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Post by inquisitive on Feb 1, 2010 3:01:51 GMT -5
If you haven't read the decision yet, consider going to the MSPB.gov website and click on the "decisions" link on the left-hand side. Then scroll down to the January 27, 2010 decisions. Then click on SSA v. Danvers E. Long.
SSA OCALJ folks may be rejoicing about the MSPB's decision dated January 27, 2010. SSA managed to get a SSA ODAR ALJ removed by the MSPB for "good cause." The "charge" was conduct unbecoming an ALJ. There were two "specifications" that accompanied the "charge."
The MSPB did not find the AALJ amicus curie brief to be persuasive.
Given the stakes, it is highly likely that Mr. Long will file a petition for review (PFR) with the Federal Circuit Court of Appeals and seek to have the MSPB's decision overturned in whole or in part.
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Post by privateatty on Feb 1, 2010 8:39:40 GMT -5
"The petitioner has proven that the respondent’s actions were conduct unbecoming an ALJ, i.e., conduct which was improper, unsuitable or detracting from one’s character or reputation. Cf. Crouse v. Department of the Treasury, 75 M.S.P.R. 57, 63 (1997), rev’d on other grounds and remanded sub nom. Lachance, supra; Miles v. Department of the Army, 55 M.S.P.R. 633, 637 (1992). Further, the respondent’s physical altercation with his domestic partner, resulting in the involvement of neighbors and the intervention of police officers, clearly violated generally accepted rules of conduct. His conduct was inconsistent with maintaining respect for the administrative adjudicatory process.9 Accordingly, we find that the petitioner has shown good cause for disciplinary action against the respondent."
So I'm at the airport. I have medication but I don't have my prescription. I protest. I get arrested. Do I meet the new "Long standard?"
Conduct unbecoming an ALJ can be a whole lotta things. I also hear the hapless ALJ Long had low production numbers....
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Post by okeydokey on Feb 1, 2010 11:40:46 GMT -5
Of course, the standard of proof is much lower in an ALJ removal case than in a criminal case. The evidence may not have been there for the criminal case, as the victim(s) of the alleged crime refused to testify. That makes a criminal case tough to prosecute, indeed.
It does not, however, preclude a civil case, where the stand of proof is merely the preponderance of the evidence (although ALJ Long did put up a fight and argue that the agency was charging him with a crime and the standard of proof should have been higher).
PF's post does not make sense in this regard. ALJ Long's guilt or innocence (as defined by criminal law) is simply irrelevant.
I do not find the decision troubling at all, so long as you accept there was a lower burden of proof.
As for appeal... The man had 35 years in government service and was likely eligible for retirement. I suspect he will retire and then appeal, as he has nothing to lose except for attorney fees.
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Post by decadealj on Feb 1, 2010 15:25:39 GMT -5
What surprised me the most (and I an sure AALJ) in the decison, was that nexis was irrelevant. I think that is what the subject of any appeal will be. I must confess the nexis issue analysis surprised me in that MSPB found nexis irrelevant but used the neighbor and police reaction to support the result. Bottom line- the guy did 200 cases a year the last 3 years and there was a basis to get rid of him. Okeydokey indicated he can still retire before appealing. How so?
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Post by okeydokey on Feb 1, 2010 15:44:26 GMT -5
Some train of thought stuff:
Come on PF. This guy should not be a federal employee. I would submit that action like this might even lead to impeachment of an Article III judge.
IMHO, the MSPB would have found that removal was for the efficiency of the service, even for the run-of-the-mill federal employee.
ALJ's certainly are not Article III judges. They are more like Article I or II judges. but they are judges nevertheless. The judicial code of conduct should apply to them.
There has to be some standard. The model rules certainly set it. ALJ's are on notice, so they should conform.
By the way, I cannot really see the problem. If we agree that ALJ Long's conduct violated the model rules, I think that should be the end of the story.
I would think that a much lesser violation of the model rules would not result in removal.
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Post by maxlaw on Feb 1, 2010 16:03:46 GMT -5
It may be because I lack perspective and/or experience, but I can't find it in me to get that worked up over this decision. I am aware of judges at the state level and in the military (one of each) who retired/stepped down under a cloud over this precise issue. And PF, while I often agree with you, why is looking to the Judicial Cannon of Ethics "applying Article III standards"? I don't see any necessary relationship between the minimum ethical standard expected of a judge and the amount of authority that the judge wields. . . you could make all meet the same baseline level of conduct, which I don't think happened here...
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Post by privateatty on Feb 1, 2010 18:33:18 GMT -5
I'll betcha those that don't have a problem with the Decision are:
a) Not an ALJ.
OR
b) Secure in their production numbers.
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Post by okeydokey on Feb 1, 2010 19:01:49 GMT -5
I'll betcha those that don't have a problem with the Decision are: a) Not an ALJ. OR b) Secure in their production numbers. OR c) those who do not beat their spouses.
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Post by lawmaker on Feb 1, 2010 20:25:19 GMT -5
This is a very troubling opinion, and not because I condone domestic violence, but because the ALJ was not convicted, which suggests a guilt before trial mentality is sufficient to remove. Well worht reading, and I suspect the appeal will draw much attention from the ALJ community. Real live case of bad facts make bad law. In my limited experience there is a precedent for removal before conviction, at least in the venue where I used to do this stuff, (which is not mspb) because standard of proof is different for one, and the criminal charge and the conduct unbecoming include 2 completely different elements.
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Post by privateatty on Feb 1, 2010 20:28:35 GMT -5
I'll betcha those that don't have a problem with the Decision are: a) Not an ALJ. OR b) Secure in their production numbers. OR c) those who do not beat their spouses. Please.
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Post by lawmaker on Feb 1, 2010 20:44:07 GMT -5
Some train of thought stuff: Come on PF. This guy should not be a federal employee. I would submit that action like this might even lead to impeachment of an Article III judge. . I'm not defending this idiot. I'm a process freak, and I don't want SSA using the "good cause" standard to rid the agency of what it deems "unproductive" ALJs. I am NOT suggesting that was the motive here, I am suggesting that it very well might have been, and that's a real problem. I don't know anything about removing an ALJ for "efficiency of the service" standard. We are NOT the same as every federal employee, which is why we have a different removal standard. I don't have a problem applying the Judicial Code of Conduct to ALJs when OPM issues the regulations adopting it, and giving us in return the SES benefits we deserve. I do have a problem with OPM telling me that I need to maintain my active attorney status, making me subject to my state's attorney code of conduct, even when it conflicts with my duties as an ALJ, then MSPB telling me that I am subject to the Judicial Code, even though I cannot be placed on Judicial status in my state bar. My point is, can we try to be consistent here? I do think one code of conduct is enough, isn't it? And what's an Article II judge? I don't disagree, but shouldn't I also be placed on Judicial status on my home bar? Am I an attorney subject to the attorney's code, or am I judge subject to the judicial code? Do you see how the two don't gel? Only if the rules were not changed by MSPB on the good cause standard. Even dirtballs have rights. The Judicial Code does not apply to ALJs unless and until OPM adopts it. However, MSPB usues it to decided what constitutes "good cause." I would think that a much lesser violation of the model rules would not result in removal. Again, its not about violating the rules, its about good cause. The two are not necessarily equal. I agree that a model code violation is not ipso facto "good cause." But MSPB might be heading in that direction. Again, we either are subject to the model rules, and thus OPM should not require us to maintain our "active" status as attorneys thus making us subject not to our state judicial code but to our state attorney code, or we are not subject to the model code, and MSPB should stop using it as a sword against us, and look to the state attorney code for guidance. I would prefer the former, but this stupid hybrid doesn't work. When you say "I don't know anything about removing an ALJ for efficiency of the service&standard. We are NOT the same as every federal employee, which is why we have a different removal standard. " While I am sure you did not intend this, it almost sounds as if you believe the ALJ corp should be treated more leniently. I suspect you are trying to run that argument because there are no performance/production standards and therefore there "should" be a different standard. I don't think there is. But if the employee/alj in question feels production issues are the real motivation, then they're at liberty to raise retaliation. It's a pretty good bet this guy and his lawyers would have run that as a defense if it were in fact something available to them as a logical defense. Most employment lawyers are well versed in ulterior motive and retaliation. I'd give the dismissed ALJ's lawyers the benefit of the doubt on that one. You also said "I don't disagree, but shouldn't I also be placed on Judicial status on my home bar? Am I an attorney subject to the attorney's code, or am I judge subject to the judicial code? " I would say probably yes, but it isn't the employers' or MSPB's job to run that one. Although if I was an abused SO or kid, I would file! Aren't the aggrieved the ones to move on that one, and wouldn't the bar make the call as to which code it follows for the subject employee?
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Post by carjack on Feb 2, 2010 14:55:28 GMT -5
Did you notice the other SSA opinion at the MSPB list of cases? Weed v. SSA, 2010 MSPB 23. A 10 point veteran was not hired by SSA and SSA was accused of prohibited personnel practices and violating the veterans' preference rights.
I've heard SSA accused of that somewhere else.
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Post by wilddog on Feb 3, 2010 20:07:49 GMT -5
This is a very troubling opinion, and not because I condone domestic violence, but because the ALJ was not convicted, which suggests a guilt before trial mentality is sufficient to remove. Well worht reading, and I suspect the appeal will draw much attention from the ALJ community. Real live case of bad facts make bad law. ------------ Agreed on all counts.
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Post by maxlaw on Mar 19, 2011 5:46:53 GMT -5
Federal Circuit upheld the removal, here's the link. Lengthy discussion of the points raised in the AALJ's amicus brief.
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Post by factfinder on Mar 19, 2011 13:40:07 GMT -5
Maybe it makes me odd man out, but I do not have much sympathy for Danvers Long. I would have fired him too. I understand the issue as far as good cause, etc. and have concerns.
That being said, I have great respect for the CAFC - usually and even more respect for Judges Prost and Dyk - who wrote a very interesting concurring opinion that really is warning shot at the MSPB. Nevertheless, IMHO, the CAFC is not a pro employee forum, far from it. They nearly eviscerated the the whistleblower laws over the last decade until the very recent Park Police Chief, which demanded action. Could they have realized they had gone too far, who knows? Let's not find out with an ALJ.
In the mean time, the Long matter was an outlier. I do not believe too many ALJs get involved in domestic violence cases. In addition, you can fire folks for things that are not criminal - different standard of proof, etc. Still, all of us really must meet the standard set for Cesar's Wife. Let's not make it easy. Let's not drink and drive and try and claim we are federal judges or do other silly things. And heaven forfend, maybe our union ought to think twice about assisting the Danvers Longs of this world.
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Post by decadealj on Mar 19, 2011 15:27:23 GMT -5
Well it took the "union" issue to draw a comment from an old ALJ out to pasture. I would expect nothing less from your union- it ceased being my organization when it became a union. Heaven forbit it should venture into federal court (via a willing party in interest) to challenge management's usurpation of the hearing process. I always considered myself goverened by the Judicial Cannons of Ethics and I sure as heck didn't need OPM to tell me that they had adopted them. OPM long ago abandoned its APA oversight responsibility for the ALJ corps by caving in to SSA on ALJ qualifications and doing nothing to challenge SSA management initiatives that gutted due process guaranteed by the APA.
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Post by deltajudge on Mar 19, 2011 22:13:01 GMT -5
8-)I have no sympathy for anyone that would lay hands on a woman. Apparently this guy was guilty. However, rather than taking his lively hood away from him, put him into mandatory counseling.
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Post by odarite on Mar 20, 2011 13:00:10 GMT -5
I don't know the individual involved, nor do I know anyone who does, but I would be very surprised if the charged offense was the only blot on his copybook. Given the amount of trouble it takes to get a case through the MSPB, I imagine there was way more to this story than ever met the eye in print. As a result, I doubt that counseling would have been a viable option.
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Post by 71stretch on Mar 20, 2011 16:16:58 GMT -5
I don't know the individual involved, nor do I know anyone who does, but I would be very surprised if the charged offense was the only blot on his copybook. Given the amount of trouble it takes to get a case through the MSPB, I imagine there was way more to this story than ever met the eye in print. As a result, I doubt that counseling would have been a viable option. I think the suggestion was counseling re: the domestic violence issues. Actually, they both could have used some of that, since they were back together by the time the matter went to hearing. I'm skeptical of how much good it would have done. I suspect there was more going on than this one incident, too.
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Post by decadealj on Mar 20, 2011 18:05:20 GMT -5
Lesson learned- if you are a low producer, don't give management a pretext or reason to fire you. I'll bet that ALJ who does 1,000 cases a month might have fared better.
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