge Abrams developed the record (ARPR and
POST), considered the evidence (ALPO and POST), and applied the law to
the evidence (EDIT) are part of his decisional process. Forcing Abrams to
change status effectively forces him to make quasi-judicial decisions that
determine outcome. If for example he must move a case from ALPO before
all the evidence is received, his decision is affected, because he does not
have all the facts. If he must sign a case, issuing a final decision, before he
considers it reasonable to do so, his final decision is mandated by SSA – a
party.
26
“Complete individual independence of action”, “without review”, and
“full responsibility and authority to hold hearings and issue decisions” does
not anticipate a HOCALJ’s order to “adjudicate”, “decide”, “sign”,
“correct”, and “issue instructions” on specific cases. The exact status items
which HOCALJ McPhail ordered Judge Abrams to change are protected
among the nineteen specific functions of footnote 28. HOCALJ McPhail
intended that Judge Abrams perform a judicial function – he directs Judge
Abrams to “adjudicate”, “decide”, “sign”, “correct”, or “issue instructions”
in his orders. All the status changes ordered by McPhail involve
components of the nineteen specific functions which ALJ’s are expected to
perform “in conformity with the APA. For example “ARPR” consists of the
ALJ’s “(3.) Analyze all previously developed evidence and appraise
previous licensing, regulatory, and adjudicative processes by the
administrative agency.” “POST” includes “(13.) introduce(ing) into the
record documentary and other evidence deemed necessary for the
completion or full development of the record.”; “appraise the credibility of
witnesses, and resolve conflicts in lay and expert evidence”; and “(16)
consider and dispose of proposed findings of fact and conclusions of law
submitted by the claimants or government representatives”. “EDIT”
includes “make findings of fact on each issue, giving the reasons therefore
27
and render conclusions of law as sole trier of fact and law”. Evidentiary
determinations such as made in ARPR, POST, or EDIT are ultimately
reviewed with an abuse of discretion standard. This distinguishes
adjudication from ALJ’s performing general office tasks.
Judge Brakebusch found that Judge Abrams did not adhere to the case
processing guidelines promulgated by Judge Christaudo.29
He was not
obligated to do this. The CBA, which governs Judge Abrams performance
on the job, covenants those benchmarks, will not be used as a basis for
any disciplinary action:
Article 5, Section 5
A. OHA has decided that the time frames set forth in
the “Benchmarks for the 03 Report” are guidelines for the
management officials and will not be used as a source of any
disciplinary or performance action. The Judges are encouraged by OHA to aim to meet the guidelines and
cooperate with benchmark reports. (emphasis added)
The CBA also addresses output or results standardization of ALJ work in
relation to a given period of time at Article 5, Section 1:
The parties recognize that the Judges covered by the terms of
this agreement are administrative law judges appointed
pursuant to 5 USC §3105, and are engaged in the performance of duties which require the consistent exercise of discretion,
knowledge and judgment in conducting hearings. These duties
29
On April 18, 2007, Judge Cristaudo wrote all RCALJ’s implementing
“guidelines” for facilitating case processing.
28
are complex and varied as set forth in 5 USC §7103(15)(A)(iv)
and are of such character that the output produced or the results accomplished by such work cannot be standardized in relation
to a given period of time.
McPhail admits he issued the four orders in response to SSA’s
backlog initiatives on 1000, 900, and 850 day old cases. Certainly SSA is
entitled to take steps to reduce case backlog. In fact it employed additional
ALJ’s, opened more offices, changed regulations, and has taken other steps
to remedy. These were all done in conjunction with authority granted by
Congress. These constitute general office management.
Finally, there is a scintilla arguing that Judge Abrams is being
removed from office for maintaining a horrendous docket, having poor
control over his docket, taking long times to decide cases, and otherwise
limiting disability benefits to claimants. Judge Brakebusch discusses
various times that cases were maintained in status, concluding that because
status was unchanged Judge Abrams did no work. There is no evidence for
her assumption. Judge Abrams and his clerks testified he was exceptionally
through in preparing cases for hearing, and this process was longer given the
age and type of cases he was considering. Judge Abrams cannot be
29
disciplined for thoroughness’.30
Goodman concluded that since cases were
different, statistical analysis was required. SSA did not offer statistics, or
comparisons; it relied upon undocumented benchmarks – the statistical
origin of which is uncertain.31
Fast or slow, Judge Abrams was appointed as
an ALJ by SSA. SSA may regret their decision. Judge Abrams may be a
pain in the ass. Nonetheless he is entitled to judicial independence. Without
changing the APA, there is simply nothing SSA can do except appeal
Abrams decision - like any other party.
B. The Law and CBA Take Precedence Over Agency’s Authority.
Abrams’ case is an inappropriate use of the MSPB disciplinary
process. SSA sidesteps its statutory32
and administrative33
obligation to
negotiate with AALJ and otherwise comply with federal labor law. If the
30
While conducting hearing, hearing officer has duty to inquire fully into matters at issue and receive in evidence any documents which are relevant
and material to such matters. Bentley v Director (1978) 7 BRBS 757; Owens
v Westmoreland Coal Co. (1979) 10 BRBS 460.
31
See Transcript 955-956, 964.
32
5 U.S.C. 7106(b)(1).
33 Executive Order 13522 (Obama), December 9, 2009; USDA Food Safety
and Inspection Service, 62 F.L.R.A. 364 (2008); DOD, Domestic Dependent Elementary and Secondary Schools, 61 F.L.R.A. 327 (2005).
30
MSPB final order is affirmed, SSA will have carte blanch to announce a new
policy, and implement it through discipline rather than negotiation.
A variety of stakeholders should have input to any change - the
American public, Congress, OPM, OMB, AALJ and many other entities -
those representing SSA claimants or engaging in the administrative process.
Stakeholder input concerning discipline contemplated by Abrams’ MSPB
opinion, is the same as in Goodman at 325:
This case presents an issue of first impression. To date there has
not been a final administrative or judicial determination that good cause to discipline an ALJ pursuant to 5 U.S.C.
§7521 could be established solely upon proof of poor
performance. Because of the importance of this issue to the
federal administrative adjudicatory process, we invited public comment (48 Fed. Reg. 33946 (July 26, 1983), and held oral
argument at which the parties, the interveners and two amicus
(the Office of Personnel Management and Administrative Law
Judge Simon Nash) participated.
MSPB invited no comments; heard no arguments for Abrams. Instead it
issued a non-precedential final order.
ALJ’s have qualified decisional independence because it is their job to
effectively implement the First Amendment’s right that individuals may
petition the government for redress of grievances. This provides due
process.
31
ALJ independence has been controversial since administrative
adjudication first appeared during Roosevelt’s administration. New Dealer’s
wanted agency power to be superior to parties’ rights to contest fairness, but
conservative interests demanded an unbiased hearing. The APA
compromised executive control over ALJ’s with demands for independence.
Congress allowed agencies to employ ALJ’s, but mandated that “[ALJ’s’
have] strict independence from participant or agency control … [as the] very
quality [that] motivated the drafters of the APA to create the agency
adjudication process in 1946.”34
A key influence was the perceived problem
of biased decision making by judges subject to agency control and pressure.
“[T]he APA was designed to correct these conditions”,35
and insulate ALJ's
from agency pressure in order to ensure impartiality and due process in
administrative adjudication. The sponsor of the APA in the Senate testified,
“[ALJ's] are to be very nearly the equivalent of judges, albeit operating
within the federal system of administrative justice.”36
34
Verkuil, Paul R., Reflections upon the Federal Administrative
Judiciary, 39 UCLA L. Rev. 1341, 1353 (1992). 35
Admin. Conference of U.S., Federal Administrative Law Judge Hearings
Statistical Report of 1976-78 (1980).
36
McCarran, Pat Three Years of the Federal Administrative Procedure Act
– A Study in Legislation, 38 Geo. L.J. 574, 582 (1950).
32
In Butz v. Economou,37
the Supreme Court ruled that ALJ's are
protected by the same immunity as Article III judges. The Court based its
ruling on the functional similarity between Article III judges and ALJ’s:
More importantly, the process of agency adjudication is
currently structured so as to assure that the hearing examiner
exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the
agency. Id. at 512-514.
Goldberg v. Kelly defined essential elements of due process in federal
administrative hearings.38
Due process requires an impartial and detached
judge.39
The Second Circuit Court of Appeals focused on ALJ decisional
independence in the Nash40
case. Nash was preceded by Nash v. Califano,
613 F.2d. 10, 15-16 (2nd
Cir. 1980) discussing relevant considerations to
agency activity which may impinge upon judicial independence:
The APA … section 4301 and its implementing regulation (5
C.F.R. §930.211) exempts ALJ’s from the performance ratings
37
Butz v. Economou, 438 U.S. 478 (1978). 38
The decision maker's conclusion … must rest solely on the legal rules and
evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U.S. 292
(1937); United States v. Abilene & S. R. Co., 265 U.S. 274, 288-289 (1924). 39
Ward v. Village of Monroeville, 409 U.S. 57, 61-62 (1972); In re
Murchison, 349 U.S. 133, 136 (1955); Wong Yang Sung v. McGrath, 339
U.S. 33, 45-46 (1950). 40
Nash v. Bowen, 869 F2d. 675 (2nd
Cir., 1989).
33
prescribed for other civil service employees. ALJ tenure,
moreover, is specially safeguarded by 5 U.S.C. §554, which provides that ALJ’s, unlike other civil servants, may not be
removed without a formal adjudication.
These statutory provisions draw upon the more ancient wisdom grounded in history and contained in Article III, which
safeguards federal judicial independence through still more
stringent compensation and tenure provisions. See Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681 (1979). The
independent judiciary is structurally insulated from the other
branches to provide a safe haven for individual liberties in
times of crisis. By analogy, "the process of agency adjudication is currently structured so as to assure that the hearing examiner
exercises his independent judgment on the evidence before him,
free from pressures by the parties or other officials within the agency." Butz v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894,
2914, 57 L. Ed. 2d 895 (1978).
It is clear that these provisions confer a qualified right of decisional independence upon ALJ’s. First recognized by the
Supreme Court in Ramspeck v. Trial Examiners Conference,
345 U.S. 128, 73 S. Ct. 570, 97 L. Ed. 872 (1953), this special
status is a creation of statute, rather than the Constitution. And as their role has expanded, the ALJ’s' functional comparability
to judges has gained recognition. …
The Social Security Administration has, moreover, recognized
the limitations upon its power over the ALJ’s' decision-making
process. The position description for ALJ’s issued by the
Administration's Bureau of Hearings and Appeals states that ALJ’s possess "full and complete individual independence of
action and decision . . . without review (and) full responsibility
and authority" for the conduct of hearings and the disposition of cases. "The Social Security and Administrative Procedure
Acts," the description continues, "prohibit substantive review
and supervision of the (ALJ) in the performance of his quasi-
judicial functions. His decisions may not be reviewed before publication and after publication only by the Appeals Council
34
in certain prescribed circumstances. He is subject only to such
administrative supervision as may be required in the course of general office management." …
The APA creates a comprehensive bulwark to protect ALJ’s
from agency interference. The independence granted to ALJ’s is designed to maintain public confidence in the essential
fairness of the process through which Social Security benefits
are allocated by ensuring impartial decision-making.
On remand the District Court ruled:
A minimum number of dispositions an ALJ must decide in a given period, provided this number is reasonable and not
etched in stone is not a prescription of how, or how quickly, an
ALJ should decide a particular case. 869 F.2d. 680-81 (emphasis added)
The court of appeals affirmed, finding that the goals were not quotas;
that peer review did not interfere with “live” decisions; and the quality
assurance system was cause for concern, but there was nothing to say the
district court’s determination was clearly erroneous. Nash, 869 F2d. 675,
680-1. A similar finding can not be made in Judge Abrams case. McPhail’s
directives are a prescription of how “quickly” an ALJ should decide a
particular case. The orders certainly etch a number of dispositions
Abrams must make within a specific time.
Judge Breakbusch recites Boham’s language that a “management need
exists to impose reasonable requirements which would not affect an ALJ’s
ability to provide full and fair hearings and to render impartial and complete
35
decisions, an ALJ would not be justified in refusing to comply with such
instructions.”41
She fails to cite the decision’s language just prior: “The
decisional independence which Congress conferred upon ALJ’s
precludes agencies from predicating their charges upon reasons which
constitute an improper interference with the performance by an ALJ of
his or her judicial functions.”42
Judge Boham was disciplined for failure
to schedule and hear travel dockets. The ALJ job description includes
travel. Obviously this is general office management. Not traveling is far
different from not advancing cases through adjudication status.
The graven of all the precedent seems to be that an agency is limited
to requiring a reasonable number of decisions; not etched in stone; does not
decide how quickly a case must be adjudicated, and does not interfere with
“live” cases. Benchmarks state how quickly a case must be adjudicated.
Enforcing benchmarks become a forbidden quota and interferes with live
cases. The orders to Judge Abrams do not demonstrate a reasonable
number of cases or adjudications; they do determine how quickly a case
must be adjudicated; case statuses changed; and interfere with “live” cases.
41
SSA v. Boham, 38 MSPR at 540, 543; SSA v. Brennan, 19 MSPR 335,
340. 42
SSA v. Goodman, 19 MSPR 321, 328 (1984)
36
VI. Conclusion and Prayer for Relief.
SSA failed to demonstrate good cause to discipline Judge Abrams,
and Judge Brakebusch’s initial decision as confirmed in the nonprededential
final order issued by MSPB erroneously mistakes exercising qualified
judicial independence for general office management. If confirmed, Judge
Abrams becomes a poster child for agency mismanagement of adjudication.
Qualified judicial independence cannot exist when an agency can direct its
adjudicators when they must determine specific “live” cases, because doing
so illegally hurries the process beyond the discretion the ALJ has to manage
the course of adjudication.
Accordingly the Nonprededential Final Order should be REVERSED.
The complaints against Judge Abrams should be dismissed, and he should be
restored to active status.
Respectfully submitted,
_______________________
Donald J. Willy, Texas Bar 21663500 Region 6 VP, AALJ/IFPTE
On behalf of the AALJ
Amicus Curie Post Box 27554
Houston, Texas 77227-7554
(713)667-1700
(281)265-3242 (facsimile) [email protected]
37
Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements and Type Style Requirements
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B) or Federal Rule of Appellate Procedure 28.1(e). The brief contains 6783 words, excluding the parts of the brief
exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii),
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) or Federal Rule of Appellate Procedure 28.1(e)
and the type style requirements of Federal Rule of Appellate Procedure
32(a)(6). The brief has been prepared in a monospaced typeface using Microsoft Word, Version 10.
___________________________
Donald J. Willy
Attorney for Amicus Curie
Association of Administrative Law Judges
Dated: _________________
Federal Rules of Appellate Procedure, Form 19
38
Certificate of Service:
I certify that on February 7 , 2012, I forwarded copies of the foregoing
Brief of Amicus Curie Association of Administrative Law Judges to the
following parties, via United States mail, postage prepaid, or via electronic
mail to their provided email address:
Elizabeth M. Hosford, Es q.
Commercial Litigation Branch Civil Division
Department of Justice
P.O. Box 480
Ben Franklin Station Washington, DC 20044
and
Peter B. Broida, Esq.
2009 N. 14th St., Suite 705
Arlington, VA 22207
_______________________
Donald J. Willy
