Abrams v. Social Security Administration , 703 F.3d 538 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD L. ABRAMS,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2011-3177
__________________________
Petition for Review of the Merit Systems Protection
Board in Case No. CB752108001-T-1.
___________________________
Decided: December 28, 2012
_________________________
PETER B. BROIDA, of Arlington, Virginia, argued for
petitioner.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Classi-
fication Unit, United States Department of Justice, of
Washington, DC, argued for respondent. With her on the
brief were STUART F. DELERY, Acting Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and BRIAN M.
SIMKIN, Assistant Director. Of counsel was ALLISON
KIDD-MILLER, Trial Counsel.
ABRAMS v. SSA 2
DONALD J. WILLY, Association of Administrative Law
Judges, of Houston, Texas, for amicus curiae Association
of Administrative Law Judges.
__________________________
Before LOURIE, CLEVENGER, and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
Judge Richard L. Abrams appeals from the Merit Sys-
tems Protection Board (“Board”) decision upholding his
removal by the Social Security Administration (“Agency”)
from his position as an Administrative Law Judge
(“ALJ”). Because the legal challenges are meritless and
substantial evidence supports the Board’s findings that
good cause existed to remove Judge Abrams from his
position, we affirm.
BACKGROUND
Prior to his removal Judge Abrams had been an ALJ
with the Agency since 2001 and with the Houston-
Bissonnet Hearing Office of the Agency’s Office of Disabil-
ity Adjudication and Review since 2003. The Hearing
Office Chief ALJ of the Houston-Bissonnet Office was, at
all times relevant to this appeal, Judge Robert McPhail.
The Hearing Office Chief
is responsible for managing, planning, and coordi-
nating the administration of the hearing process
for the office. In addition to handling his or her
own hearing docket, the [Hearing Office Chief] re-
sponds to Congressional and public inquiries, as-
signs cases to ALJs, gives directives to ALJs, and
assumes the overall responsibility for the expedi-
tious handling of case processing in the office.
3 ABRAMS v. SSA
Soc. Sec. Admin. v. Abrams, No. CB-7521-08-0001-T-1, at
3 (M.S.P.B. Mar. 29, 2010) (“Initial Decision”).
In April 2007 the national office sent a memorandum
to the regional offices entitled “Benchmarks for Quality
Case Processing” (“benchmarks”) providing guidelines to
facilitate case processing and service delivery. J.A.125. A
Collective Bargaining Agreement between the Agency and
its ALJs provided that the benchmarks were “guidelines
for management officials,” and would not be “used as a
source of any disciplinary or performance action.” J.A.192.
Later that year a nationwide initiative began to move
cases through the process more quickly, with a particular
focus on completing those cases that were more than 900
days old.
Judge Abrams had frequently come to the attention of
management due to his difficulty in processing cases in a
timely manner. Efforts to address this included entering
into an agreement to exchange his older cases for newer
cases, not assigning new cases or giving him so called
“thin” cases, offering him docket management training,
and offering to have his aged cases reassigned; the latter
two he refused.
In February 2007, Regional Chief ALJ Joan Parks
Saunders sent Judge Abrams a memorandum directing
him to decide cases that had been in post hearing status.1
1 When a case is assigned to an ALJ it is in “ARPR”
status (ALJ Prehearing Review); upon reviewing a case,
the ALJ will typically place it into “RTS” status (ready-to-
schedule for a hearing), unless it requires additional
evidentiary development in which case it is placed in
“PRE” (pre-hearing development) status. An administra-
tive employee will schedule RTS cases for hearing. After
a hearing the ALJ typically will issue decision instruc-
tions and put the case in Unassigned Writing (“UNWR”)
status, unless the ALJ needs more time or more informa-
ABRAMS v. SSA 4
For those he could not decide by March 9, 2007, he was
directed to provide a detailed explanation why and what
specific action he intended to take with a timeline for
taking that action. In a letter dated March 8, 2007, Judge
Abrams provided information concerning each of the 27
cases identified in the memorandum.
On June 14, 2007, Judge McPhail sent Judge Abrams
an email with the subject line: “Direct Order—Decide
Aged Cases or Provide Explanation of Your Intended
Course of Action by June 22, 2007” (the “June 2007 direc-
tive”). J.A.127. Attached was a list of 53 aged cases in
various statuses. For cases in all statuses Judge Abrams
was directed to advance them or provide a detailed reason
why he could not do so. On June 15, 2007, Judge Abrams
told Judge McPhail he would be unable to comply because
of his upcoming hearing schedule. Judge McPhail re-
sponded advising him that despite his hearing schedule
he must still comply. Judge Abrams never responded. On
August 6, Judge McPhail reassigned 11 of the 53 listed
cases that were the subject of the June 2007 directive;
each was more than 1,000 days old. On November 8,
2007, the Agency filed a complaint against Judge Abrams
and sought a 14-day suspension for failure to follow the
June 2007 directive.
On January 22, 2008, Judge McPhail again directed
Judge Abrams to take action regarding 40 cases in vari-
ous statuses or provide detailed explanations why he was
unable to move a case forward (the “January 2008 direc-
tion in which case it is placed in the Post-Hearing status
(“ALPO”). If it needs additional development a case is
placed in Post-Hearing Development (“POST”) status.
When a decision is drafted it is moved to “EDIT” status
for review or editing by the ALJ. After final changes are
made it is in “SIGN” status as it awaits the ALJ’s signa-
ture.
5 ABRAMS v. SSA
tive”). On February 5, 2008, Judge Abrams responded
that he had substantially complied and expected that any
remaining work he was directed to perform would be
completed by February 15, 2008.
Judge McPhail again directed Judge Abrams on May
7, 2008 (the “May 2008 directive”) to take action on 19
pending cases or provide a written explanation explaining
why he could not do so. Judge Abrams responded that he
had completed those cases that were simply awaiting his
signature, made edits to those written decisions that
needed his review, and returned some cases for re-
assignment to other judges. However, upon examination
of the case management system, Judge McPhail found
otherwise. In particular, Judge McPhail found that cases
had simply been shifted to different statuses, rather than
moved toward adjudication, without adequate explana-
tion. Contrary to Judge Abrams’s representation, no
cases were returned for reassignment nor was there any
agreement in place at the time that cases would be re-
turned and reassigned. On July 16, 2008, the Agency
filed a second complaint against Judge Abrams with the
Board, seeking a 30-day suspension for failure to follow
instructions in the January 2008 and May 2008 directives
on the grounds that contrary to Judge Abrams’s re-
sponses, he had not adjudicated the cases or provided
explanation as directed.
Judge McPhail issued another directive to Judge
Abrams on August 19, 2008, directing him to take action
on cases in need of either his signature or edits, without
the option of providing a written explanation if he could
not adjudicate the cases as directed (the “August 2008
directive”). For cases in other statuses he was directed to
move them along in the process or explain why he could
not do so. On September 9, 2008, Judge Abrams emailed
Judge McPhail to inform him that he had completed all of
ABRAMS v. SSA 6
the tasks as directed. Contrary to Judge Abrams’s asser-
tion, the Agency determined that Judge Abrams had not
moved all of his cases or provided a written explanation
as directed and on November 14, 2008, filed a third com-
plaint with the Board for continued failure to follow
instructions.
The three complaints were combined, and a multi-day
hearing was conducted by ALJ Margaret G. Brakebusch.
In her initial decision, she determined that the Agency
had proven the charge of failure to follow instructions as
alleged in the three complaints by a preponderance of the
evidence. Judge Brakebusch recognized the importance of
an ALJ’s qualified judicial independence to be free from
improper interference. She nevertheless found that ALJs
are not immune from supervision and may be disciplined
for failure to comply with reasonable instructions as long
as the instructions do not affect the ALJ’s ‘“ability to
provide full and fair hearings and to render impartial and
complete decisions.”’ Initial Decision at 58 (quoting Soc.
Sec. Admin. v. Boham, 38 M.S.P.R. 540, 543 (1988)). She
further found that Judge Abrams was given the opportu-
nity to provide a written explanation as to what was
needed to move cases toward adjudication but failed to
fully comply with the directives and established no justifi-
cation for this failure. Judge Brakebusch determined that
the Agency showed good cause for disciplinary action.
After reviewing the standards articulated in Douglas v.
Veterans Administration, 5 M.S.P.R. 280 (1981), Judge
Brakebusch concluded the evidence weighed in favor of
removal.
The initial decision was affirmed by the full Board.
Judge Abrams filed a timely appeal. We have jurisdiction
pursuant to 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9).
7 ABRAMS v. SSA
DISCUSSION
The scope of our review in an appeal from the Board is
limited. We must affirm the Board’s decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). Under the substantial
evidence standard, this court reverses the Board’s deci-
sion only “if it is not supported by ‘such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288,
1298 (Fed. Cir. 2002) (quoting Brewer v. United States
Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).
Judge Abrams does not dispute that substantial evi-
dence supports the Board’s conclusion that the Agency
met its burden in proving the charge of failure to follow
directions; in fact, he admitted that he had not fully
complied with the directives. Instead, Judge Abrams
argues that the Board erred in concluding there was “good
cause” for removal. Three arguments were presented to
show that good cause did not exist in this case. First,
Judge Abrams and amicus curiae, the Association of
Administrative Law Judges (“AALJ”), argue that the
Agency’s charge of “failure to follow instructions” was an
improper attempt to enforce the benchmarks, and thus
could not constitute good cause for removal. In the alter-
native, Judge Abrams argues that the Board erred in
finding “good cause” for discipline because performance-
based misconduct actions require objective, articulated
performance standards. Finally, the AALJ contends that
failure to follow the directives could not have provided the
basis for “good cause” removal because the directives
interfered with Judge Abrams “qualified decisional inde-
ABRAMS v. SSA 8
pendence” in addressing “live cases.” We address each
argument in turn.
Under 5 U.S.C. § 7521(a) an administrative law judge
cannot be removed unless “good cause [is] established and
determined by the Merit Systems Protection Board.”
“Good cause” is not defined in this statute, nor was it
defined in the Administrative Procedure Act (“APA”).
Long v. Soc. Sec. Admin, 635 F.3d 526, 533 (Fed. Cir.
2011). ‘“[G]ood cause’ is to be given meaning through
judicial interpretation. . . .” Brennan v. Dep’t of Health &
Human Servs., 787 F.2d 1559, 1561–62 (Fed. Cir. 1986).
The Board’s “interpretation of ‘good cause’ in section 7521
is subject to Chevron deference.” Long, 635 F.3d at 534;
see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984). Under the two-part Chevron test, a
court must first determine if Congress has directly ad-
dressed the issue and if so must give effect to the ex-
pressed intent of Congress. Long, 635 F.3d at 535. If the
statute is silent or ambiguous the court must sustain an
agency’s reasonable construction. Id. Here, Congress
failed to define the meaning of “good cause” in 5 U.S.C.
§ 7521, and therefore, we must evaluate the Board’s
construction. Id.The Board determined that the “good cause standard
must be construed as including all matters which affect
the ability and fitness of the ALJ to perform the duties of
office.” Initial Decision at 45. In support, the Board
reasoned:
The legislative history of the APA indicates that
an ALJ’s fitness and ability to perform the duties
of office means that: “[ALJs] must conduct them-
selves in accord with the requirements of this bill
and with due regard for the rights of all parties as
9 ABRAMS v. SSA
well as the facts, the law, and the need for prompt
and orderly dispatch of public business.”
Id. (quoting H.R. Rep. No. 1980, at 269 (1946)) (emphasis
added) (alteration in Board Opinion). The Board con-
cluded that there was good cause for removal because
Judge Abrams’s failure to fully comply with the directives
“evidence[d] . . . a neglect of his duties as an ALJ to
provide ‘prompt and orderly dispatch of public business.’”
Id. at 59-60. The Board’s interpretation of “good cause” is
a reasonable construction of the statutory language, and
is consistent with the APA. Accordingly, under Chevron,
we defer to the Board’s interpretation of “good cause” in
section 7521(a) and uphold its determination that failure
to follow instructions is sufficient “good cause” for re-
moval.
I. The Charge Is Not Premised On Benchmarks.
Judge Abrams and the AALJ argue that the bench-
marks became de facto performance standards used
against him in violation of the collective bargaining
agreement. The Board determined, as a factual matter,
that the Agency did not rely upon the benchmarks as de
facto performance standards, concluding that:
A review of the specifications at issue reflects that
the Agency’s proposed disciplinary actions were
based upon [Judge Abrams’s] failure to follow the
instructions included in the directives. Addition-
ally there is nothing in the record to support a
finding that the proposed discipline was for
[Judge Abrams’s] failure to follow the benchmarks
rather than his failure to follow the instructions
in the [four] directives.
Id. at 62. Neither Judge Abrams nor the AALJ point to
any evidence to support their assertions that the bench-
ABRAMS v. SSA 10
marks were used as performance standards. Judge
McPhail testified that he targeted aged cases in the
directives, but did not limit Judge Abrams to any of the
time frames for case processing set forth in the bench-
marks. He simply directed that cases not continue to
languish. The Agency charged that Judge Abrams had
failed to follow instructions because he failed to decide
aged cases or explain why he was unable to do so in order
to fully comply with the directives. The charge was not
based upon the benchmarks.
II. The Charge Is Not Performance-Based.
In the alternative, Judge Abrams contends that the
Board erred in finding “good cause” for discipline because
performance-based misconduct actions require objective,
articulated performance standards. Appellant’s Br. at 38–
54 (quoting Soc. Sec. Admin. v. Goodman, 19 M.S.P.R.
321, 331 (1984)). However, as explained in the previous
section and as demonstrated in both the complaint and
the Board’s decision, Judge Abrams was charged with
misconduct based upon a failure to follow instructions,
and not poor performance.2
2 At oral argument, Judge Abrams’s counsel argued
that Goodman required a misconduct charge to be based
upon insubordination. See Oral Argument at 5:40–5:57,
available at http://www.cafc.uscourts.gov/oral-
argument-recordings/all/abrams.html. The argument
fails for several reasons. First, this court is not bound by
Goodman, a decision of the Board. Second, the main
determination in Goodman was that ALJs can be charged
for misconduct under 5 U.S.C. § 7521. Goodman, 19
M.S.P.R. at 324–32. The language in Goodman that
Abrams references is dicta, discussing the distinction
between performance-based and misconduct-based ac-
tions: “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
11 ABRAMS v. SSA
The charge of failure to follow instructions is a charge
of misconduct and is supported by substantial evidence.
For instance, with regard to the June 2007 directive, the
Board found:
Although there is no dispute that [Judge Abrams]
complied with the [June 2007] directive in at least
10 of the 53 cases, I also find that there is no evi-
dence that [Judge Abrams] complied with the di-
rective in any way regarding a number of the aged
cases listed in the directive. More importantly, in
those cases where [Judge Abrams] took no action
to comply with the directive, or where he acted in
contradiction to the directive, he provided no writ-
ten explanation why he could not comply. [Judge
Abrams], in fact, provided no written response at
all to the June 2007 directive. Interestingly, when
he receive[d] a similar directive from [Judge]
Parks Saunders in February 2007, he complied.
Thus, there is no question that he fully under-
stood what was needed for full compliance to [sic]
such a directive.
Initial Decision at 51; see also J.A.10305–07, J.A.10348–
51, J.A.10364–70 (Judge McPhail’s testimony detailing
Judge Abrams’s noncompliance with the January 2008,
poor work resulted from the employee’s failure to follow
instructions, the case would present a misconduct charge
based upon insubordination.” Id. at 330. Last, despite
Judge Brakebusch’s statement that Judge Abrams’s
“failure to fully comply with McPhail’s directives evi-
dence[d] . . . insubordination,” Initial Decision at 59,
Judge Abrams was charged with misconduct for failure to
follow instructions. A charge of misconduct based on a
failure to follow instructions need not be based upon
insubordination.
ABRAMS v. SSA 12
May 2008, and August 2008 directives, respectively).
Accordingly, Judge Abrams’s argument that the Board
could not find good cause for his removal because it did
not use objective performance standards is without basis.
III. The Directives Do Not Interfere With Judicial
Independence.
The AALJ argues that the charge of failure to follow
instructions cannot be sustained because the instructions
interfered with Judge Abrams’s qualified decisional
independence. Decisional independence ensures that “the
hearing examiner exercises his independent judgment on
the evidence before him, free from pressures by the par-
ties or other officials within the agency.” Brennan, 787
F.2d at 1562 n.1 (quoting Butz v. Economou, 438 U.S. 478,
513 (1978)). Furthermore, the APA prohibits substantive
review and supervision of the quasi-judicial functions of
ALJs. Id. at 1562. However, decisional independence does
not prohibit “appropriate administrative supervision that
is required in the course of general office management.”
Id.
The Board has repeatedly acknowledged that ALJs
may be disciplined for failure to follow instructions unre-
lated to their decisional independence. See, e.g., Soc. Sec.
Admin. v. Burris, 39 M.S.P.R. 51, 55 (1988); Soc. Sec.
Admin. v. Manion, 19 M.S.P.R. 298, 314–15 (1984); Soc.
Sec. Admin. v. Brennan, 19 M.S.P.R. 335, 340 (1984).
Here, the Board held that the directives did not interfere
with Judge Abrams’s decisional independence, reasoning
as follows:
The nature of these directives were [sic] not such
to affect [Judge Abrams’s] ability to provide full
and fair hearings or to render impartial and com-
plete decisions. They were directives to process
cases and to provide information about the im-
13 ABRAMS v. SSA
pediments or unique circumstances of the individ-
ual cases that affected the adjudication of the
case. [Judge Abrams] has established no justifica-
tion to refuse to comply with such instructions.
Initial Decision at 59. Reviewing the directives, the
Board determined that Judge McPhail did not direct
Judge Abrams to make any specific decision on a case, but
rather, asked that the cases be moved to the next step in
processing or explain what was needed in order to move
them along. The Board concluded that “there is no evi-
dence that any of the Agency’s directives suggested,
implied, or dictated how [Judge Abrams] was to adjudi-
cate the cases. The directives only instructed [Judge
Abrams] to process assigned cases to the next step if
possible, and to provide information to [Judge McPhail]
on those cases that could not be moved to the next step.”
Id. at 60. Based on the record, the Board found “no
indication that the instructions at issue dictated the
outcome of the cases or otherwise impeded [Judge
Abrams’s] ability to render impartial and complete deci-
sions.” Id. at 61. The substance of the decisions was
within Judge Abrams’s control at all times. Accordingly,
the Board’s determination that the directives did not
impinge upon Judge Abrams’s judicial independence is
supported by substantial evidence.
CONCLUSION
For the foregoing reasons we conclude that the
Board’s determination to remove Judge Abrams from his
position as an ALJ for the Agency is supported by sub-
stantial evidence.
AFFIRMED