UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY DOCKET NUMBER
ADMINISTRATION, CB-7521-14-0014-T-1
Petitioner,
v.
DATE: August 25, 2016
LARRY J. BUTLER,
Respondent.
THIS ORDER IS NONPRECEDENTIAL 1
Jessica V. Johnson, Esquire, and Megan E. Gideon, Esquire, Atlanta,
Georgia, for the petitioner.
Meeka S. Drayton, Esquire, Seattle, Washington, for the petitioner.
Danielle Gifford, Esquire, Peter H. Noone, Esquire, and Robert J. Fedder,
Esquire, Belmont, Massachusetts, for the respondent.
Thomas W. Snook, Esquire, Miami, Florida, for amicus curiae, Association
of Administrative Law Judges.
Eugene F. Chay, Esquire, Washington, D.C., for amicus curiae, Asian
Americans Advancing Justice / Asian American Justice Center.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND ORDER
¶1 The Social Security Administration (SSA) has filed a petition for review,
and the respondent administrative law judge (ALJ) has filed a cross petition for
review of the initial decision, which found good cause under 5 U.S.C. § 7521 to
issue a warning, counseling, or reprimand. For the reasons discussed below, we
GRANT the petition for review and the cross petition for review. We FIND that
SSA proved the failure to follow instructions and failure to follow agency policy
charges and specifications. We FURTHER FIND that the respondent proved by
preponderant evidence that his disclosures were a contributing factor in SSA’s
decision to file a complaint under 5 U.S.C. § 7521, and we REMAND this claim
to the ALJ for further adjudication in accordance with this Order.
BACKGROUND
¶2 The relevant facts are largely undisputed. The respondent is employed by
the SSA as an ALJ in Fort Myers, Florida. Initial Appeal File (IAF), Tab 65 at 8;
Hearing Transcript (HT) at 401. SSA has a policy for providing services to
persons with limited English proficiency. As set forth in SSA’s Hearings,
Appeals, and Litigation Manual (HALLEX) I-2-6-10, this policy directs all SSA
ALJs to grant interpreters to any SSA claimant making such a request. IAF,
Tab 72 at 5-6. The respondent was aware of this policy at all relevant times.
E.g., IAF, Tab 65 at 8; HT at 415.
¶3 SSA filed a complaint under 5 U.S.C. § 7521, which proposed to suspend
the respondent for 60 days based on charges of failure to follow instructions,
failure to follow SSA policy, and conduct unbecoming an ALJ. IAF, Tab 1. The
respondent filed an answer, in which he asserted 24 affirmative defenses,
including a claim of reprisal for whistleblowing activity. IAF, Tab 15.
¶4 A hearing was held. The adjudicating ALJ issued an initial decision in
which he sustained specification 2 and a portion of specification 3 of the failure
to follow instructions charge, but he did not sustain any of the other
3
specifications or charges. IAF, Tab 109, Initial Decision (ID) at 17-42. The ALJ
also determined that the respondent did not prove any of his affirmative defenses.
ID at 42-53. The ALJ concluded that SSA did not prove good cause to suspend
the respondent for 60 days, but it was not precluded from issuing a warning,
counseling, or reprimand. ID at 66‑67.
¶5 SSA has filed a petition for review, the respondent has filed a cross petition
for review, and the parties have filed responses and reply briefs. Petition for
Review (PFR) File, Tabs 3, 13, 16-17, 23. The Association of Administrative
Law Judges and the Asian Americans Advancing Justice / Asian American Justice
Center have filed amicus briefs, and SSA and the respondent have responded to
these briefs. PFR File, Tabs 22, 24-25, 28‑29.
ANALYSIS
Standard of Review
¶6 The Board has jurisdiction to adjudicate actions against ALJs. An agency
may take an action against an ALJ only for “good cause” as determined after a
hearing by the Board. 5 U.S.C. § 7521(a). SSA must prove good cause by
preponderant evidence. Social Security Administration v. Long, 113 M.S.P.R.
190, ¶ 12 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Congress has not defined
the term “good cause” for purposes of section 7521. The Board has adopted a
flexible approach in which good cause is defined according to the individual
circumstances of each case. Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 5
(2013), aff’d sub nom. Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir.
2014). However, the baseline for evaluating good cause in any action against an
ALJ is whether the action improperly interferes with the ALJ’s ability to function
as an independent and impartial decision maker. Id. (citing Brennan v.
Department of Health and Human Services, 787 F.2d 1559, 1563 (Fed. Cir.
1986); Social Security Administration v. Mills, 73 M.S.P.R. 463, 468 (1996),
aff’d, 124 F.3d 228 (Fed. Cir. 1997) (Table)).
4
SSA proved by preponderant evidence the failure to follow instructions and
failure to follow agency policy charges and specifications.
¶7 In the failure to follow instructions charge, SSA made the following
assertions: (1) the respondent failed to comply with Hearing Office Chief ALJ
(HOCALJ) Rossana D’Alessio’s October 31, 2013 directive to rescind his
previous denials of claimant A.’s interpreter requests; (2) he failed to comply
with her November 13, 2013 directive to complete his review of seven cases in
Pre-Hearing Review status by the close of business on November 22, 2013; and
(3) he failed to comply with her February 7, 2014 directive to rescind his previous
denials of the interpreter requests in the matters involving claimants B., C., and
D. IAF, Tab 1 at 10; see IAF, Tab 87 at 17-18, Tab 88 at 16-17, Tab 91 at 24-25.
SSA asserted that the respondent failed to comply with agency policy when he
did not provide an interpreter in claimant E.’s case, despite claimant E.’s repeated
requests for an interpreter. IAF, Tab 10 at 1. SSA also alleged that the
respondent engaged in conduct unbecoming an ALJ when he sent or directed staff
to send copies of his objections concerning management’s reassigning three cases
to the claimants and their representatives in those matters. Id.
¶8 In the initial decision, the ALJ who adjudicated this case only sustained
specification 2 and the portion of specification 3 relating to claimant C. in the
failure to follow instructions charge. ID at 31-39. The ALJ did not sustain the
conduct unbecoming charge. ID at 39-42. The parties do not challenge these
conclusions. PFR File, Tab 3 at 4 n.1, Tab 13. We find that these conclusions
are supported by the evidence, and we do not disturb them on review. E.g., IAF,
Tab 88 at 16-17, Tab 91 at 24-25, Tab 93 at 15-19; HT at 432, 447‑50.
¶9 The remaining specifications of the failure to follow instructions and failure
to follow agency policy charges involve the respondent’s failure to provide an
interpreter to various claimants in accordance with HALLEX I-2-6-10 and various
SSA directives. In the initial decision, the adjudicating ALJ noted that
HALLEX I-2-6-10 was not subject to notice and comment rulemaking and
5
was not published in the Federal Register. ID at 19-22. He found that, by
mandating an interpreter’s presence at a hearing, HALLEX I-2-6-10 conflicts
with published SSA regulations, which state that a hearing is only open to the
parties and those persons that the ALJ deems “necessary and proper.” ID
at 23-25. He also found that HALLEX I-2-6-10, as applied by SSA, invaded the
respondent’s judicial function and decisional independence. ID at 25-31. The
ALJ thus concluded that any allegations of misconduct based on the respondent’s
failure to comply with directives regarding interpreter requests or his failure to
comply with HALLEX I‑2-6-10 did not constitute good cause to impose a
sanction. ID at 31.
¶10 We have considered the ALJ’s analysis of the legal force and effect of
HALLEX I-2-6-10, but we are not persuaded that he applied the proper
framework for evaluating these charges. The cases cited by the ALJ, to support
his conclusion that HALLEX is a guidance document without the force of law,
arise in the context of claimant appeals against SSA. ID at 22 (citing Lockwood
v. Commissioner Social Security Administration, 616 F.3d 1068 (9th Cir. 2010);
Bordes v. Commissioner of Social Security, 235 F. App’x 853 (3d Cir. 2007)). By
contrast, here, SSA is seeking to discipline its own employee for failing to
comply with its directives and policy. IAF, Tab 1; PFR File, Tab 3 at 16-18.
Under these circumstances, it is appropriate to rely on decisions of the U.S. Court
of Appeals for the Federal Circuit and the Board involving similar allegations of
ALJ misconduct. See, e.g., Abrams v. Social Security Administration, 703 F.3d
538, 543 (Fed. Cir. 2012) (affirming the Board’s determination that failure to
follow instructions is sufficient “good cause” for removal); Social Security
Administration v. Anyel, 58 M.S.P.R. 261, 269 n.13 (1993) (finding that ALJs are
required to follow agency policies).
¶11 We recognize that the respondent, as an ALJ, has decisional independence,
which ensures that he “exercises his independent judgment on the evidence before
6
him, free from pressures by the parties or other officials within the agency.”
Brennan, 787 F.2d at 1562 n.1 (quoting Butz v. Economou, 438 U.S. 478, 513
(1978)). Decisional independence, however, does not prohibit “appropriate
administrative supervision that is required in the court of general office
management.” Brennan, 787 F.2d at 1562. Indeed, the Board and the Federal
Circuit have held that ALJs may be disciplined for failing to follow instructions
unrelated to their decisional independence. See, e.g., Abrams, 703 F.3d
at 544-46; Social Security Administration v. Burris, 39 M.S.P.R. 51, 55‑57
(1988); Social Security Administration v. Manion, 19 M.S.P.R. 298,
314-15 (1984).
¶12 We find that SSA’s directives and the policy articulated in HALLEX I‑2‑6‑
10 are similarly unrelated to the respondent’s decisional independence. 2 We have
considered the respondent’s assertion that, by requiring him to provide an
interpreter to a claimant upon request, HALLEX I-2-6-10 interfered with his
ability to determine if a claimant could communicate in English. PFR File,
Tab 13 at 13-21; HT at 420-22. 3 This argument is not supported by the record.
2
We also disagree with the ALJ’s conclusion that HALLEX I-2-6-10 conflicts with
certain published SSA regulations, such as 20 C.F.R. § 404.944, which permits an ALJ
to determine who is necessary and proper at a hearing. Indeed, we do not understand
how an interpreter could be considered anything but necessary and proper for a claimant
with possible limited English proficiency in an SSA hearing. See, e.g., Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (holding that traditional notions of due process
and fairness would suggest that, without an interpreter, a claimant unable to
communicate in English would hardly receive a “full hearing . . . in accordance with the
beneficent purposes of the [Social Security] Act”) (internal citations omitted).
3
This determination is important because it is one component of step five of the
agency’s five-step sequential evaluation process for determining if an adult claimant is
disabled. HT at 59-61, 420-22. At step five, ALJs use medical-vocational guidelines to
assess whether a claimant is disabled based on the maximum exertional level at which a
claimant can work and the vocational factors of age and education, which includes the
ability to communicate in English. HT at 58-61; PFR File, Tab 3 at 7 n.3; see 20 C.F.R.
§§ 404.1564(b)(5), 416.964(b)(5). It appears that the ability to communicate in English
can affect the outcome in only two situations; however, in these two situations, a
7
In contrast to the respondent’s assertions, the testimony of three other ALJs
demonstrates that providing an interpreter for an SSA claimant during a hearing
did not require them to find that a claimant has an “inability to communicate in
English,” nor did it prevent them from reviewing the record as a whole to
determine whether the claimant could communicate in English. See, e.g., HT
at 113 (“[T]he fact of an interpreter doesn’t decide any of the determinations that
you need to make under the sequential evaluation process.”), 261 (“If the
interpreter is sitting there, all they’re doing is translating. It doesn’t affect
anything in my hearing.”), 826-27 (“[I]f someone says, I can’t speak English,
you’re to provide the interpreter. But the judge still has in his discretion
throughout the totality of the case to make a determination based on whatever
evidence might be in the record as to whether [or] not that person could
speak English.”).
¶13 Having found no interference with the respondent’s decisional
independence, we now turn to the specifications and charges at issue. Regarding
specification 1 of the failure to follow instructions charge, the respondent
does not dispute that he knew about the directive, that both of claimant A.’s
attorneys requested an interpreter, and that he denied these requests. HT
at 423-25, 541-43; IAF, Tab 65 at 8, Tab 84 at 11-14, Tab 85 at 4-7. He also
admitted that he did not rescind in writing his denial of claimant A.’s request for
an interpreter by the deadline imposed in the directive. HT at 424-25.
Accordingly, we find that SSA proved specification 1 by preponderant evidence.
¶14 Regarding specification 3, the respondent admitted that he was aware of
HOCALJ D’Alessio’s February 7, 2014 directive. HT at 445. He testified that he
did not hold hearings in the matters involving claimants B. and A. because they
were “removed” from him. Id. Even if we assume for the purposes of our
determination that a claimant cannot communicate in English could mean a 5-year
difference in the award of benefits. E.g., HT at 63-65, 71, 420, 423, 722.
8
analysis that the respondent would have held hearings with interpreters but for the
reassignment of these cases, we would still conclude that he failed to comply with
the directive because he did not rescind the denial of the interpreter requests by
the deadline stated therein. HT at 309. Here, too, we conclude that SSA proved
specification 3 by preponderant evidence.
¶15 Because the ALJ already determined that SSA proved specification 2 and
the portion of specification 3 relating to claimant C., we also sustain the failure to
follow instructions charge. See Burroughs v. Department of the Army, 918 F.2d
170, 172 (Fed. Cir. 1990) (holding that when more than one event or factual
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge).
¶16 Regarding the single specification of the failure to follow agency policy
charge, the respondent admitted that claimant E. requested an interpreter prior to
the hearing and “asked . . . four more times [for] supplemental hearings with an
interpreter,” and he denied these requests. HT at 450-51; IAF, Tab 88 at 18,
Tabs 89-90, Tab 91 at 6-23. We therefore conclude that SSA proved this
specification and charge by preponderant evidence.
We remand the respondent’s claim of reprisal for whistleblowing activity for
further adjudication.
¶17 The ALJ determined that the respondent made the following protected
disclosures: (1) disclosures to Congress and agency management, starting in
March 2012 and continuing throughout that year, regarding claimants’
representatives concealing information and evidence, including claimants’ ability
to communicate in English; (2) complaints about various abuses and violations,
including unnecessary costs to agency programs, decisions issued without a
complete record, and failing to ensure that the evidence was reliable or valid; and
(3) reports to the Office of the Inspector General that SSA’s inaction in response
to his complaints constituted gross mismanagement and abuse of authority. ID
9
at 45-46. The parties do not challenge the ALJ’s findings, and we do not disturb
his conclusion in this regard. E.g., IAF, Tab 62.
¶18 The ALJ found, however, that the disclosures were not contributing factors
in SSA’s decision to file a complaint under 5 U.S.C. § 7521. ID at 46-49. The
ALJ alternatively found that, even if the disclosures were contributing factors in
SSA’s decision to take a personnel action against him, SSA proved by clear and
convincing evidence that it would have taken the same action in the absence of
the protected disclosures. ID at 49-50. The respondent challenges both of these
conclusions. PFR File, Tab 13 at 24-27. For the following reasons, we grant the
respondent’s cross petition for review and vacate these portions of the
initial decision.
¶19 To prove that a disclosure was a contributing factor in a personnel action,
the respondent only need demonstrate that the fact of, or the content of, the
protected disclosure was one of the factors that tended to affect the personnel
action in any way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676,
¶ 10 (2003). The knowledge/timing test allows an employee to demonstrate that
the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure, and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id., ¶ 11; see 5 U.S.C.
§ 1221(e)(1). Once the knowledge/timing test has been met, an administrative
judge (or here, an ALJ) must find that the respondent has shown that his
whistleblowing was a contributing factor in the personnel action at issue, even if,
after a complete analysis of all of the evidence, a reasonable factfinder could not
conclude that his whistleblowing was a contributing factor in the personnel
action. Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 21 (2010).
¶20 The ALJ mentioned the knowledge/timing test in the initial decision. ID
at 44. However, he did not appear to analyze this test consistent with the above
10
precedent. ID at 48 (finding that “agency management's actions were based on
SSA's efforts to enforce its interpreter policy”). This was error. Mastrullo v.
Department of Labor, 123 M.S.P.R. 110, ¶ 19 (2015).
¶21 Associate Chief ALJ (ACALJ) Kathleen Scully‑Hayes, who signed the
complaint, testified that she did not know about any of the respondent’s
disclosures. HT at 208-12. She further testified that she received a draft
complaint from the Division of Quality Services (DQS) in the Office of General
Counsel, and she discussed with DQS various aspects of the complaint and
proposed discipline. HT at 205-07, 241. The U.S. Supreme Court has adopted
the term “cat’s paw” to describe a theory explaining instances in which a
particular management official, acting because of improper animus, influences an
agency official who is unaware of the improper animus when implementing a
personnel action. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 11
(2012) (citing Staub v. Proctor Hospital, 562 U.S. 411 (2011)). We find that the
cat’s paw theory is applicable in this matter.
¶22 The record reflects that SSA management “always” has to involve DQS in
matters pertaining to ALJs. HT at 817. In fact, DQS was involved in “talking
points” for a June 2013 directive and a November 2013 reprimand, both of which
were issued to the respondent prior to the complaint. HT at 736, 833; see IAF,
Tab 85 at 10, Tab 93 at 20-22. Additionally, the complaint identified, among
other things, the following relevant agency correspondence: (1) Chief ALJ
(CALJ) Debra Bice’s January 2013 memorandum, which reminded all ALJs that
they are subordinate to the agency on matters of law and policy and that they
must follow agency policies, including HALLEX; (2) Acting Assistant Regional
Chief ALJ (AARCALJ) Michael Davenport’s June 2013 directive that ordered the
respondent to rehear three different matters with an interpreter; (3) Regional ALJ
(RALJ) Ollie Garmon’s November 2013 reprimand to the respondent based on his
failure to comply with earlier directives regarding the use of interpreters; and
11
(4) HOCALJ D’Alessio’s October 31, 2013, November 13, 2013, and February 7,
2014 directives. IAF, Tab 1 at 5-9.
¶23 Moreover, CALJ Bice, RALJ Garmon, and HOCALJ D’Alessio each had
some knowledge of the respondent’s disclosures. See, e.g., HT at 90-92, 164-67,
288-89, 829-30; see generally IAF, Tab 62. We find it more likely than not that
these SSA officials with knowledge of the respondent’s protected disclosures
would have shared this information with others in DQS. Under these
circumstances, we find that the respondent has proven by preponderant evidence
that knowledge of his disclosures is imputed to ACALJ Scully-Hayes under the
cat’s paw theory. Thus, the knowledge component of the knowledge/timing test
is satisfied. See, e.g., Cahill v. Merit Systems Protection Board, 821 F.3d 1370,
1374 (Fed. Cir. 2016) (“[W]hen read with an eye on likely inferences appropriate
to the context, Mr. Cahill's allegations are sufficiently specific and plausible to
constitute nonfrivolous assertions that at least one, and perhaps three, of the
officials charged with the personnel actions at issue attended the March 2012
meeting or at least knew what Mr. Cahill disclosed there.”); Jessup v. Department
of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007) (finding that the appellant
nonfrivolously alleged that his disclosure was a contributing factor in the
agency’s decision to remove him based on his claim that the agency decision
makers either knew of the disclosure via the Chief of Staff or were influenced by
the Chief of Staff who knew of the disclosure). 4
¶24 As discussed above, the respondent made his disclosures during the
2012-2013 time frame, the relevant agency activity described in the complaint,
including the issuance of the memorandum, reprimand, and various directives,
occurred in the 2013-2014 time frame, and SSA filed its complaint in April 2014.
The Board has held that a personnel action taken within approximately 1 to
4
Although the holdings in Cahill and Jessup involve nonfrivolous allegations of Board
jurisdiction, we find that the principles articulated therein are equally applicable under
the circumstances of this matter.
12
2 years of the disclosures satisfies the knowledge/timing test.
Mastrullo, 123 M.S.P.R. 110, ¶ 21; Schnell, 114 M.S.P.R. 83, ¶¶ 20-22; see
Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001) (finding that
the appellant’s disclosures were a contributing factor in her removal when they
were made approximately 21 months and then slightly over a year before the
agency removed her); cf. Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10
(2003) (finding that a delay of more than 2 years was too remote to satisfy the
knowledge/timing test). Under these circumstances, this time frame satisfies the
timing component of the knowledge/timing test. See Mastrullo, 123 M.S.P.R.
110, ¶ 21 (finding that the appellant satisfied the timing component, given the
ensuing agency investigation and decision to take disciplinary action against the
coworker based in part on the allegations contained in his disclosures).
¶25 If, as here, the respondent has established that his protected whistleblowing
disclosures were a contributing factor in personnel actions taken against him, then
SSA must demonstrate by clear and convincing evidence that it would have taken
the same personnel actions in the absence of such disclosures. 5 U.S.C.
§ 1221(e)(2). In determining whether SSA has met this burden, the Board will
consider the following factors: the strength of the agency’s evidence in support
of its action; the existence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). In Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012), the Federal Circuit
clarified that “[e]vidence only clearly and convincingly supports a conclusion
when it does so in the aggregate considering all the pertinent evidence in the
record, and despite the evidence that fairly detracts from that conclusion.” The
Federal Circuit further determined that “[i]t is error for the [Board] to not
13
evaluate all the pertinent evidence in determining whether an element of a claim
or defense has been proven adequately.” Id.
¶26 The ALJ’s clear and convincing analysis did not identify the tripartite Carr
standard, explicitly analyze any of its elements, or evaluate all of the pertinent
evidence consistent with Whitmore. ID at 49-50. In light of our determination
that SSA proved the failure to follow instructions and failure to follow agency
policy charges and specifications, the relevant evidence as a whole must be
reweighed. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37
(2013). We find that the ALJ is in the best position to do so as he heard live
testimony. Id. Therefore, we remand this claim to the ALJ to make findings on
the Carr factors consistent with the court’s directive in Whitmore. See, e.g.,
Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 27-33 (2013).
ORDER
¶27 We remand this matter for the ALJ to evaluate whether SSA proved by clear
and convincing evidence that it would have filed a complaint under 5 U.S.C.
§ 7521 absent the respondent’s protected disclosures consistent with Carr and
Whitmore. If the ALJ determines on remand that SSA met its burden in this
regard, he shall re-evaluate whether SSA has demonstrated that the proposed
60-day suspension is supported by good cause in light of the Board’s finding that
SSA proved the failure to follow instructions and failure to follow agency policy
charges and specifications. If, however, the ALJ determines that SSA failed to
meet its burden to prove that it would have filed the complaint in the absence of
the respondent’s protected disclosures, he shall make appropriate findings.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.