shaw bransford & roth case law update

Federal Circuit Holds Administrative Law Judges May be Removed Based on Productivity Statistics

Mark Shapiro began working for the Social Security Administration (“SSA”) as an administrative law judge (“ALJ”) in the New York Hearing Office in 1997.  Beginning in 1998, the SSA informed Mr. Shapiro that his performance was lacking. 

Over the course of several years, Mr. Shapiro’s poor performance continued and he accrued “a tremendous backlog” of undecided cases on his docket.  The SSA began to take an active role in assisting Mr. Shapiro, including reviewing cases, drafting decisions, and returning them for signature.  However his performance still did not improve. 

In 2006-2007, Mr. Shapiro received numerous counselings, but his performance still did not improve.  This included a written chronicle of his poor performance, which informed Mr. Shapiro that 72.8% of all cases in the New York office which had not been decided within 1,000 days were assigned to him. 

Mr. Shapiro’s productivity did not significantly improve.  In Fiscal Years 2008, 2009, and 2010, Mr. Shapiro disposed of drastically fewer cases when compared to his peers in the New York Hearing Office and across the entire Region.  Indeed, in 2010, he decided just 111 cases, while the average ALJ in the New York office decided 630, and the average ALJ within the region decided 622 cases.

After repeated efforts to assist, mentor, and train Mr. Shapiro failed, SSA proposed to remove him from federal service pursuant to 5 U.S.C. § 7521 – the statutory standard for personnel action against administrative law judges - based on two charges:  (1) “unacceptable performance” and (2) “neglect of duty.”  The unacceptable performance charge was divided into three specifications:  (1) failure to provide timely hearings; (2) failure to provide timely dispositions; and (3) failure to acceptably manage cases. 

At a hearing before an ALJ of the Merit Systems Protection Board (“MSPB”), relying on MSPB precedent, determined that SSA failed to prove Charge 1, Specifications 1 and 2 because SSA had not established “an enforceable timeliness standard . . . attributable solely to a judge.” In other words, the SSA failed to prove Mr. Shapiro “was solely responsible for the processing times referenced in the cases cited in the . . . complaint.”  Charge 2 was found to contain allegations similar to those in Charge 1.  However, Charge 1, Specification 3 was sustained and found to be “good cause” to remove an ALJ.  Mr. Shapiro appealed to the full Board, which affirmed the removal decision. 

Mr. Shapiro further appealed to the United States Court of Appeals for the Federal Circuit.  Before the Federal Circuit, Mr. Shapiro argued that SSA had failed to prove the precise charge selected.  However, the Federal Circuit explained that this failure was irrelevant in the removal of an ALJ.  Most personnel actions taken against civil servants require a notice to “state the specific reason(s) for the proposed actions.” 5 C.F.R. § 752.404(b)(1).  Furthermore, in adjudicating personnel actions against most civil servants an agency may “consider only the reasons specified in the notice of the proposed action . . . ,” id. at § 752.404(g)(1).  However, a different standard was created for ALJs.  Specifically, in pursuing a personnel action against an ALJ, an Agency need only “describe with particularity the facts that support the proposed agency action,” 5 C.F.R. § 1201.138, and the Board may only discipline an ALJ for “good cause,” id. at § 1201.140(b).  Thus, it was irrelevant whether SSA had proven the precise charge labeled.

Mr. Shapiro also argued that MSPB precedent in Security Administration v. Goodman, 19 M.S.P.R. 321, 331 (1984), precluded “good cause” determinations based upon a comparison of statistics to regional averages which did not account for variables, such as the fact that different types of cases require different amounts of time to process, and that even among cases of a single type, individual cases vary greatly in complexity. 

The Federal Circuit responded by noting that it was not bound to follow the Goodman decision or other MSPB precedent, although it agreed with Goodman’s assumption that there could be a valid explanation as to why statistics proffered by an agency do not actually illustrate a valid comparison.  However, the Federal Circuit explained, “[w]hen an agency establishes that an individual ALJ’s case disposition rate is so significantly lower than the rate of similarly situated ALJs in his own region, that evidence, absent some contradictory showing that the statistics do not present a valid comparison, can support a finding of good cause.”  Moreover, the “region chief” testified that Mr. Shapiro’s cases were of comparable type and complexity to those handled by other ALJs in the region. 

Mr. Shapiro’s also argued that SSA failed to consider what role support staff may have caused in delaying his case processing.  The Federal Circuit found this suggestion unconvincing in the absence of evidence that support staff were responsible for his under production. 

Read the full case: Shapiro v. Social Security Administration


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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