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Post by onepingonly on Sept 22, 2015 15:47:02 GMT -5
It's very intelligently written. My hat is off to Judge Devine. The decision says it becomes final on October 21, so perhaps it will be posted on MSPB.gov at that time. It could also be modified or appealed, of course, but it seems very solid. Well if and when the decision is posted by MSPB on their website, it will be interesting to see which column the case gets posted under: Precedential or non-precedential. I agree, that will be interesting.
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Post by keepsake on Sept 22, 2015 16:18:35 GMT -5
This would have most likely been an initial decision issued by an ALJ on loan from OPM to the Board for this type of original jurisdiction case (like a Hatch Act or OSC disciplinary action case). MSPB AJs cannot hear these type of cases and I don't believe MSPB has a corps of ALJs, so they borrow them for these purposes.
Nevertheless, apart from this technical aspect of who actually could hear this type of case, I don't believe it would become Board precedent unless and until it is reviewed by the Board and the Board determines that it is such. Specifically, as an initial decision, if nobody appeals it to Board review by the date indicated, it becomes final agency action, but does not become precedential as a result. See 5 CFR 1201.117(c) (discussing precedential vs. nonprecedential decisions by the Board).
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sta
Full Member
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Post by sta on Sept 22, 2015 18:37:47 GMT -5
If the agency wants to remand cases for perceived HALLEX violations, the MSPB decision does not appear to prevent it. It dealt only with discipline. Courts can do what they wish, of course. Ours is not to wonder why. Two other salient points. MSPB held that the agency could discipline the ALJ for not taking action fast enough on his cases, but suspension was not warranted. And the CALJ testified that the ALJ's come under the protection of the APA (and the decision assumes so too). I have heard that the agency previously took the position that ALJ's at SSA were not protected under the APA. I don't know if the agency really took that position, but if so, it appears to have no currency now. For a good overview of the ALJ job, read the APA, Perez v Mortgage Bankers, the new MSPB decision, and, for fun, Butz v Economou. Then watch M*A*S*H for insight into how big agencies work. I won't be so cynical as to suggest rereading Catch 22 or Kafka. My experience after almost 30 years in government has been very positive, but you have to have an ability to deal with bureaucracy. It ain't the private sector. The CALJ may have testified that the ALJ comes under the protection of the APA, but you have overlooked the Tunik v. MSPB decision 407 F3d 1326 (Fed. Cir. 2005), which shows the MSPB with the approval of the Court of Appeals for the Federal Circuit has removed such things as case processing matters and training requirements, as matters implicating an APA cause of action. The Tunik decision dealt with several significant issues: First, it dealt with the situation that an ALJ’s supervisory chain had allegedly violated the ALJ’s judicial independence, where the CALJ directed the HOCALJ to direct the ALJ to reverse an ALJ’s order to remand a disability claim to a state agency due to asserted deficiencies in the state agency’s consideration of the case. Second, it dealt with the requirement in 5 U.S.C. section 3105 that case assignments to ALJs occur in rotational order, and with the action of a HOCALJ to reassign an ALJ’s case to another ALJ. Before the MSPB, it was argued by the ALJs who had cases reassigned, that such actions amounted to a constructive removal under 5 U.S.C. section 7521. In Tunik’s MSPB decision, the Board interpreted the meaning of section 7521 to mean that where the SSA “takes actions like the ones at issue here, which involve such things as case processing matters and training requirements, . . . We cannot believe that this sort of micromanagement, and the likely slowdown in the agency’s work that it would cause, is what Congress intended when it used the word ‘removal’ in 5 U.S.C. section 7521.” The Court of Appeals in Tunik v. MSPB, “agree[d] with the Board that the plain language of section 7521 reasonably can be read to apply only to cases of actual separation from employment as an ALJ.” The Court of Appeals further rejected the argument that Administrative Procedure Act (APA) “was designed to secure decisional independence of administrative judges.” Specifically, "although the ALJs are correct that the APA was concerned with effecting independence for ALJs, neither the APA itself nor the legislative history behind it indicates that Congress intended to extend 7521 to cover anything less than actual separation from employment as an ALJ.” The Court of Appeals next rejected the ALJs’ argument that in view of 5 U.S.C. section 3105, section 7521 must be construed broadly to include constructive removal. Section 3105 provides that “administrative law judges . . . may not perform duties inconsistent with their duties and responsibilities as administrative law judges.” The Court rejected the argument that interference with decision independence causes ALJs to perform duties in an unfair manner, which therefore is inconsistent with their duties and responsibilities. The court noted that the ALJs did not argue that they are being required to perform duties other than the adjudication of cases. “Instead, they are complaining about the manner of performance of that duty. Section 3105 does not speak to this issue. Even if the ALJs are correct, there is no plausible reason to engraft such a contorted interpretation of section 3105 onto section 7521.” Subsequent to Tunik being decided, the MSPB proposed an amendment to 5 CFR 1201.142, to require an ALJ filing under section 7521 to establish “that his decision to leave the position of ALJ was involuntary under the test for involuntariness used for appeals implicating section 7512.” On June 14, 2006, the final rule was issued, which adopted the rule as proposed, which repealed the standard for a constructive removal under the statute that was formerly incorporated in the Board’s regulations.
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Deleted
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Post by Deleted on Sept 30, 2015 8:56:47 GMT -5
The Butler decision is still not up on Westlaw or the MSPB site. I have a copy, but my attempts to add it as an attachment have been less than successful.
Otherwise, we received this today from a Union rep. It appears to be a summary of case holdings in Butler.
The primary holding within the Initial Decision is the Board’s determination that HALLEX “is an internal guidance document and cannot supersede regulations that have the force of law.” SSA v. Butler, Initial Decision at *19 (September 16, 2015). We recognize that SSA management perpetually warns judges to abide by HALLEX, and at times even disciplines ALJs who depart from its strict confines. This Initial Decision should prove a useful tool in contesting future attempts by SSA management to enforce HALLEX against ALJs as though it has the full effect of law. Moreover, this Initial Decision also disregards any distinction between a directive based upon a HALLEX provision, and the HALLEX provision alone. If the HALLEX provision is not binding upon an ALJ, this Initial Decision suggests a directive based upon HALLEX is equally non-binding. Further, the Initial Decision determined that instances where HALLEX conflicts with existing regulation, any attempt to enforce it against an ALJ intrudes upon decisional independence. The specific situation in ALJ Butler’s case involved the use of interpreters at hearing, but we believe the rationale from this decision extends to other potential areas where agency guidance may conflict with regulation or law. The Initial Decision states very clearly that inhibiting an “ALJ’s decision-making process . . . intrudes on an ALJ’s decisional independence.” SSA v. Butler, Initial Decision at *30 (September 16, 2015). Finally, the decision includes what we consider to be very beneficial descriptions of the protections the Administrative Procedure Act (“APA”) provides to ALJs. The Initial Decision specifically recognizes that the APA “creates a comprehensive bulwark to protect ALJs from agency interference.” SSA v. Butler, Initial Decision at *15 (September 16, 2015). Perhaps the most important component of these protections remains the limitations the APA places upon what can constitute good cause to discipline an ALJ. Misconduct allegations which interfere with an “ALJ’s performance of his quasi-judicial functions . . . cannot constitute ‘good cause.’” SSA v. Butler, Initial Decision at *16 (September 16, 2015).
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Post by carrickfergus on Sept 30, 2015 12:29:22 GMT -5
On a similar note, here's how the atty who defended Judge Butler at the MSPB characterized the decision:
"I am writing because we recently received a favorable decision in a case involving an Social Security Administration ALJ and I thought it might be of interest to you. Enclosed please find the Initial Decision of the Merit Systems Protection Board denying the Social Security Administration’s petition to suspend ALJ Larry Butler for sixty (60) days. We consider this decision as a significant victory for ALJs. Please feel free to share this decision with your colleagues. "There are several components of the decision that warrant review and discussion among ALJs. Accordingly, we have prepared the following discussion of what we consider to be the most significant aspects of the decision, along with our best forecast as to the long-term implications of this decision. "The primary holding within the Initial Decision is the Board’s determination that HALLEX “is an internal guidance document and cannot supersede regulations that have the force of law.” SSA v. Butler, Initial Decision at *19 (September 16, 2015). We recognize that SSA management perpetually warns judges to abide by HALLEX, and at times even disciplines ALJs who depart from its strict confines. This Initial Decision should prove a useful tool in contesting future attempts by SSA management to enforce HALLEX against ALJs as though it has the full effect of law. Moreover, this Initial Decision also disregards any distinction between a directive based upon a HALLEX provision, and the HALLEX provision alone. If the HALLEX provision is not binding upon an ALJ, this Initial Decision suggests a directive based upon HALLEX is equally non-binding. "Further, the Initial Decision determined that instances where HALLEX conflicts with existing regulation, any attempt to enforce it against an ALJ intrudes upon decisional independence. The specific situation in ALJ Butler’s case involved the use of interpreters at hearing, but we believe the rationale from this decision extends to other potential areas where agency guidance may conflict with regulation or law. The Initial Decision states very clearly that inhibiting an “ALJ’s decision-making process . . . intrudes on an ALJ’s decisional independence.” SSA v. Butler, Initial Decision at *30 (September 16, 2015). "Finally, the decision includes what we consider to be very beneficial descriptions of the protections the Administrative Procedure Act (“APA”) provides to ALJs. The Initial Decision specifically recognizes that the APA “creates a comprehensive bulwark to protect ALJs from agency interference.” SSA v. Butler, Initial Decision at *15 (September 16, 2015). Perhaps the most important component of these protections remains the limitations the APA places upon what can constitute good cause to discipline an ALJ. Misconduct allegations which interfere with an “ALJ’s performance of his quasi-judicial functions . . . cannot constitute ‘good cause.’” SSA v. Butler, Initial Decision at *16 (September 16, 2015). "Clearly, the attached opinion is only an initial decision in this matter and is not final. I believe we will be defending this decision for some time. "Please do not hesitate to contact me if you have any questions."
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