no. 14-1953 in the united states court of appeals for … · 14-08-2017 · case no. 1:13-cv-02925...

No. 14-1953 _____________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT _____________________________________________________________________________

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, JUDICIAL COUNCIL NO. 1, IFPTE, AFL-CIO, et al.,

Plaintiffs – Appellants,

v.

CAROLYN W. COLVIN, Acting Commissioner Social Security Administration,

Defendant – Appellee.

_____________________________________________________________________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division,

Case No. 1:13-cv-02925 The Honorable Judge Sharon Johnson Coleman

_____________________________________________________________________________

BRIEF OF PLAINTIFFS – APPELLANTS WITH REQUIRED SHORT APPENDIX

_____________________________________________________________________________

Robert H. Stropp, Jr. Rita Eppler C. Philip Curley Diana M. Bardes Marilyn Zahm Cynthia H. Hyndman Olga Metelista William Wenzel ROBINSON CURLEY MOONEY, GREEN, SAINDON, ASSOCIATION OF & CLAYTON, P.C. MURPHY & WELCH, P.C. ADMINISTRATIVE LAW JUDGES 300 South Wacker Drive 1920 L Street, NW, Suite 400 1 East Chase Street, Suite 1126 Suite 1700 Washington, D.C. 20036 Baltimore, Maryland 21202 Chicago, Illinois 60606 (202) 783-0010 (202)783-6088 (312) 663-0303 Counsel for Appellants Counsel for Appellants Counsel for Appellants

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: 14-1953 Short Caption: Association of Administrative Law Judges v. Colvin

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or

amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must

be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED

AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the

corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

Association of Administrative Law Judges, Judicial Counsel No 1, IFPTE, AFL-CIO & CLC;

Cynthia Bretthauer; Robin L. Henrie; and Gilbert A. Martinez (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings

in the district court or before an administrative agency) or are expected to appear for the party in this court:

Mooney, Green, Saindon, Murphy & Welch, P.C.

Robinson Curley & Clayton, P.C. (3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and

None

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

None

Attorney's Signature: /s/ Robert H. Stropp, Jr. Date: 6/5/2014

Attorney's Printed Name: Robert H. Stropp, Jr.

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No

Address: Mooney, Green, Saindon, Murphy & Welch, P.C.;

1920 L Street NW, Suite 400, Washington, DC 20036

Phone Number: 202-783-0010 Fax Number: 202-783-6088

E-Mail Address: [email protected]
















None


None

Attorney's Signature: /s/ Diana M. Bardes Date: 6/5/2014

Attorney's Printed Name: Diana M. Bardes

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No X




















None


None

Attorney's Signature: /s/ Olga Metelitsa Date: 6/5/2014

Attorney's Printed Name: Olga Metelitsa





















None


None

Attorney's Signature: /s/ Rita Eppler Date: 6/5/2014

Attorney's Printed Name: Rita Eppler


Address: Association of Administrative Law Judges;

1 East Chase Street, Suite 1126, Baltimore, MD 21202

Phone Number: 614-975-0966 Fax Number:

















None


None

Attorney's Signature: /s/ Marilyn Zahm Date: 6/5/2014

Attorney's Printed Name: Marilyn Zahm





















None


None

Attorney's Signature: /s/ William Wenzel Date: 6/5/2014

Attorney's Printed Name: William Wenzel





















None


None

Attorney's Signature: /s/ C. Philip Curley Date: 6/5/2014

Attorney's Printed Name: C. Philip Curley


Address: Robinson Curley & Clayton, P.C.;

300 South Wacker Drive, Suite 1700, Chicago, IL 60606


















None


None

Attorney's Signature: /s/ Cynthia H. Hyndman Date: 6/6/2014

Attorney's Printed Name: Cynthia H. Hyndman


Address: Robinson Curley & Clayton, P.C.;

300 South Wacker Drive, Suite 1700, Chicago, IL 60606



i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................... iii JURISDICTIONAL STATEMENT ............................................................................... 1 STATEMENT OF THE ISSUES ................................................................................... 1 STATEMENT OF THE CASE ....................................................................................... 1 SUMMARY OF THE ARGUMENT .............................................................................. 6 STANDARD OF REVIEW ............................................................................................. 7 ARGUMENT .................................................................................................................. 8

I. The Civil Service Reform Act Does Not Preclude Federal Court

Jurisdiction in This Case Brought under The Administrative Procedure Act ......................................................................................... 10

A. The CSRA does not govern this case because the Quota is

not a working condition within the meaning of the CSRA’s prohibited personnel actions ....................................................... 12

B. The CSRA does not govern this case because ALJ

decisional independence is a mandatory requirement of the APA’s overall scheme and draws from the tradition of an independent judiciary, rather than a flexible working condition subject to labor relations ............................................. 22

II. The Office of Special Counsel Lacks Statutory Authority to

Bring This Case Under The CSRA and Is Not an Impediment to Federal Court Jurisdiction in This APA Case ...................................... 27

ii

CONCLUSION ............................................................................................................. 30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE STATEMENT OF COMPLIANCE WITH CIRCUIT RULES 30(a), (b) AND (d) REQUIRED SHORT APPENDIX

iii

TABLE OF AUTHORITIES

Page(s)

CASES Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440 (7th Cir. 2009) ............................................................................... 7 Best v. Adjutant Gen., 400 F.3d 889 (11th Cir. 2005) ........................................................................... 20 Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012) ............................................................................. 17 Bono v. U.S. Social Security Admin., No. 77-0819-CV-W-4 (W.D. Mo.) ......................................................................... 5 Bosco v. United States, 931 F.2d 879 (Fed. Cir. 1991) ..................................................................... 14, 21 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ............................................................................................. 8 Brock v. United States, 64 F.3d 1421 (9th Cir. 1995) ....................................................................... 13, 15 Bush v. Lucas, 462 U.S. 367 (1983) ........................................................................................... 13 Butz v. Economou, 438 U.S. 478 (1978) ................................................................................. 4, 22, 26 Elgin v. Department of Treasury, 132 S. Ct. 2126 (2012) ....................................................................................... 12 Federal Maritime Commission, v. South Carolina State Ports Authority, 535 U.S. 743 (2002) ........................................................................................... 26 Gray v. Office of Personnel Mgmt., 771 F.2d 1504 (D.C. Cir. 1985) ......................................................................... 18 Grosdidier v. Chairman, Broad. Bd. of Gov., 560 F.3d 495 (D.C. Cir. 2009) ..................................................................... 13, 26

iv

Hall v. United States, 617 F.3d 1313 (Fed. Cir. 2010) ................................................................... 14, 21 Hesse v. Dep’t of State, 217 F.3d 1373 (Fed. Cir. 2000) ................................................................... 14, 21 Krafsur v. Davenport, 36 F.3d 1032 (6th Cir. 2013) ............................................................................. 20 Leveski v. ITT Educ. Servs., 719 F.3d 818 (7th Cir. 2013) ............................................................................... 7 Lombardi v. Small Bus. Admin., 889 F.2d 959 (10th Cir. 1989) ........................................................................... 20 Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013) ........................................................... 6, 19, 20, 26 Martin v. Shalala, 63 F.3d 497 (7th Cir. 1995) ................................................................................. 7 Millbrook v. United States, 133 S. Ct. 1441 (2013) ....................................................................................... 15 Nash v. Bowen, 869 F.2d 675 (2d Cir. 1989) cert. denied sub. nom. Nash v. Sullivan, 493 U.S. 813 (1989) ............................................................... 9 Nash v. Califano, 613 F.2d 10 (2d Cir. 1980) .......................................................................... 25, 26 Nat’l Treasury Employees Union v. Chertoff, 385 F. Supp. 2d 1 (D.D.C. 2005) ....................................................................... 21 Nat’l Treasury Employees Union v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff’d., 733 F.2d 114 (D.C. Cir. 1984) ........................................................................... 21 Nat’l Treasury Employees Union v. Whipple, 636 F. Supp. 2d 63 (D.D.C. 2009), partially rev’d. on other grounds, 452 F.3d 839 (D.C. Cir. 2006) ........................................................................... 21

v

OCONUS DOD Empl. Rotation Action Group v. Cohen, 144 F. Supp. 2d 1 (D.D.C. 2010) ............................................................ 21-22, 29 Orsay v. United States Dep’t of Justice, 289 F.3d 1125 (9th Cir. 2002) ........................................................................... 15 Parker v. Astrue, 579 F.3d 920 (7th Cir. 2010) ............................................................................. 17 Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953) ...................................................................................... 3-4, 8 Rollins v. Marsh, 937 F.2d 134 (5th Cir. 1991) ............................................................................. 20 Ruth v. EPA, 13 F.3d 227 (7th Cir. 1993) ................................................................................. 7 Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003) .............................................................................. 20 Stewart v. Evans, 275 F.3d 1126 (D.C. Cir 2002) .......................................................................... 13 Tunik v. Social Security Administration., 93 M.S.P.R. 482 (2003), vacated on other grounds, Tunik v. Merit Sys. Protection Bd., 407 F.3d 1326 (Fed. Cir. 2005) ...................................................... 15, 21, 29, 30 United States v. Fausto, 484 U.S. 439 (1988) ............................................................................... 12, 14, 21 United States v. Morton Salt Co., 338 U.S. 632 (1950) ........................................................................................... 22 Weber v. Merit Sys. Protection Bd., 113 F.3d 1258 (Fed. Cir. 1997) ................................................................... 14, 21 White v. Social Security Administration., 76 M.S.P.R. 447 (1997) .......................................................................... 15, 21, 29 Whitman v. Department of Transportation, 547 U.S. 512 (2006) ........................................................................................... 12

vi

Yu v. U.S. Dep’t of Veterans Affairs, 528 F. App’x 181 (3d Cir. 2013) ........................................................................ 20 STATUTES 5 U.S.C. § 550 et. seq. ..................................................................................................... 2 5 U.S.C. § 551 et seq. ...................................................................................................... 8 5 U.S.C. §§ 551-559 ........................................................................................................ 6 5 U.S.C. § 554(d) .......................................................................................................... 23 5 U.S.C. § 556(c) ............................................................................................................. 9 5 U.S.C. § 556(c)(1)-(10) ................................................................................................. 3 5 U.S.C. § 559 ............................................................................................................... 23 5 U.S.C. §§ 701-706 ........................................................................................................ 6 5 U.S.C. § 1214 ................................................................................................. 19, 27, 28 5 U.S.C. § 1214(a)(1)(A) ......................................................................................... 11, 27 5 U.S.C. § 1214(b)(2)(C) ............................................................................................... 29 5 U.S.C. § 1305 ............................................................................................................... 6 5 U.S.C. § 2301 ............................................................................................................. 11 5 U.S.C. § 2302 ....................................................................................................... 16, 29 5 U.S.C. § 2302(a)(1) .................................................................................................... 11 5 U.S.C. § 2302(a)(2)(A)(xi) .......................................................................................... 15 5 U.S.C. § 2302(a)(2)(A)(xii) ............................................................................ 11, 13, 18 5 U.S.C. § 2302(a)(2)(A)(xiii) ....................................................................................... 28 5 U.S.C. § 2302(b) .................................................................................................. 11, 28 5 U.S.C. § 2302(b)(1)-(12) ................................................................................ 13, 19, 28

vii

5 U.S.C. § 2302(b)(8) .................................................................................................... 28 5 U.S.C. § 2302(b)(9)(A)(i) ........................................................................................... 28 5 U.S.C. § 2302(b)(9)(B) ............................................................................................... 28 5 U.S.C. § 2302(b)(9)(C) ............................................................................................... 28 5 U.S.C. § 2302(b)(9)(D) ............................................................................................... 28 5 U.S.C. § 3105 ............................................................................................................... 6 5 U.S.C. § 3344 ............................................................................................................... 6 5 U.S.C. § 4301(2)(D) ..................................................................................................... 8 5 U.S.C. § 4302 ............................................................................................................... 8 5 U.S.C. § 5372 ............................................................................................................... 6 5 U.S.C. § 7521 ............................................................................................. 6, 13, 16, 29 5 U.S.C. § 7521(a) .................................................................................................. 11, 16 5 U.S.C. § 7521(b) ........................................................................................................ 11 28 U.S.C. § 1291 ............................................................................................................. 1 28 U.S.C. § 1294 ............................................................................................................. 1 42 U.S.C. § 401 et seq. .................................................................................................... 2 RULES Fed. R. App. P. 4(a) ........................................................................................................ 1 Fed. R. Civ. P. 12(b)(1) ................................................................................................... 2 REGULATIONS 5 C.F.R. § 930.201 et. seq. .............................................................................................. 3 5 C.F.R. § 930.206 ........................................................................................................ 23

viii

5 C.F.R. § 930.206(a) ...................................................................................................... 8 OTHER AUTHORITIES Act to Reauthorize the Office of Special Counsel, Pub. L. No. 102-424, sec. 5, 108 Stat. 4361, 4363 (1994) ......................................................................................... 13 G.B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996) ................................ 8 Joint Report of Comm. on Government Affairs and Comm. on the Judiciary, Reform of Federal Regulation, S. Rep. No. 1018, 96th Cong., 2d Sess., pt. 2 (1980) ........................................................................................................................... 23 K. C. Davis, Vol. 2 Administrative Law Treatise, Ch. 10.02 (1958) .......................... 10 Sen. Doc. No. 248, 79th Cong., 2d Sess., 207 (1946) ................................................... 10 Staff of S. Comm. on Homeland Sec. & Governmental Affairs, 113th Cong., How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm (Oct. 7, 2013) ..................................................................................... 17 The Federalist No. 78, Alexander Hamilton, (June 14, 1788) ................................... 26 The U.S. Department of Justice, The Attorney General’s Manual on the Administrative Procedure Act (1947) at https://archive.org/stream/AttorneyGeneralsManualOnTheAdministrativeProcedureActOf1947#page/n1/mode/2up ..................................................................................................................... 3, 8, 9 Whistleblower Protection Enhancement Act, 112-199, sec. 104, 126 Stat. 1465, 1467 .................................................................................................................... 13

1

JURISDICTIONAL STATEMENT

Jurisdiction over this appeal is conferred by 28 U.S.C. § 1291 and 28 U.S.C.

§ 1294 upon the United States Court of Appeals for the Seventh Circuit. The final

Judgment was entered in the District Court by Sharon Johnson Coleman on

February 26, 2014. Appellants’ Notice of Appeal was timely filed with the District

Court within sixty days pursuant to Rule 4(a) of the Federal Rules of Appellate

Procedure on April 28, 2014. No post-judgment motions or motions claimed to toll

the time within which to appeal have been filed in the District Court.

STATEMENT OF THE ISSUES

1. Whether the District Court erred in deciding that the Civil Service

Reform Act precludes federal court jurisdiction over Appellants’ claim that the

Social Security Agency violated the Administrative Procedure Act by imposing a

production quota on the number of cases to be decided by administrative law

judges?

2. Whether the Office of Special Counsel lacks statutory authority under

the Civil Service Reform Act to address the Appellants’ APA claim because the

implementation of the quota is not a change in working conditions constituting a

prohibited employment practice?

STATEMENT OF THE CASE

This is an appeal from a February 26, 2014 decision of the United States

District Court for the Northern District of Illinois, Eastern Division, granting the

Appellee’s Motion to Dismiss brought pursuant to Federal Rule of Civil Procedure

2

12(b)(1). Appellants, Association of Administrative Law Judges, IFPTE, AFL-CIO

(“AALJ”), which represents approximately 1,200 bargaining unit Administrative

Law Judges (“ALJs”), and three named ALJs brought an action for declaratory and

injunctive relief against Appellee, Carolyn W. Colvin, Acting Commissioner of the

Social Security Administration (“SSA” or the “Agency”), after the Agency illegally

instituted a production quota (hereinafter referred to as the “Quota”) on ALJs in

violation of the Administrative Procedures Act (“APA”). The District Court

dismissed the Appellants’ Complaint on the basis that it lacked subject matter

jurisdiction because the Appellants’ claims were precluded by the Civil Service

Reform Act (“CSRA”). Appellants dispute the District Court’s finding that this case

is a federal employment matter preempted by the CSRA and respectfully request

this Court overturn the District Court’s ruling and remand this matter for further

proceedings.

Under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et

seq., the Agency is required to provide benefits to tens of millions of Americans

through a process culminating with a formal adjudication of claims by ALJs. ALJs

rule each year on hundreds of thousands of disability claims brought under the

Social Security Act with the value of each claim estimated to cost $300,000 in

lifetime benefits. [Appellants’ App. 11-12.]

A claimant denied benefits may seek a de novo in-person hearing before the

ALJ and may present evidence and be afforded procedural due process rights in

conformance with the Administrative Procedure Act, 5 U.S.C. § 550 et. seq. [App.

3

13.] The vast majority of claimants are represented at the hearing by counsel. The

government is not represented. [App. 13-14.]

Under the Social Security Act, the ALJ presides over the hearing as an

impartial judge and decision-maker. [App. 13.] In so doing, the ALJ ensures the

claimant receives a full and fair hearing. [Id.] The ALJ must also protect the Social

Security Trust Fund and taxpayers from non-meritorious claims. [Id.] The hearing

is “inquisitorial” in nature, such that the ALJ plays an active role to ensure that the

record is fully developed. [Id.] The ALJ gathers evidence and calls medical and

vocational experts, as needed, and otherwise rules on motions and issues that may

arise in the course of the hearing and in deciding the case. [App. 13-15.]

The ALJ’s powers arise from the APA, 5 U.S.C. § 556(c)(1)-(10), and its

implementing regulations, 5 C.F.R. § 930.201 et. seq. [App. 15.] The Agency is

without authority to withhold such powers from ALJs. Id; The U.S. Department of

Justice, The Attorney General’s Manual on the Administrative Procedure Act 74

(1947). Such authority bestowed upon ALJs is the genesis of the concept of ALJ

decisional independence. [App. 16.]

The Agency acknowledges the ALJ decisional independence through its ALJ

Position Description. [App. 16.] The Position Description incorporates the APA

directives and expresses that the ALJ’s adjudicatory powers are with “full and

complete individual independence of action and decision.” [Id.]

The United States Supreme Court long ago recognized ALJ decisional

independence. The Court in Ramspeck v. Federal Trial Examiners Conference, 345

4

U.S. 128, 131-32 (1953), recognized that Congress intended hearing examiners, now

ALJs, to be a “special class of semi-independent subordinate hearing officers”

entitled to “independence and tenure.” [App. 16.] Twenty-five years later, the Court

underscored the importance of ALJ independence in Butz v. Economou:

[T]here can be little doubt that the role of the modern federal hearing examiner or administrative law judge ... is “functionally comparable” to that of a [trial] judge ... the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by either the parties or other officials within the agency.

438 U.S. 478, 513-14 (1978); [App. 16.] The hallmark of decisional independence is

the freedom to conduct a fair hearing based on a fully developed factual record and

the law without interference by the parties, Agency management, and political or

other pressures. [App. 16.]

The APA guarantees ALJ decisional independence in a number of ways. [App.

17.] In particular, the Agency is prohibited from interfering with ALJ opinion

writing and conduct of hearings; is prohibited from conducting job performance

evaluations or summary removals of ALJs; and is prohibited from the selective

assignment of cases to ALJs. [App. 16-17.] The Agency does not supervise ALJs

during the conduct of hearings and ALJs do not supervise Agency employees. [App.

17.]

Over time, the Agency has attempted to circumvent the prohibitions against

ALJ evaluations by imposing production standards in various forms on the number

of case dispositions by ALJs. [App. 17.] Such production standards have been called

goals, expectations, or benchmarks, all designed to avoid the APA prohibitions on

5

fixed production quotas in the disposition of the number of cases. [App. 17-18.]

When challenged, the Agency entered into a Settlement Agreement to “not issue

directives or memoranda setting any specific number of dispositions by ALJs as

quotas or goals.” [App. 18.] See Bono v. U.S. Social Security Admin., No. 77-0819-

CV-W-4 (W.D. Mo.).

In late 2007, the Agency circulated a letter to ALJs directing a “goal” of case

dispositions of 500-700 decisions per year that should be rendered by each ALJ.

[App. 19.] Appellants allege in the Complaint that by the end of 2009 such a goal

had developed by Agency actions into a fixed, production Quota, unlawful under the

APA. [App. 20-22.] By 2011, the Quota became formalized for each Agency Region,

Hearing Office and individual ALJ in each office. [App. 23-24.]

The Complaint specifically alleges how, as an evidentiary matter, the 500-700

case dispositions per year requirement has become an unlawful Quota prohibited by

the APA. [App. 24-27.] And, significantly, the Complaint details the perverse effect

that such a Quota has on judicial decisional independence. [App. 21-26, 28-30]. It

takes considerably less time to issue a favorable decision granting benefits than it

does denying benefits. [Id.] That is because the claimant, represented by counsel,

closely scrutinizes the legal sufficiency of a denial of benefits. The mere grant of

benefits may be easily accomplished without scrutiny because the government is not

represented by counsel.

The plaintiffs allege factually, and can show statistically, that the

unrelenting emphasis on meeting the Quota tends to influence some ALJs to go the

6

easier route and grant benefits even if they may genuinely believe the Quota has no

substantive effect. [App. 21-26, 28-30]. The Quota thus dictates the outcome of

many cases which is the classic infringement on judicial independence. [App. 27-30.]

SUMMARY OF THE ARGUMENT

Appellants have suffered a legal wrong, an invasion of their APA-vested

judicial independence, by Appellee’s imposition of a production Quota in

contravention of the APA. 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 5372,

7521. As such, the CSRA should not preclude a remedy for the Agency’s clear

violation of the APA.

The District Court erred when it concluded that it lacked subject matter

jurisdiction to hear this case under the APA because the imposed production Quota

is not a working condition subject to the CSRA. To be precluded under the CSRA,

the claim must be related to a particular prohibited action concerning the employer-

employee relationship. Claims are not precluded simply because they arise under

the backdrop of the employee’s federal employment. The District Court, then,

following the non-binding authority of cases such as Mahoney v. Donovan, 721 F.3d

633 (D.C. Cir. 2013) (petition for cert. pending), improperly held that the CSRA

precluded judicial review of the Appellants’ APA claims applying a broad definition

of preclusion while ignoring precedent set by the Merit Systems Protections Board

and the Federal and Ninth Circuits, which take a narrower approach. This Court

should follow the law of the Merit Systems Protection Board and Federal Circuit,

which are bodies entitled to primacy in interpreting the CSRA, and find that the

7

imposition of the unlawful Quota is not a working condition, and thus, not subject to

preclusion under the CSRA.

Moreover, the Quota interferes with ALJ decisional independence – a

requirement of the APA founded on the tradition of an independent judiciary. This

interference cannot be characterized as a change in working conditions subject to

CSRA preclusion, but rather must be characterized as a severe threat to procedural

due process rights that must be and can only be remedied through an APA action.

Finally, the District Court was plainly wrong when it found that the Office of

Special Counsel has prosecutorial authority to investigate the ALJs claims

regarding the Quota. OSC’s jurisdiction is narrowly proscribed to investigate and

prosecute only prohibited personnel actions, of which the Quota is not one. OSC

does not have the authority to investigate changes in working conditions generally

as the District Court would suggest.

STANDARD OF REVIEW

This Court reviews the District Court’s dismissal for lack of subject-matter

jurisdiction de novo. Leveski v. ITT Educ. Servs., 719 F.3d 818, 828 (7th Cir. 2013);

Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009).

Pursuant to Rule 12(b)(1), the Court “must accept as true all well-pleaded factual

allegations and draw reasonable inferences in favor of the plaintiff.” Martin v.

Shalala, 63 F.3d 497, 501 (7th Cir. 1995) (quoting Ruth v. EPA, 13 F.3d 227, 229

(7th Cir. 1993)).

8

ARGUMENT

In 1946, the Administrative Procedure Act1 (5 U.S.C. § 551, et seq.) was

passed to govern the manner in which federal administrative agencies established

their regulations and to provide a process to review agency decisions. As to ALJs,

the APA was designed to create semi-independent presiding officers whose sole and

exclusive function is to hear and decide cases in a fair and impartial manner,

without interference or influence by the agency that employs them. See generally, The

U.S. Department of Justice, The Attorney General’s Manual on the Administrative

Procedure Act (1947) (emphasis added, hereinafter “Manual”), available at

https://archive.org/stream/AttorneyGeneralsManualOnTheAdministrativeProcedure

ActOf1947#page/n1/mode/2up.2 The APA explicitly excepts the ALJ as an

“employee” of the agency. 5 U.S.C. § 4301(2)(D). And, significantly, the agency may

not rate the job performance of the ALJ. 5 U.S.C. § 4302; 5 C.F.R. § 930.206(a). That

is because one of the statute’s core principles was to ensure the judicial

independence of the ALJ, free of agency infringement. See Ramspeck, 345 U.S. at

132-33. Nor may an agency implement production quotas on ALJs as a means to 1 The APA is the “Magna Carta of administrative law.” “The landmark Administrative Procedure Act of 1946 and its history are central to the United States’ economic and political development. The APA was the bill of rights for the new regulatory state. . . . [I]t defined the relationship between the government and the governed. [Its] impact has been profound and durable and represents the country’s decision to permit extensive government, but to avoid dictatorship and central planning. The APA permitted the continued growth of the regulatory state that exists today.” G.B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1678 (1996). 2 Courts give great deference to the Manual. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218 (1988) (Scalia, J. concurring)(writing that the Attorney General’s Manual is “the Government’s own most authoritative interpretation of the APA…which we have repeatedly given great weight.”)

9

circumvent the prohibitions on ALJ performance evaluations and interference with

ALJ judicial independence to fairly and impartially decide cases. Nash v. Bowen,

869 F.2d 675, 680 (2d Cir. 1989) cert. denied sub. nom. Nash v. Sullivan, 493 U.S.

813 (1989).

Ensuring that ALJs’ judicial independence remains unfettered by

performance appraisals and production quotas is essential to ensure the integrity of

the administrative process that directly impacts the rights of nearly one million

Social Security claimants each year. ALJs differ from non-ALJ federal employees

because of their exercise of judicial functions, their statutory powers under 5 U.S.C.

§ 556(c),3 and the Congressional mechanism - direct vesting of the powers in ALJs

without the necessity of agency delegation - for safeguarding these powers.4

The intent behind 5 U.S.C. § 556(c) was expressed in the legislative history of

the APA, where the Senate Committee said that the presiding officer “should

3 Section 7(b) provides that “Officers presiding at hearings shall have authority, subject to the published rules of the agency and within its powers, to (1) administer oaths and affirmations, (2) issue subpoenas authorized by law, (3) rule upon offers of proof and receive relevant evidence, (4) take or cause depositions to be taken whenever the ends of justice would be served thereby, (5) regulate the course of the hearing, (6) hold conferences for the settlement or simplification of the issues by consent of the parties, (7) dispose of procedural requests or similar matters, (8) make decisions or recommend decisions in conformity with section 8, and (9) take any other action authorized by agency rule consistent with this Act.” Manual at 74. 4 The APA effectuates needed adjudicatory reforms by creating semi-independent, impartial, quasi-judicial “hearing examiners” under Section 7(a) and vesting these officers directly, upon their appointment to the position, with enumerated powers in Section 7(b) necessary to hear and decide cases free from agency interference and influence. “[N]ot only are the enumerated powers thus given to hearing officers by section 7(b) without the necessity of express agency delegation, but an agency is without power to withhold such powers from its hearing officers” (emphasis added). This follows not only from the statutory language, “shall have authority”, but from the general statutory purpose of enhancing the status and role of hearing officers. Manual at 74.

10

independently exercise all the power numbered in the subsection. The agency

itself . . . should not in effect conduct hearings from behind the scenes where it

cannot know the detailed happenings in the hearing room and does not hear or see

the private parties.” Sen. Doc. No. 248, 79th Cong., 2d Sess., 207 (1946). See also K.

C. Davis, Vol. 2 Administrative Law Treatise, Ch. 10.02 (1958).

I. The Civil Service Reform Act Does Not Preclude Federal Court Jurisdiction in This Case Brought under The Administrative Procedure Act. The District Court incorrectly characterized the Appellants’ claims as

stemming from a change in “working conditions” based upon the Agency’s direction

that ALJs must adhere to a production Quota. The Court ignored the Agency’s

interference with ALJ decisional independence mandated by the APA. Thus, the

District Court incorrectly concluded that the Appellants’ claims fall squarely within

the CSRA’s coverage. Indeed, the position that all actions taken by a federal

employer are subject to the CSRA serves to ignore the clear text and intent of both

that statute as well as the APA. This Court should be guided by the Supreme Court,

Federal Circuit, and Merit Systems Protection Board (“MSPB”) in looking to the

nature of the claim asserted by a federal employee to determine whether the alleged

wrong constitutes a personnel action within the proper scope of CSRA preclusion.

The claims here assert a violation of the APA, rather than a change in working

conditions.

The CSRA provides a two-track mechanism to challenge employment actions

arising in federal employment. First, an agency may take specified “adverse

11

actions” against an ALJ only if the MSPB first determines, after an opportunity for

a hearing, that there is good cause for such action. 5 U.S.C. § 7521(a). Adverse

actions are serious and consist of removal, suspensions, reductions in grade,

reductions in pay, and furloughs of 30 days or less, with some exceptions. Id. at

§ 7521(b). In the second category of other offenses, allegations that an agency took a

“prohibited personnel practice”5 against a federal employee must be directed to and

investigated by the Office of Special Counsel, which may then bring a case

challenging such action before the MSPB. Id. at § 1214(a)(1)(A). It is in this second

category of “personnel practices” that the Court below improperly placed Appellants’

claims.

A personnel practice is defined to include an appointment, promotion, and

reassignment, as well as any action that constitutes a “significant change in duties,

responsibilities, or working conditions.” Id. at § 2302(a)(2)(A)(xii). A personnel

action is prohibited if an agency official engages in at least one of thirteen types of

conduct in taking, directing, or recommending a personnel action: discrimination;

consideration of improper recommendations; coercion of political activity;

obstruction of fair competition; grant of a preference not authorized by law;

nepotism; retaliation for whistleblowing or for exercising grievance or appeal rights;

violation of veteran’s preference rights; enforcement of an illegal nondisclosure

policy; and contravention of the laws, rules, or regulations implementing the merit-

system principles at 5 U.S.C. § 2301. Id. at § 2302(b).

5 The terms “prohibited personnel practice” and “prohibited personnel action” are synonymous under the CSRA. 5 U.S.C. § 2302(a)(1).

12

Here, the Quota cannot be characterized as a personnel practice because the

Agency’s imposition of production quota cannot be a “working condition.”

Additionally, the Appellants have claimed a clear violation of the APA and the

requirements of the APA should be applied to the claim, not the preclusive effect of

the CSRA.

A. The CSRA does not govern this case because the Quota is not a working condition within the meaning of the CSRA’s prohibited personnel actions.

The CSRA’s definition of personnel action is not broad enough to encompass

every claim arising out of conduct that could occur on the job. Supreme Court

precedent and Congressional amendments have refined the CSRA’s scope by

differentiating that agency-employer conduct that falls within the CSRA’s domain

and that which falls outside of it. The Supreme Court held that certain personnel

actions may only be challenged under the CSRA. United States v. Fausto, 484 U.S.

439 (1988) (holding that the CSRA precluded claims by federal employees under the

Back Pay Act). Then, in Whitman v. Department of Transportation, 547 U.S. 512,

514-15 (2006), the Court recognized the open question of whether “the CSRA as a

whole [] removes the jurisdiction given to the federal courts or otherwise precludes

employees from pursuing remedies beyond those set out in the CSRA” and

remanded to the Ninth Circuit to decide whether the CSRA precluded a federal

employee’s lawsuit that nonrandom drug searches violated his Constitutional rights

and the Aviation and Transportation Security Act. Id. at 513-15. Subsequently, in

Elgin v. Department of Treasury, 132 S. Ct. 2126, 2140 (2012), the Court clarified

13

that a claim is not preempted if wholly collateral to the CSRA’s remedial scheme.

Similarly, as originally enacted in 1978, the CSRA’s definition of personnel action

did not include at least two additional types of employer conduct that were

subsequently added by amendment: psychiatric testing in 1994 and the

nondisclosure provisions in 2012. See Act to Reauthorize the Office of Special

Counsel, Pub. L. No. 102-424, sec. 5, 108 Stat. 4361, 4363 (1994); Whistleblower

Protection Enhancement Act, 112-199, sec. 104, 126 Stat. 1465, 1467.

As further cautioned by the Supreme Court in Bush v. Lucas, 462 U.S. 367,

385 n.28 (1983), not every action that arises in the context of federal employment is

a working condition. Therein, the Supreme Court noted, “certain actions by

supervisors against federal employees, such as wiretapping, warrantless searches,

or uncompensated takings, would not be defined as ‘personnel actions’ within the

statutory scheme.” 462 U.S. at 385 n.28. And, not every unlawful action taken

against a federal employee constitutes a violation of the CSRA.6 The CSRA protects

federal employees only “when their rights under the statute are violated.”

Grosdidier v. Chairman, Broad. Bd. of Gov., 560 F.3d. 495, 497 (D. C. Cir. 2009).7

6 Examples of actions specifically not preempted by the CSRA include: wiretapping, warrantless searches, or uncompensated takings, Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983); Bivens actions, Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir 2002); Federal Tort Claims Act actions for negligent supervision based on an agency’s failure to prevent a rape by a supervisor, Brock v. United States, 64 F.3d 1421, 1425 (9th Cir. 1995). 7 Those rights include: protecting ALJs specifically under 5 U.S.C. § 7521 from five enumerated agency actions- removal, suspension, reduction in grade, pay, or furlough-without “good cause” and the right of all federal employees to be free from a “prohibited personnel practice” taken against an employee, including a significant change in working conditions” based on improper motives, such as discrimination, coercion of political activity, nepotism, or retaliation, 5 U.S.C. §§ 2302(a)(2)(A)(xii) and (b)(1)-(12).

14

The Federal and Ninth Circuits, following the Supreme Court’s decision in

Fausto, inquire as to whether the conduct of which the employee complains relates

to the actual agency-employer conduct prohibited by the CSRA when deciding

CSRA preclusion, not simply whether the claim arises in the context of federal

employment. The Federal Circuit has recognized that when the CSRA does not

address the type of action brought by a plaintiff, the preemptive force of the CSRA

does not deprive the court of jurisdiction. See Bosco v. United States, 931 F.2d 879,

883 (Fed. Cir. 1991) (“The Supreme Court did not rule that the CSRA provided the

only means of judicial review of any actions affecting federal employees, but rather

that it was the only means of review as to the types of adverse personnel action

specifically covered by the CSRA”). See also e.g., Hall v. United States, 617 F.3d

1313, 1316 (Fed. Cir. 2010) (the CSRA does not encompass the denial of pay for

periods in which the employee is deemed to be AWOL and therefore does not

preclude federal district court jurisdiction in a Back Pay Act case based on such

action); Hesse v. Dep’t of State, 217 F.3d 1373, 1378 (Fed. Cir. 2000) (suspension of a

security clearance does not fall within the scope of the CSRA); Weber v. Merit Sys.

Protection Bd., 113 F.3d 1258 (Fed. Cir. 1997) (per curium) (violations of an

employee’s Sixth Amendment right to confrontation and cross-examination of

witnesses is not a personnel action within the meaning of the CSRA). The Federal

Circuit has recognized that when the CSRA does not address the type of action

brought by a plaintiff, the preemptive force of the CSRA does not deprive the court

of jurisdiction. See Bosco, 931 F.2d at 883.

15

Similarly, the Ninth Circuit has rejected the proposition that acts adverse to

employees constitute personnel actions simply because they occur on the job or as a

result of federal employment. See Orsay v. United States Dep’t of Justice, 289 F.3d

1125, 1131 (9th Cir. 2002) (claim that U.S. Marshals had a loaded weapon aimed at

them by supervisors was not preempted by the CSRA) (abrogated on other grounds

by Millbrook v. United States, 133 S. Ct. 1441 (2013)); Brock v. United States, 64

F.3d 1421, 1424-25 (9th Cir. 1995) (CSRA does not preempt tort claims based on

allegations of on the job sexual assault).

It is unsurprising that the MSPB – the administrative body charged with

interpreting and applying the CSRA – has similarly understood the term “personnel

action” to not necessarily include everything that conceivably might happen to an

employee as a result of his federal employment. Specifically, in White v. Social

Security Administration., 76 M.S.P.R. 447, 458 (1997), an ALJ alleged that the

Social Security Administration’s Acting Associate Commissioner approved “the

removal of certain cases from his docket” and thus interfered with his decisional

independence. The MSPB concluded that such selective removal of cases from an

ALJ’s docket did not “constitute a ‘personnel action’ under 5 U.S.C.

§ 2302(a)(2)(A)(xi).” Id. at 462.

Furthermore, under the MSPB’s decision in Tunik v. Social Security

Administration., 93 M.S.P.R. 482 (2003), vacated on other grounds, Tunik v. Merit

Sys. Protection Bd., 407 F.3d 1326 (Fed. Cir. 2005), an ALJ may not challenge

interference with his decisional independence by proceeding directly to the MSPB

16

under 5 U.S.C. § 7521(a). Id. at 492 n.*. For that very reason, the MSPB recognized

that an ALJ may instead “have a remedy in federal court for the agency’s alleged

interference with his qualified judicial independence.” Id.

In the instant case, the Appellants are not seeking relief for a violation of

rights under the CSRA at Sections 5 U.S.C. § 7521 or § 2302 because they do not

complain of change in working conditions or other personnel action. Rather, the

challenge here is to the Agency’s direct attempt to infringe on judicial independence

and decision-making by the imposition of a production Quota. The policy at issue

impacts the whole of SSA’s judiciary, nationally including over 1,500 ALJs.8 [App.

12.] Unlike with the discrete personnel actions contemplated under the CSRA, this

case is not an action in which the Appellants are seeking relief based on an adverse

personnel action taken against any specific individual judge. See 5 U.S.C. §§ 7521,

2302.

The imposition of the Quota on ALJs, who are a unique class of employees

and a creature of statute, is not an employment dispute but, rather, an attack on

judicial independence that does not fall under the statutory scheme of the CSRA.

ALJs are entrusted with the responsibility of adjudicating the claims of people

seeking disability benefits. The decision to grant or deny benefits has a monumental

impact on the claimant’s life and family as well as on the public.9 Treating these

important cases as nothing more than a commodity to be disposed of according to

8 The AALJ bargaining unit at SSA consists of approximately 1,200 ALJs. There are approximately 1,500 SSA ALJs overall and approximately 1,800 total ALJs across the federal government. 9 On average, each case is worth approximately $300,000 in lifetime benefits. [App. 12.]

17

rigid, unproven and unrealistic deadlines, regardless of the correctness of the

outcome, interferes with the ALJs’ ability to adjudicate and render carefully

reasoned decisions. The ever increasing pressure on ALJs, to comply with

unreasonable and unmanageable deadlines and quotas, has forced some ALJs into

cutting corners in an attempt to meet the Quota.10 [App. 26, 28-30, 36.]

Consequently, even this Court has been critical of SSA ALJ decisions for reliance on

meaningless boilerplate language, use of templates, failure to cite to the evidence

and no real analysis to support conclusions.11

The Agency has imposed mandatory production demands without any

underlying study or proof that the demands can reasonably be accomplished while

complying with the requirements of properly adjudicating each individual case.

[App. 18, 20, 23-24.] Rather, a formulaic computation is used to arrive at a

nationwide “budgeted disposition” number. This number is negotiated by senior

management and the Office of Management and Budget (“OMB”) and takes into

account fiscal, political, and other pressures wholly unrelated to the substance,

10 Indeed, in a well-publicized case, Huntington, WV ALJ David Daugherty issued some 1,410 decisions in 2009, only five of which denied benefits. Staff of S. Comm. on Homeland Sec. & Governmental Affairs, 113th Cong., How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm, 4 (Oct. 7, 2013). In 2010, ALJ Daugherty issued 1,375 cases and only denied benefits in 4 cases. Id. During his last six years at the Huntington Office, ALJ Daugherty averaged 1,200 case dispositions per year totaling approximately $2.5 billion dollars in benefits paid to claimants. Id. The Senate Committee, in investigating this matter, concluded in its report that the Agency pressured ALJs to decide a high number of cases while failing to ensure the quality of the decisions produced. Id. at 14. It further found that Judge Daugherty used Agency policies to approve his high number of cases. Id. at 17. 11 See Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012); Parker v. Astrue, 579 F.3d 920 (7th Cir. 2010).

18

merits and circumstances of pending claims. The Quota is based on the number of

cases pending divided by the number of ALJs. [App. 18, 20, 23-24.] As the economy

experiences economic downturns and the number of cases filed seeking disability

benefits increases, so does the expectation for higher disposition numbers, and the

Quota increases. What was acceptable one year for a judge is then found to be

substandard performance in another year, with absolutely no change in the ALJs’

responsibilities. [App. 23.] Thus, as the Quota does not change the ALJs’ underlying

responsibility to decide cases, the Quota is not a change in the ALJ’s workload or

working conditions. See 5 U.S.C. at § 2302(a)(2)(A)(xii). Rather, the Quota

undermines the ALJs’ ability to independently decide cases by interfering with

carefully reasoned decision-making in favor of high disposition numbers.

The District Court’s opinion that all actions taken by an employer are subject

to the CSRA serves to ignore the clear text and intent of that statute. This Court

should look to the precise nature of the claim asserted to determine whether the

alleged wrong constitutes a personnel action within the proper scope of CSRA

preclusion, rather than assuming that all claims with the background

circumstances of federal employment must be within the CSRA’s scope. ALJs are a

unique class of employees, set apart from other civil service employees and are a

creature of statute.12 The Agency action which imposes a Quota on ALJs is not a

12 The Court in Gray v. Office of Personnel Mgmt., 771 F.2d 1504 (D.C. Cir. 1985), found that the unique status of ALJs did not exempt them from CSRA preclusion. However, the Grey case is distinguishable on its facts. The ALJ plaintiffs in the Gray case brought a classic personnel action, seeking promotion and back pay, and sought to be exempt from the CSRA simply because of their status as ALJs. Their adjudicatory duties and threat to judicial independence were not central to the issues in that case.

19

mere personnel complaint or a complaint about working conditions subject to labor

relations. In ordering ALJs to adhere to artificial and unproven and unrealistic

timeline for decision-making, the Agency has placed itself directly into the decision-

making role and improperly usurped the role of the ALJ.

The District Court’s reliance on the District of Columbia Circuit opinion in

Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013) (petition for cert. pending), is

misplaced. There, the D.C. Circuit found that an agency’s selective assignment of

cases to an individual ALJ was governed by the CSRA by taking the extreme

position that any action arising from an employee’s status as a civil service

employee must be a personnel action within the meaning of the CSRA. Id. at 636.

The Mahoney Court incorrectly determined that the APA requirement of decisional

independence is a “working condition,” for which it cited no authority. Id. at 635-36

(in so finding, the Court simply stated, “[t]hat strikes us as a working condition.”).

In addition, the Mahoney Court inaccurately concluded that the OSC had authority

to investigate interference with ALJ decisional independence. Id. As discussed

below, the OSC authority is specifically limited to personnel actions that are

motivated by improper reasons such as discrimination, coercion of political activity,

nepotism, or retaliation. 5 U.S.C. §§ 1214, 2302(b)(1)-(12); Mahoney, 721 F.3d at

635-36. OSC’s statutory authority provides no basis for review of an agency-

employer action that intentionally interferes with APA-mandated decisional

independence but has no additional improper motivations. 5 U.S.C. §§ 1214,

2302(b)(1)-(12). Finally, unlike the instant case, the action at issue in Mahoney was

20

limited to one specific judge targeted by one specific supervisor and not agency-wide

action involving 1,500 ALJs. Mahoney, 721 F.3d 633.

While the Circuit courts are split as to the preemptive scope of the CSRA,

deference is due to the Federal Circuit and MSPB’s interpretation of the CSRA as

permitting APA review of some agency-employer actions.13 This Circuit should

reject the rigid view that essentially any action arising from an employee’s status as

a civil service employee constitutes a personnel action.

This Court should give deference to the decisions of the Court of Appeals for

the Federal Circuit and the MSPB because the Supreme Court has held that those

decisions are entitled to “primacy” in matters of interpretation of CSRA:

The second structural element [of the CSRA] is the primacy of the MSPB for administrative resolution of disputes over adverse personnel

13 While Appellants acknowledge there are cases contrary to Appellants’ position, these cases are factually distinguishable from the instant case because, without dispute, they involve working conditions (suspensions, terminations, withholding wages, performance evaluations) and prohibited motivations (discrimination, retaliation, whistleblowing) that clearly fall within the CSRA’s ambit. See, e.g., Yu v. U.S. Dep’t of Veterans Affairs, 528 F. App’x 181, 184-85 (3d Cir. 2013) (where employee was terminated for defying orders to close a VA laboratory, CSRA foreclosed Bivens, Privacy Act, and APA claiming retaliation for his statements to the press and local media advocating against the lab’s planned closure); Krafsur v. Davenport, 736 F.3d 1032, 1037 (6th Cir. 2013) (CSRA precludes Bivens, APA, and Tucker Act claims based SSA supervisor withholding ALJ’s paycheck because his awards of attorney fees were too low); Best v. Adjutant Gen., 400 F.3d 889, 894-95 (11th Cir. 2005) (CSRA precluded APA claim based on employee’s termination for providing unauthorized access to secured information and an overall unacceptable performance rating); Sarullo v. U.S. Postal Serv., 352 F.3d 789, 796 (3d Cir. 2003) (where employee was investigated by USPS and subsequently arrested for dealing drugs at work, employee’s Bivens claim for malicious prosecution clearly arose in the employment context and was therefore precluded by the CSRA); Rollins v. Marsh, 937 F.2d 134, 138 (5th Cir. 1991) (holding Bivens, Federal Tort Claims Act, and Title VII claims based on employee’s suspension as a result of sex discrimination are precluded by the CSRA because the CSRA expressly includes actions under anti-discrimination statutes); Lombardi v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) (Bivens claim based on employee’s termination as a result of discrimination for party affiliation and retaliation for participation in an EEO investigation was precluded by the CSRA).

21

action, 5 U.S.C. §§ 1205, 4303(e), 7513(d), 7701 (1982 ed. and Supp. IV), and the primacy of the United States Court of Appeals for the Federal Circuit for judicial review, § 7703. This enables the development, through the MSPB, of a unitary and consistent Executive Branch position on matters involving personnel action, avoids an “unnecessary layer of judicial review” in lower federal courts, and “(e]ncourages more consistent judicial decisions . . . .” S. Rep. No. 95-969, at 52; see Lindahl v. OPM, 470 U.S., at 797-798.

Fausto, 484 U.S. at 449. Both the Federal Circuit and MSPB have held that when

the CSRA does not address the type of action brought by a plaintiff, the CSRA does

not deprive a federal court of jurisdiction to hear the case as a violation of another

law. See Hall, 617 F.3d at 1316; Hesse, 217 F.3d at 1378; Weber, 113 F.3d at 1258;

Bosco, 931 F.2d at 883; Tunik, 93 M.S.P.R. at 482; White, 76 M.S.P.R. at 458.

Further, APA claims such as the ones raised here which do “not seek to

address adverse personnel actions regarding specific employees,” are not precluded

by the CSRA. See Nat’l Treasury Employees Union v. Whipple, 636 F. Supp. 2d 63,

71 (D.D.C. 2009), partially rev’d. on other grounds, 452 F.3d 839 (D.C. Cir. 2006)

(union challenge under APA to program allowing agency to use interns to fill vacant

positions not precluded under CSRA because it concerned Agency authority to

promulgate rules, not specific action against employee). See also Nat’l Treasury

Employees Union v. Chertoff, 385 F. Supp. 2d 1, 23 (D.D.C. 2005); Nat’l Treasury

Employees Union v. Devine, 577 F. Supp. 738, 745 (D.D.C. 1983) (union action

challenging agency rules were not preempted by CSRA), aff’d., 733 F.2d 114, 117

n.8 (D.C. Cir. 1984). The APA has been found to provide jurisdiction for federal

courts to hear challenges to agency regulations or policies of general application on

the grounds that they were inconsistent with the statute. See OCONUS DOD Empl.

22

Rotation Action Group v. Cohen, 144 F. Supp. 2d 1, 7-8 (D.D.C. 2010) (allowing

review under the APA because plaintiffs were not challenging personnel decisions

made in any individual case). There can be no clearer example of an agency policy

not specific to individual employees or employee working conditions than a

production Quota that applies to 1,500 ALJs and undermines their APA-mandated

responsibility of decisional independence.

B. The CSRA does not govern this case because ALJ decisional independence is a mandatory requirement of the APA’s overall scheme and draws from the tradition of an independent judiciary, rather than a flexible working condition subject to labor relations.

Administrative Law Judges are creatures of law, the APA, and their defining

requirement under the APA is their decisional independence. The APA is an

intricate scheme designed to check the power of agency administrators: “[t]he

Administrative Procedure Act was framed against a background of rapid expansion

of the administrative process as a check upon administrators whose zeal might

otherwise have carried them to excesses not contemplated in legislation creating

their offices. It created safeguards even narrower than the constitutional ones,

against arbitrary official encroachment on private rights.” United States v. Morton

Salt Co., 338 U.S. 632, 644 (1950). The ALJ plays a crucial role in the APA’s

design, as “the process of agency adjudication is currently structured so as to

assure that the hearing examiner exercises his independent judgment on the

evidence before him, free from pressures by either the parties or other officials

within the agency.” Butz, 438 U.S. at 513-14.

23

Through numerous mechanisms, the APA pointedly insulates ALJs from

interference with their decisional independence by the agencies for which they

work. The APA specifically prohibits an ALJ from being subject to the direction

and whims of an agency’s political components, stating that ALJs may not “be

responsible to or subject to the supervision or direction of an employee or agent

engaged in the performance of investigative or prosecuting functions for an

agency.” 5 U.S.C. § 554(d). Further, in order to guarantee decisional independence,

no agency, including the SSA, may evaluate the performance of an ALJ. 5 C.F.R.

§ 930.206. Congress has specifically noted that “agencies are not, at any time,

permitted to appraise ALJ performance.” Joint Report of Comm. on Government

Affairs and Comm. on the Judiciary, Reform of Federal Regulation, S. Rep. No.

1018, 96th Cong., 2d Sess., pt. 2, at 69 (1980). Thus, ALJ decisional independence

is a required component of the entire APA scheme, not merely a working condition

subject to change by labor relations.

The APA scheme is not subject to change absent evidence that Congress

expressly and explicitly provides that another statutory scheme may alter any part

of the APA scheme. At 5 U.S.C. § 559, the APA unambiguously provides that

“[s]ubsequent statute may not be held to supersede or modify this subchapter [5

U.S.C. §§ 551 et seq.], chapter 7 [5 U.S.C. § 701 et seq.], sections 1305, 3105, 3344,

4301(2)(E), 5372, or 7521 of this title, or the provisions of section 5335(a)(B) of this

title that relate to administrative law judges, except to the extent that is does so

expressly.”

24

As alleged in the Complaint, there can be no question that the Quota imposed

by the Agency here interferes with ALJs’ judicial independence because the Quota

acts as a directive to decide cases in a certain way. The Agency’s Quota

impermissibly results in ALJs issuing favorable decisions and cutting corners,

thereby denying procedural due process rights and infringing upon necessary

safeguards to protect the Social Security Trust Fund and the public. The Quota

achieves this in two ways. First, through the Quota, the Agency instructs ALJs to

decide cases as quickly as possible to meet unreasonable production goals. The

Agency acknowledges, as it must, that it takes less time to issue favorable decisions

to claimants than it does to issue a decision denying benefits. [App. 21.] Thus, faced

with an unreasonable Quota, an ALJ more quickly disposes of cases if he or she

grants the claim for benefits. Moreover, ALJs have even been instructed that if they

can find a way to award benefits, they do not have to spend additional time

reviewing the entirety of the case file. [App. 28.] Accordingly, ALJs are clearly

directed and encouraged to award benefits to quickly dispose of cases. Second, many

ALJs who strive to reach the production goals are forced to cut corners by not

reading the whole record, failing to read or revise drafts of decisions before signing

them, and refraining from ordering additional medical experts even where Agency

and APA regulations require it in order to process cases as quickly as the Quota

requires. [App. 29, 36.]

Accordingly, the production quota that interferes with ALJ decisional

independence, despite the mandate under the APA, is a trespass on the entire APA

25

scheme of administrative law, not a mere working condition of a federal ALJ

employee. In Nash v. Califano, 613 F.2d 10, 13 (2d Cir. 1980), Chief Judge Irving

Kaufman was faced with a complaint that in part mirrors the action filed in the

instant case. Plaintiff Nash, an ALJ, challenged SSA’s imposition of an unlawful

production quota as violative of the APA’s prohibition on performance standards. Id.

In reversing the trial court’s dismissal of the Nash complaint, the Chief Judge

acknowledged that, because the ALJs came to be perceived as “mere tools” of the

agencies during the 1930s and early 1940s, Congress enacted the APA in 1946 to

remove a large degree of control over ALJs from their agencies. This included

exempting ALJs from the performance ratings required for other civil service

employees, in order to confer a qualified right of decisional independence. Judge

Kaufman emphasized that the statutory provisions of the APA:

… draw upon the more ancient wisdom grounded in history and contained in Article III, which safeguards federal judicial independence through still more stringent compensation and tenure provisions. See Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681 (1979). The independent judiciary is structurally insulated from the other branches to provide a safe haven for individual liberties in times of crisis. By analogy, “the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency.” Butz v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894, 2914, 57 L. Ed. 2d 895 (1978).

Califano, 613 F.2d at 15 (footnote omitted).14

14 The Court also noted that the Social Security Administration’s own position description for ALJs recognized the limitations upon its power over the ALJs’ decisionmaking process: “… ALJs possess “full and complete individual independence of action and decision . . . without review (and) full responsibility and authority” for the conduct of hearings and the disposition of cases. “The Social Security and Administrative Procedure Acts,” the

26

In the instant case, as in Califano, it is abundantly clear that the ALJ’s

qualified right of decisional independence is a product of the tradition of an

independent judiciary, rather than a working condition subject to labor relations. In

wrongly holding that the Quota is a mere working condition, not only did the

District Court fail to discuss the Califano case, but in its rush to embrace the easy

but ill-fitting solutions offered by such cases as Grosdidier v. Chairman, Broad. Bd.

of Gov., 560 F.3d 495 (D.C. Cir. 2009) and Mahoney v. Donovan, 721 F.3d 633 (D.C.

Cir. 2013), the District Court ignored the “the more ancient wisdom grounded in

history and contained in Article III, which safeguards federal judicial

independence.” Califano, 613 F.2d at 15.

As Butz holds, federal ALJs are functionally comparable to Article III judges

because the nature and scope of judicial independence is statutorily conferred on

ALJs by the APA. It is not simply a “working condition” but an aspect of “that

independent spirit in the judges which must be essential for the faithful

performance of so arduous a duty.” The Federalist No. 78, at 437 (Alexander

Hamilton (“Publius”)) (June 14, 1788). Following its ruling in Butz, the Supreme

Court further undertook an expansive comparison of the role of the ALJ and that of

Article III judges in Federal Maritime Commission, v. South Carolina State Ports

Authority, 535 U.S. 743, 756-759 (2002) and in doing so reaffirmed Butz, noting that

the Commission’s “Rules of Practice and Procedure confirms that the FMC

description continues, “prohibit substantive review and supervision of the (ALJ) in the performance of his quasi-judicial functions. His decisions may not be reviewed before publication, and after publication only by the Appeals Council in certain prescribed circumstances. He is subject only to such administrative supervision as may be required in the course of general office management.” Califano, 613 F.2d at 15.

27

administrative proceedings bear a remarkably strong resemblance to civil

litigation,” 535 U.S. 743, 757, and “the role of the ALJ, the impartial officer

designated to hear a case…is similar to that of an Article III judge.” 535 U.S. at 758

(footnote omitted).Yet, in its cursory analysis of the Complaint, the District Court

gave scant analysis or consideration to these distinctions and to the factual

allegations pled respecting the unlawful Quota.

Accordingly, because this is a case that addresses a clear violation of the

APA’s mandatory adjudicative scheme and not a change in working conditions, the

CSRA should not preclude the Appellants from pursuing their claims against the

Agency for the unlawful Quota.

II. The Office of Special Counsel Lacks Statutory Authority to Bring This Case Under The CSRA and Is Not an Impediment to Federal Court Jurisdiction in This APA Case. The District Court incorrectly concluded that it lacked subject matter

jurisdiction because Appellants would be able to bring their claims before the Office

of Special Counsel (“OSC”) under 5 U.S.C. § 1214. In fact, the OSC has no authority

over Appellants’ claims because the Quota is an agency-wide policy, is not a working

condition, is not motivated by one of the CSRA’s thirteen improper motivations, and

the only forum in which the OSC can bring cases has rejected claims of agency

interference with judicial independence as outside its subject matter jurisdiction.

The OSC’s jurisdiction is premised on a determination that a prohibited personnel

action has occurred, exists, or is about to be taken. 5 U.S.C. § 1214(a)(1)(A). As

explained above, a “personnel action” is defined to include, among other things, any

28

action that constitutes a “significant change in duties, responsibilities, or working

conditions.” 5 U.S.C. § 2302(a)(2)(A)(xiii). But, the OSC does not have the power to

investigate any change in “working conditions” generally. See id. Instead, the OSC

is only authorized under 5 U.S.C. § 1214 to investigate “prohibited personnel

practices” motivated by thirteen types of improper reasons, such as retaliation

against whistle-blowing, discrimination, coercion of political activity, nepotism, or

obstruction of fair competition. 5 U.S.C. §§ 1214, 2302(b)(1)-(12).15 Nowhere in the

statute can be found any provision that even remotely suggests that an APA

violation by the imposition of a production quota fits into the prohibited personnel

practices scheme.

Appellants, however, do not raise claims that fall under the jurisdiction of the

OSC, as the imposition of Quota is not a “working condition” for the reasons stated

in Part I, Section A, supra, and the improper motivation ascribed to the Agency is

not one that is enumerated in 5 U.S.C. § 2302. Moreover, even assuming arguendo

that the APA-guaranteed right to ALJ decisional independence is a “working

condition,” there is nothing in the CSRA or the APA to suggest that the Agency is

free to impose an otherwise unlawful Quota that interferes with ALJs’ decisional

independence, as long as the agency does not violate 5 U.S.C. Section 2302.

Furthermore, this case lies outside the CSRA’s domain and OSC’s authority

because the Quota involves agency-wide action affecting hundreds of SSA ALJs.

15 It is noted that the only “prohibited personnel action” complaints which can be unilaterally taken by a federal employee to the MSPB if the Office of Special Counsel fails to take remedial action on them are “whistle-blowing” related complaints defined in 5 U.S.C. §§ 2302(b)(8) and (9)(A)(i), (B), (C) or (D).

29

Even if a single ALJ could have possibly pursued an individual claim through the

OSC, the OSC “lacks the power to invalidate any agency policy or action.” OCONUS

DOD Empl. Rotation Action Group, 144 F. Supp. 2d at 7. Thus, the Appellants’

claims here are properly brought under the APA because the allegations in the

instant case relate to the Agency’s interference in the adjudicatory process as a

general matter. This specific agency conduct as a whole constitutes unlawful

interference with the APA’s guarantee of decisional independence and cannot be

remedied by anything short of complete invalidation of the Quota policy.

Finally, Appellants cannot reasonably expect to bring their claims before

OSC because the MSPB, the only forum in which the OSC can bring cases, has

repeatedly rejected claims of agency interference with judicial independence as

outside its subject matter jurisdiction. Under the CSRA, if the Special Counsel

determines that a prohibited personnel practice has occurred and the agency does

not act to correct the practice within a reasonable period of time, the Special

Counsel has discretion to file a case before the MSPB seeking corrective action. Id.

at § 1214(b)(2)(C). See 5 U.S.C. §§ 7521, 2302; Tunik, 93 M.S.P.R. at 492; White, 76

M.S.P.R. at 458. The MSPB gave reasoned consideration to the issue of jurisdiction

in Tunik v. Social Security Administration and concluded:

The appellant may have a remedy in federal court for the agency’s alleged interference with his qualified judicial independence. In Chocallo v. Bureau of Hearings and Appeals, 548 F. Supp. 1349 (E.D. Pa. 1982), for instance, the ALJ asserted that various agency practices interfered with her judicial independence. Id. at 1354. The district court judge found that “jurisdiction is properly asserted under 28 U.S.C. §§ 1331 and 1343.” Id. Section 1331 of Title 28 provides that district courts “shall have original jurisdiction of all civil actions

30

arising under the Constitution, laws, or treaties of the United States.” Because the APA is a law, the court in Chocallo took jurisdiction over the case. We are aware of no provision in Title 5 which gives the Board concurrent jurisdiction with federal district courts to adjudicate claims of agency interference with an ALJ’s qualified judicial independence.

93 M.S.P.R. at 492, n.*. Accordingly, there can be no expectation that Appellants

can bring their case to OSC where OSC is statutorily restricted to bringing cases

only before the MSPB and the MSPB has unambiguously and affirmatively stated

that it lacks subject matter jurisdiction of claims of agency interference with judicial

independence.

CONCLUSION

Based on the foregoing, the Court below erred in dismissing this case for lack

of subject matter jurisdiction. The unlawfully imposed Quota is not a working

condition, but rather a directive to decide cases in a certain way, and as such, the

Appellants’ claims should not be precluded under the CSRA. Because judicial

independence is a fundamental principle of the APA, the Agency’s intentional

unlawful interference with this mandate is a severe threat to procedural due

process which must be invalidated under APA. Moreover, because the CSRA only

applies to limited personnel actions resulting from very few improper motivations,

the Office of Special Counsel lacks authority to address the instant APA claims

raised. Therefore, the District Court Order should be reversed and the matter be

remanded for further proceedings.

31

Respectfully submitted,

/s/ Robert G. Stropp, Jr. Robert H. Stropp, Jr. MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C. 1920 L Street, NW, Suite 400 Washington, D.C. 20036 (202) 783-0010

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby certifies that

this brief complies with the type-volume limitation of Fed. App. P. 32(a)(7)(B)(i).

1. Exclusive of the exempted portions of the brief, as provided in Fed. R.

App. P. 32(a)(7)(B), the brief contains 8,775 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2007 in 12 point Century Schoolbook type and complies

with the typeface requirements of Fed. R. App. P. 32(a)(5)(A) and

Circuit Rule 32(b).

3. As permitted by Fed. R. App. P. 32(a)(7)(C), the undersigned has relied

upon the word count feature of Microsoft Word 2007 in preparing this

certificate.

Dated June 9, 2014.


CERTIFICATE OF FILING AND SERVICE

I hereby certify that on June 9, 2014, I electronically filed the foregoing with

the Clerk of Court for the United States Court of Appeals for the Seventh Circuit by

using the CM/ECF system. I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the CM/ECF system on the

following:

Marsha Edney Melissa N. Patterson DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW, Room 7230 Washington, DC 20530 (202) 514-1201 Craig A. Oswald OFFICE OF THE U.S. ATTORNEY 219 South Dearborn Street Chicago, Illinois 60604 Counsel for Appellee Dated June 9, 2014.


STATEMENT OF COMPLIANCE WITH CIRCUIT RULE 30(D) All materials required by Cir. R. 30(a) & (b) are included in the Appendix of

Appellants.

/s/ Robert H. Stropp, Jr. Robert H. Stropp, Jr. MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C. 1920 L Street, NW, Suite 400 Washington, D.C. 20036 (202) 783-0010 Counsel for Appellants

REQUIRED SHORT APPENDIX

Ai

APPENDIXTABLE OF CONTENTS

Appendix Page

Memorandum Opinion and Order ofThe Honorable Sharon Johnson Coleman

filed February 26, 2014 (Docket No. 31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1

Complaint filed April 18, 2013 (Docket No. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A7

IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ASSOCIATION OF ADMINISTRATIVE )LAW JUDGES, JUDICIAL COUNCIL )NO. 1, IFPTE, AFL-CIO & CLC; )CYNTHIA M. BRETTHAUER; ROBIN )HENRIE; and GILBERT MARTINEZ, )

)Plaintiffs, )

) No. 13-cv-2925v. )

) Judge Sharon Johnson ColemanCAROLYN W. COLVIN, )Commissioner of Social Security, )

)Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiffs, members of the Association of Administrative Law Judges et al (collectively

“ALJs”), filed a complaint challenging a Benchmarks and Directive issued by the Social

Security Administration (“Agency” or “SSA”) imposing an agency-wide requirement that SSA

administrative law judges decide 500 – 700 cases per year. The ALJs allege that SSA has

imposed an illegal quota infringing on the ALJ’s right to decisional independence under the

Administrative Procedures Act (“APA”). Defendant, Carolyn Colvin, Commissioner of the SSA,

moves to dismiss pursuant to Rule 12(b)(1) arguing that this Court lacks subject matter

jurisdiction because the Civil Service Reform Act (“CSRA”) precludes jurisdiction and, even if

this Court had jurisdiction the plaintiffs lack standing. For the reasons stated herein the Court

grants the motion.

Background

Plaintiffs challenge a violation of their rights under the Administrative Procedure Act

(“APA”) to “freedom from agency interference, and specifically, their right to decisional

1

Case: 1:13-cv-02925 Document #: 31 Filed: 02/26/14 Page 1 of 6 PageID #:312

A1

independence.” The Agency adopted a series of “Benchmarks” requiring the completion of

certain ALJ controlled stages of the disability hearing process within a specified number of

calendar days. The Agency also issued a Directive, requiring all ALJS “to issue 500-700 legally

sufficient decisions each year.”

Plaintiffs allege infringement of their statutory decisional independence, interference

with their oath of office and duties, constructive reduction in salary, an adverse effect on career

advancements, and damage to their professional reputations because of the Benchmarks and

Directive. Plaintiffs are seeking a declaration that the Benchmarks and Directive constitute an

illegal performance and for this Court to enjoin the Agency from imposing a quota now or in the

future.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a court must dismiss any action for

which it lacks subject matter jurisdiction. “On a motion to dismiss for lack of subject matter

jurisdiction, the court is not bound to accept the truth of the allegations in the complaint, but may

look beyond the complaint and the pleadings to evidence that calls the court’s jurisdiction into

doubt.” Bastien v. AT & T Wireless Servs., Inc., 205 F.3d 983, 990 (7th Cir. 2000). The party

asserting jurisdiction has the burden of establishing it under Rule 12(b)(1). United Phosphorus,

Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003).

Discussion

Defendant moves to dismiss the ALJs’ complaint arguing that the Court does not have

jurisdiction under the APA. Alternatively, if the Court determines it does have jurisdiction over

plaintiffs’ claims under the APA, the defendant argues that the case should still be dismissed

because the plaintiffs lack standing.

2


A2

The APA allows judicial review of a “final agency action” for which there is no other

adequate remedy or an agency action that is made reviewable by statute. 5 U.S.C. § 704. Before

finding that judicial review is available, the court must confirm that such review does not fall

within either of the APA’s two exceptions: (1) where a statute expressly precludes judicial

review; or (2) where agency action is committed to agency discretion by law. 5 U.S.C. § 701.

Defendant argues that the remedial scheme set forth by the Civil Service Reform Act (“CSRA”)

expressly precludes judicial review in this case by this Court.

The CSRA protects the rights of all federal employees, including ALJs, to be free from

“prohibited personnel practices” taken against them. 5 U.S.C. §2302. The statute states that “a

significant change in working conditions” is a “personnel action” and describes prohibitions in

regards to the personnel actions. 5 U.S.C. 2302(a)(2)(A); See also § 2302(b) (prohibiting

personnel actions that arise from improper motives and reasons such as discrimination,

nepotism, or retaliation). The statute details a variety of causes of actions, protections, remedies,

and the availability of administrative and judicial review when an employee’s rights are violated.

Grosdidier v. Chairman, Broad. Bd. Of Gov., 560 F. 3d 495, 497 (D.C. Cir. 2009). The Supreme

Court referred to the CSRA as a “comprehensive system for reviewing personnel action taken

against federal employees.” United States v. Fausto, 484 U.S. 439, 455 (2012). When Congress

created the CSRA they wanted to replace the disorganized and unsystematic arrangements in

place for administrative and judicial review. They therefore designed the statute to balance the

legitimate interests of the numerous categories of federal employees with the needs of complete

and efficient administration. Id. at 44-45. Federal employees are not to circumvent the CSRA’s

requirements by resorting to the catchall APA when challenging agency employment actions.

Grosdidier, 560 F.3d at 497. By creating the CSRA, Congress removed the jurisdiction of

3


A3

federal district courts over personnel actions arising out of federal employment. Paige v.

Cisneros, 91 F.3d 40, 43 (7th Cir. 1996).

This case is comparable to Mahoney v. Donovan where ALJ Mahoney brought an action

under the APA for violation of his decisional independence. 721 F.3d 633, 634 (D.C. Cir. 2013).

Mahoney argued his claims were not “personnel actions” and thus were not covered by the

CSRA. Mahoney complained, among other things, that his supervisor failed to assign him cases

in a rotating manner and instead assigned cases based on political considerations. Id. The court

rejected this argument and found that Mahoney’s complaint concerning the selective assignment

of cases to be a “working condition” which therefore fell under “personnel actions” within the

CSRA. Id. at 636.

Similarly here, the ALJs assert that they are not bringing their claims under the CSRA,

but that defendant violated the APA by interfering with their decisional independence. Although

presented as interference with decisional independence a review of the complaint shows that the

ALJs’ allegations are actually challenging working conditions and duties. For example, plaintiffs

allege that the quota impedes their ability to render carefully reasoned decisions and forces them

to take shortcuts through the hearing process. They also allege interference with their statutory

and regulatory duties because of the Benchmarks and Directive. Plaintiffs contend that the

Agency aggressively enforces the quota with formal disciplinary action and reprimands, as well

as less formal discipline such as counseling, threats, and intimidation. They claim that ALJs who

fail to meet the quota have had staff and resources withheld, and have had their requests for

leave delayed or refused. Rather than indicating that the Agency is interfering with decisional

independence, the allegations show that a change in working conditions resulted from the

Benchmarks and Directive. The allegations in the complaint also show the changes in working

4


A4

conditions predominantly originated after disciplinary actions and the threat of disciplinary

actions. It appears to this Court that the ALJs’ claims stem not from decisional interference by

the Agency, but from a change in working conditions that resulted from the Agency demanding

the ALJs meet certain benchmarks. Thus, their claims fall squarely within the CSRA’s coverage.

Defendant also argues that plaintiffs must exhaust their administrative remedies as

required by Chapter 71 of the CSRA, known as the Federal Labor-Management Relations Act

(“FLMRA”). See 5 U.S.C. § 7103. Plaintiffs argue that since the FLMRA is only the exclusive

administrative procedure for resolving grievances under its coverage, they are still entitled to

judicial remedies. FLMRA is the exclusive administrative procedure for resolving grievances

falling under its coverage. 5 U.S.C. § 7103 (explaining a “grievance” within the statute includes

“any complaint by any employee, labor organization, or agency concerning any claimed

violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions

of employment”). Therefore, the FLMRA does not preclude the possibility of judicial remedies.1

See Filebark v. United States DOT, 555 F.3d 1009, 1012 (D.C. Cir. 2009). Even if the FLMRA

alone does not have a preclusive effect, it does not confer jurisdiction nor does it create a cause

of action for the ALJs to bring their complaint in federal court. Whitman v. Department of

Transportation, 547 U.S. 512, 513 (2006).

Here, plaintiffs claim they are asserting their claim under the APA, not the CSRA, and

therefore the may seek judicial relief and need not exhaust their administrative remedies under

the FLMRA. However, this Court has already found that the quota of which plaintiffs complain

constitutes a change in working conditions subject to the CSRA.

Under Chapter 75, the CRSA covers actions against ALJs specifically in respect to removal, suspension, a1

reduction in grade, a reduction in pay, and a furlough of 30 days or less. 5 U.S.C. § 7521. However this chapter does

not apply in this case.

5


A5

Plaintiffs argue that since they are not seeking relief for specific adverse personnel

actions taken against them individually, but against agency-wide action affecting hundreds of

ALJs, the CSRA does not apply. Yet, the CSRA applies to system-wide challenges of agency

policy the same way it does to an individual challenge. Nyunt v. Chariman, Braod. Bd. Of

Govenors, 589 F.3d 445, 448-449 (D.C. Cir. 2009).

Plaintiffs also argue the CSRA is not applicable because their claim cannot be redressed

under the statute by the U.S. Office of Special Counsel (“OSC”). This argument fails. The CSRA

is also the exclusive means of redressing employment disputes even when, as the ALJs allege

here, the statute provides no relief. See Elgin v. Department of Treasury, 132 S. Ct. 2126, 2133

(2012) (disagreeing with the petitioners’ argument that the CSRA provided no meaningful

review of their claim because the MSPB lacked authority to declare a federal statute

unconstitutional). However, the OSC does in fact have the power to investigate the ALJs

concerns about the alleged quota because it is authorized to investigate a change in working

conditions motivated by improper reasons. 5 U.S.C. §1214. Accordingly, this Court finds that

the ALJs claim falls squarely within the CSRA and this Court lacks subject matter jurisdiction to

review the matter.

Because this Court finds it lacks subject matter jurisdiction, it need not address whether

the plaintiffs have standing to assert the claims. Based on the foregoing, defendant’s Motion to

Dismiss [13] is granted.

IT IS SO ORDERED.

Date: February 26, 2014 Entered: _______________________________ United States District Judge

6


A6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ASSOCIATION OF ADMINISTRATIVE ) LAW JUDGES, JUDICIAL COUNCIL ) NO. 1, IFPTE, AFL-CIO & CLC; ) CYNTHIA M. BRETTHAUER; ) ROBIN L. HENRIE; and GILBERT A. ) MARTINEZ; ) ) Plaintiffs, ) v. ) No. ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER SOCIAL SECURITY ) ADMINISTRATION; ) ) Defendant. )

COMPLAINT Plaintiffs Association of Administrative Law Judges, Judicial Council No. 1, IFPTE,

AFL-CIO & CLC; Cynthia M. Bretthauer; Robin L. Henrie; and Gilbert A. Martinez, for their

Complaint against Carolyn W. Colvin, Acting Commissioner Social Security Administration,

state as follows:

INTRODUCTION AND OVERVIEW OF CLAIMS

1. The review and adjudication of disability claims by the Social Security

Administration (“SSA” or “Agency”) is a system in crisis. The United States Supreme Court has

recognized that the SSA disability hearing system is “probably the largest adjudicative agency in

the world.” Approximately 3.3 million disability claims are filed each year, a 57% increase since

1990. Over the last five years, SSA disability workloads have grown significantly due to, among

other factors, an aging Baby Boomer population reaching their disability-prone years and the

Great Recession of 2008 with its lingering high unemployment. Congress has responded to these


A7

2

demographics by making matters worse. As the most recent SSA Commissioner finally

conceded on his departure in February 2013, the SSA has simply not gotten the necessary

resources from Congress to address this rising number of disability claims. The chronic lack of

resources has had a multiplier effect on the time required to resolve claims, with disability

claimants being forced to wait a year or longer for their claims to be decided.

2. This lawsuit is about SSA administrative law judges (“ALJs”), who hear appeals

from disability claims denied at the state level. For years, the ALJs have been scapegoated by

SSA senior management for delays in the hearing process. Instead of attacking the underlying

reality of the delays – more claims and failure to allocate adequate resources – the SSA has

imposed an illegal production quota on the ALJs, requiring them to decide 500-700 cases a year,

a number so unreasonable that one United States Magistrate Judge calls it “unconscionable.”

The SSA admits the quota was not set pursuant to any documented methodology. As such, it is

an arbitrary and unlawful performance evaluation. In fact, the quota is wholly unrelated to the

complexity of the mix of cases assigned to any individual ALJ. Instead, it is derived from

commitments made by SSA senior management to the Office of Management and Budget to

deliver a minimum number of fiscal year “budgeted dispositions” in exchange for fiscal year

funding at a given level and reflects fiscal, political, and other pressures unrelated to actual ALJ

decision-making, in violation of the Administrative Procedure Act.

3. The quota infringes on the statutorily-guaranteed right of the ALJs to decisional

independence, and has resulted in disparities in allowance rates among ALJs that academics and

commentators agree is “alarming.” For some ALJs, because awarding benefits is easier and less

time-intensive, the quota tends to dictate the outcome of cases in favor of the claimant, to the


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3

detriment of the Social Security Trust Fund, taxpayers and the public fisc. For other ALJs, being

rushed to judgment by the quota impedes their ability to render carefully-reasoned, impartial

decisions based on a fully developed factual record. One federal appeals court noted in 2011 that

a study had found that more than half of all ALJ decisions were reversed or remanded by the

district court. Finally, the quota has required ALJs to cut corners in the hearing process, thereby

violating the procedural due process rights of the disability claimants guaranteed by the United

States Constitution. This lawsuit seeks declaratory and injunctive relief barring the SSA from

enforcing the current decisional quota of 500-700 decisions per year, and from utilizing any

other production quota.

PARTIES

Plaintiffs

4. The Association of Administrative Law Judges, Judicial Council No. 1, IFPTE,

AFL-CIO & CLC (“AALJ”) is affiliated with the International Federation of Professional and

Technical Engineers (“IFPTE”), AFL-CIO, and is the exclusive bargaining representative of over

1,200 non-supervisory federal ALJs who adjudicate cases involving the Agency. The AALJ is a

non-profit corporation under the District of Columbia Business Organization Code. Any ALJ

appointed pursuant to the statutory provisions of 5 U.S.C. §3105 and employed by the federal

government as an ALJ in a bargaining unit represented by the AALJ is eligible for membership

in the AALJ. The AALJ also grants associate membership to ALJs not in bargaining units

represented by AALJ. The ALJs represented by the AALJ maintain offices and adjudicate cases

throughout the United States, and several ALJs maintain offices and adjudicate cases in this

judicial district.


A9

4

5. The purposes of the AALJ are to preserve, promote, and improve (a) the

guarantees and protections provided by the United States Constitution, the Social Security Act,

the Administrative Procedure Act, and all other federal laws; (b) the working conditions of ALJs;

(c) the professionalism and competence of ALJs by insuring opportunities for continuing

professional education and training; and (d) the rights of its members through collective

bargaining and all other lawful concerted activities.

6. Judge Cynthia M. Bretthauer is an individual residing in Northbrook, Illinois.

She is an administrative law judge in the Evanston, Illinois Hearing Office. Judge Bretthauer has

been an ALJ with the SSA for fifteen years, and served as the Hearing Office Chief

Administrative Law Judge (“HOCALJ”) for the Evanston Hearing Office from 2001 until 2005.

7. Judge Robin L. Henrie is an individual residing in Bountiful, Utah. He is an

administrative law judge in the Salt Lake City, Utah Hearing Office. Judge Henrie has been an

ALJ with the SSA for twenty-two years.

8. Judge Gilbert A. Martinez is an individual residing in Salt Lake City, Utah. He is

an administrative law judge in the Salt Lake City, Utah Hearing Office. Judge Martinez has been

an ALJ with the SSA for twenty-four years, and served as HOCALJ for the Salt Lake City

Hearing Office from 1993 until 1997.

9. Judges Bretthauer, Henrie, and Martinez are referred to collectively as the

“Individual Plaintiffs.”

Defendant

10. Carolyn W. Colvin is the Acting Commissioner Social Security Administration.


A10

5

JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction herein pursuant to 28 U.S.C. §1331, the

Administrative Procedure Act (“APA”), 5 U.S.C. §§701 et seq., and the Declaratory Judgment

Act, 28 U.S.C. §2201.

12. Venue is proper in this district under 28 U.S.C. §1391(e) and 5 U.S.C. §703

because, among other things, one or more of the plaintiffs resides in this district and the Agency

maintains hearing and administrative offices in the district.

FACTS

13. The Agency was created by Congress in 1935 to administer America’s social

security programs, and provide benefits to qualified retired and disabled workers and their

dependents, and to survivors of insured workers. Social Security benefits are essential to the

economic well-being of tens of millions of Americans. This Complaint involves the formal

adjudication of claims by ALJs for benefits under the Old Age, Survivors, and Disability

Insurance (“OASDI”) programs under Title II of the Social Security Act (“Act”) and the

Supplemental Security Income (“SSI”) program under Title XVI of the Act.

14. OASDI pays benefits to claimants with disabilities (and to certain members of

their families) if they are “insured,” meaning that they worked long enough and paid Social

Security taxes. SSI pays benefits to disability claimants based on financial need. When an

individual applies for either program, the SSA collects medical and other information to

determine whether the individual meets the SSA definition of disability. Under the Act,

disability is defined as the inability to do any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death


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or which has lasted or can be expected to last for a continuous period of not less than 12 months.

To meet this definition, a claimant must have a severe impairment(s) that precludes performance

of past relevant work or any other substantial gainful work that exists in significant numbers in

the national economy. 20 CFR §§404.1505, 416.905.

15. ALJs perform a critical function, ruling each year on hundreds of thousands of

disability claims brought under the Act. Each disability claim granted is estimated to cost

$300,000 in lifetime benefits. In fiscal year 2011, the Agency paid $128 billion in OASDI

benefits, $52.4 billion in SSI benefits, and over $1 billion in attorneys’ fees to disability

claimants’ representatives. ALJs adjudicate claims pursuant to the requirements of the Act and

the APA. Approximately 1,500 ALJs are currently employed by the SSA.

The SSA Disability Claim Hearing Process

16. A claimant for disability benefits must first file a claim in an SSA district office.

The claim is then forwarded to the state’s Disability Determination Service (“DDS”), which

makes an initial disability determination using federal guidelines.

17. If benefits are denied, a claimant (in most states) may seek reconsideration of the

denial. The claimant will be assigned a new adjudicator and may introduce new or additional

evidence in support of the claim.

18. A claimant denied benefits after reconsideration may seek a hearing before an

SSA ALJ. See 42 U.S.C. §§423, 1381a. The SSA Office of Disability Adjudication and Review

(“ODAR”) is responsible for holding these hearings and issuing decisions based on the law.

There are two components to ODAR – the Office of the Chief Administrative Law Judge

(“OCALJ”) and the Office of Appellate Operations.


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19. The OCALJ directs a nationwide field organization comprised of ten regional

offices, 169 hearing offices, five national hearing centers, and one national case assistance

center. Each regional office has a chief administrative law judge (“RCALJ”). Each Hearing

Office also has a chief administrative law judge (“HOCALJ”).

20. The ALJ conducts a de novo in-person hearing at which the disability claimant

may introduce evidence in addition to that presented at the DDS stage. The hearings must

protect the procedural due process rights of the claimants, conform to the requirements of the

Administrative Procedure Act, 5 U.S.C. §550 et seq., and follow the sequential evaluation

methodology required by the Act, its implementing regulations, and Social Security Rulings. 42

U.S.C. §405(b); 20 CFR §§404.1501 et seq., 416.901 et seq.

21. If benefits are denied by the ALJ after the de novo hearing, a disability claimant

may seek review by the SSA Appeals Council, a part of ODAR’s Office of Appellate

Operations. If the denial of benefits is upheld by the Appeals Council, the claimant may appeal

to the United States District Court.

Duties and Obligations of ALJs

22. An ALJ is required by the Act and case law to wear “three hats,” i.e. (1) the ALJ

must preside at the hearing as a fair and impartial judge and decision-maker; (2) the ALJ must

protect the Social Security Trust Fund and taxpayers by denying unfounded claims; and (3) the

ALJ must scrupulously protect the interests of the claimant in receiving a full and fair due

process hearing, even if the claimant has legal representation.

23. Unlike a district court judge, an ALJ plays an active role in both the fact-

gathering and fact-finding processes. SSA hearings are intended to be “inquisitorial” rather than


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“adversarial.” It is the responsibility of the ALJ to ensure that the factual record is fully

developed. The ALJ gathers evidence and calls medical and vocational experts, as needed. The

Agency is not represented at the hearing.

24. The Agency position description for ALJs, as approved by the U.S. Office of

Personnel Management, specifies the numerous tasks an ALJ must undertake to conduct hearings

in compliance with the Act and the APA:

“(1) dismiss or allow requests for hearings and rule on requests for extensions; (2) identify problems and issues to be resolved; (3) analyze all previously developed evidence and appraise previous licensing, regulatory, and adjudicative processes by the administrative agency; (4) determine whether there are other parties with adverse interest to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas; (6) correlate and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold prehearing conferences with the appellant and/or his counsel and the government representative; (9) make all evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with a material point or issue; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the entire course of the proceedings; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) appraise the credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimants or government representatives; (17) make findings of fact on each issue, giving the reasons therefore and render conclusions of law as sole Trier [sic] of fact and law; (18) fully consider all the evidence of record and issue decisions within the requirements of the Administrative Procedure Act, which decisions are completely independent and final, signed only by him [sic], and published to parties in interest without prior review; and (19) entertain petitions for attorneys fees and issue orders designating the amount of fee permitted.”


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Form SSA-801, Position Description No. 66622, Administrative Law Judge, Non-Supervisory,

AL-935. (Exhibit A hereto.)

25. In the course of disposing of a case, ALJs are obligated, among other things, to:

(1) review and decide requests to change the time or place of the hearing, 20 CFR §404.936; (2)

rule on objections to the notice of issues to be decided at the hearing, 20 CFR §404.939; (3)

“look fully into the issues,” question witnesses and accept documents into evidence, 20 CFR

§404.944; (4) issue subpoenas if necessary for the full presentation of a case, 20 CFR §404.951;

(5) issue a written decision that includes findings of fact and reasons for the decision, 20 CFR

§404.953; (6) develop a complete medical history of the claimant for at least the preceding 12

months, and provide evidence at the hearing about the existence of work available for the

claimant, 20 CFR §404.1512; (7) consider all the evidence in the record, 20 CFR §404.1520; and

(8) obtain additional evidence, if necessary, 20 CFR §404.1520b.

ALJ Decisional Independence

26. In enacting the APA, Congress created a special category of quasi-judicial

independent decision-makers who are directly vested, at the time of their appointment to the

position, with all powers necessary to hold hearings and issue decisions comporting with due

process of law, free from agency interference or control. An ALJ’s powers arise from the APA,

5 U.S.C. §556(c)(1)-(10), and its implementing regulations, 5 C.F.R. §§930.201 et seq., without

the necessity of express SSA delegation, and the SSA is without authority to withhold such

powers from its ALJs. Atty. General Manual on the APA at 74 (1947).

27. The Congressional enumeration of the powers of ALJs in 5 U.S.C. §556(c) “is

designed to secure that responsibility and status which the Attorney General’s Committee


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stressed as essential.” Sen. Doc. No. 248, 79th Cong., 2nd Sess., 29 (1946). The direct investiture

of enumerated powers by Congress to ALJs under 5 U.S.C. §556(c), coupled with the Attorney

General’s strong statement in the Manual on the APA that agencies lack the power to withhold

§556(c) powers from its ALJs, is the genesis of the concept of ALJ decisional independence.

28. The SSA Position Description for the ALJ position makes clear that an ALJ “has

full responsibility and authority to hold hearings and issue decisions” and that an ALJ’s

adjudicatory powers and duties shall be carried out “in conformity with the Administrative

Procedure Act, and with full and complete individual independence of action and decision.”

29. ALJs enjoy decisional independence under the Act, the APA, and established

judicial precedent. The United States Supreme Court in Ramspeck v. Federal Trial Examiners

Conference, 345 U.S. 128, 131-32 (1953), recognized long ago that Congress intended hearing

examiners (now referred to as ALJs) to be a “special class of semi-independent subordinate

hearing officers” entitled to “independence and tenure.” Twenty-five years later, it underscored

the importance of ALJ independence in Butz v. Economou:

“[T]here can be little doubt that the role of the modern federal hearing examiner or administrative law judge ... is ‘functionally comparable’ to that of a judge ... the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by either the parties or other officials within the agency.”

438 U.S. 478, 513-514 (1978).

30. The hallmark of decisional independence is the freedom to conduct a fair hearing

based on a fully developed factual record and the law, impartially, without interference by the

parties, SSA management, and political or other pressures.


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31. The APA and its implementing regulations guarantee decisional independence in

a number of ways. For example, an ALJ may not consult any person or party – including agency

officials – concerning facts at issue in the proceeding, except with notice and opportunity for all

parties to participate. 5 U.S.C. §554(d)(1). When conducting a hearing, an ALJ is not

responsible for or subject to the supervision or direction of agency employees. 5 U.S.C.

§554(d)(2). ALJs may not be assigned to “perform duties inconsistent with their duties and

responsibilities as administrative law judges.” 5 U.S.C. §3105. Cases are assigned to ALJs on a

rotational basis, as far as practicable. Id. An agency is prohibited from interfering with ALJ

performance in the writing of opinions and conducting hearings. Id.

32. While ALJs are SSA employees, they may be removed from their position only

upon a showing of good cause and after a hearing before the Merit Systems Protection Board

(“MSPB”). 5 U.S.C. §7521; 5 C.F.R. §930.211(a). The Office of Personnel Management

(“OPM”) controls compensation for ALJs. 5 U.S.C. §5372.

33. No agency, including the SSA, may evaluate the performance of an ALJ. 5

C.F.R. §930.206. Congress has recognized that “agencies are not, at any time, permitted to

appraise ALJ performance.” Joint Report of Comm. on Government Affairs and Comm. on the

Judiciary, Reform of Federal Regulation, S. Rep. No. 1018, 96th Cong., 2d Sess., pt. 2, at 69

(1980) (“S. Rep. No. 1018”).

34. Agencies have from time to time attempted to circumvent the prohibition against

performance evaluations by imposing production standards, which rank and rate ALJ

performance based on allegedly objective units of output. Production standards that operate as a

fixed quota, however, violate the prohibition against performance evaluations and infringe on


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ALJ decisional independence. See Nash v. Bowen, 869 F. 2d 675, 680 (2d Cir. 1989) (“[t]he

setting of reasonable production goals, as opposed to fixed quotas, is not in itself a violation of

the APA.”)

35. An attempt by the SSA in the 1970s to impose production standards was

challenged in Bono v. United States of America Social Security Administration, U.S.D.C. W.D.

Mo., No. 77-0819-CV-W-4. The SSA settled the Bono case and entered a Settlement Agreement

in which it agreed it “will not issue directives or memoranda setting any specific number of

dispositions by ALJs as quotas or goals.” (Exhibit B, ¶3.)

SSA Establishes an Illegal Production Quota in Violation of ALJ Decisional Independence

36. On April 18, 2007, then-Chief Administrative Law Judge (“CALJ”) Frank A.

Cristaudo announced the adoption of a series of “Benchmarks” allotting a certain number of

calendar days for designated stages in the hearing process. (Exhibit C.) Some of the

Benchmarks apply to ALJ-controlled stages of the hearing process. For example, one

Benchmark allots an ALJ seven calendar days prior to a hearing to review the case, and another

seven calendar days after a hearing to complete his/her review of the record and move it to the

next stage in the hearing process. The Benchmarks attach regardless of the complexity of the

case, the quantum of evidence, the number of cases on an ALJ’s docket, or the legal issues

involved.

37. SSA has admitted there are no validation studies supporting the Benchmarks. In

fact, the Benchmarks are arbitrary.


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38. The Benchmarks were initially referred to as “guidelines” by the SSA to avoid the

prohibition against performance evaluations, production standards, and fixed quotas. (See

Exhibit C at 1; emphasis in original.)

39. CALJ Cristaudo, on October 31, 2007, then circulated a “Dear Colleagues” letter

to all ALJs. (Exhibit D.) In the letter (the “Directive”), the SSA directed that each ALJ “manage

their docket in such a way that they will be able to issue 500-700 legally sufficient decisions a

year.” CALJ Cristaudo, in a later “Dear Colleagues” letter, has described a “legally sufficient

decision” as one “that provides findings and rationale that comply with the [Social Security] Act,

Regulations, and Rulings, and explains why the preponderance of evidence supports the

decisions and findings.” (Exhibit E.)

40. The Directive referred to the required number of dispositions as a “goal,” again

seeking to avoid the prohibition against performance evaluations, production standards, and

fixed quotas. As discussed further below, however, the SSA soon began utilizing the Directive

in conjunction with the Benchmarks and other practices as an illegal decisional quota.

41. The Directive also circumvented the SSA’s own agreement in the Bono settlement

“not [to] issue directives or memoranda setting any specific number of dispositions by ALJs as

quotas or goals.” (Exhibit B at ¶3; emphasis added). Following the Bono settlement, then-

Acting Associate Commissioner Donald A. Gonya in an internal SSA memorandum dated July

26, 1979, confirmed that the agreement not to issue directives setting a specific number of

dispositions by ALJs applied to “headquarters staff and to management officials in the regional

and hearing offices [“ODAR Managers”] as well.” (Exhibit F.)


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42. In an internal memorandum dated February 6, 2008, the SSA Inspector General

advised the SSA Commissioner that the APA required that a production goal be “reasonable.”

(Exhibit G.) The Inspector General advised further that the SSA “will need to document the

methodology used to establish” any production goal. (Exhibit G at 4.)

43. The Directive did not result from the application of any known documented

methodology. When the AALJ requested supporting documentation, it was told the SSA had no

data and had performed no studies to support the Directive.

44. The same Inspector General memorandum reflected that fewer than 45% of the

895 “fully available” ALJs had processed 500 cases in Fiscal Year 2006. (Exhibit G.) The

memorandum did not assess the reasonableness of any disposition rate or recommend any

disposition rate to the SSA Commissioner.

45. In an End of Fiscal Year Report for Fiscal Year 2008, the SSA re-characterized

the Directive not as a goal but as an “expectation [for] all ALJs.” Other subsequent SSA

communications refer to the Benchmarks and Directive as “scheduling expectations,” “minimum

Agency expectation of 500 dispositions per year,” and “dispositional expectations.”

46. The SSA has taken formal disciplinary action to enforce the Benchmarks and

Directive. Removal proceedings citing the failure of an ALJ to meet the Benchmarks and

Directive have been brought by the SSA before the MSPB. The SSA has also issued formal

reprimands based on violations of the Benchmarks and Directive. ALJs have been subjected to

less formal discipline such as “counseling,” as well as threats and intimidation.

47. CALJ Cristaudo has required ODAR Managers to explain to OCALJ why ALJs

produce fewer than 500 dispositions. Individual ALJs who have failed to meet the decisional


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quota – including one ALJ in the Springfield, Missouri Hearing Office who had achieved 490

dispositions, but was nonetheless still ten below the quota – have been required to explain why

they have failed to do so in writing to ODAR Managers. ALJs have been subjected to

“counseling” and off-the-record, performance-related actions by ODAR Managers for failing to

keep pace with the Directive or for missing Benchmarks. “Counseling” and off-the-record

actions, the purpose of which is to coerce an unlawful end such as performance evaluations or

quotas, are forms of discipline, and have been a first step to more formal SSA disciplinary

action.

48. With regard to SSA threats and intimidation, on November 10, 2008, the SSA

proposed new rules allowing SSA management to take away from “those ALJs who are not

processing a sufficient number of cases” the right to schedule their own hearings. (Exhibit H.)

The Notice of Proposed Rulemaking confirmed that “ALJs will need to process at least 500 cases

per year.”

49. CALJ Cristaudo participated in a phone call on March 18, 2009, with the National

Executive Committee of Plaintiff AALJ to discuss the Benchmarks and Directive. In an attempt

to deflect AALJ concerns, Cristaudo said he would consider issuing a written message to ODAR

Managers advising that the Directive was not a quota. If such a written message was ever issued

by Cristaudo, it has never been disclosed.

50. On October 30, 2009, an ALJ in the Charleston, West Virginia Hearing Office

was “informally counseled” for closing only 495 cases in Fiscal Year 2009, just five cases below

the decisional quota. SSA retaliation against ALJs who fail to meet the Directive by a mere five

or ten cases confirms it is a fixed quota.


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51. ODAR Managers carefully monitor ALJ dispositions, and since at least 2009, as a

form of discipline, periodically publicize within Hearing Offices the names of individual ALJs

whose production is not on pace to meet the Directive. The targeted ALJs are required to explain

why they are not on pace, to describe steps being taken to “ensure achievement” of the Directive,

and to project the number of fiscal year dispositions they intend to issue. One ODAR Manager

has cautioned that responses to such inquiries of “[m]ore than a paragraph would not be a good

use of your time or mine,” confirming that the inquiries are designed more to harass and

intimidate than to engage in a substantive, collegial dialogue.

52. ODAR Managers have refused to take vacation and earned leave time into

consideration when monitoring the scheduling of hearings by ALJs and number of dispositions,

and have refused to accommodate ALJs suffering from serious medical conditions, including

cancer, again reflecting the true nature of the Benchmarks and Directive as a fixed production

quota.

53. The Agency has also disciplined ALJs who have failed to meet the Benchmarks

and Directive by withholding resources and staff. ODAR Managers have also delayed approval

or refused to approve requests to use earned annual leave for vacation as discipline for failing to

keep pace with the Directive.

54. When an ALJ is unexpectedly unavailable due to health or other reasons, the

remaining ALJs in the Hearing Office are assigned more cases or asked to hold more hearings so

that, in the words of the SSA, they do their “fair share” to make sure the Hearing Office meets its

assigned decisional quota.


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The Agency Intensifies Enforcement of the Quota

55. By at least Fiscal Year 2011 and likely earlier, ODAR began establishing

decisional quotas for each SSA Region, for each Hearing Office, and for each individual ALJ

within each Hearing Office. To set these fixed quotas, SSA senior management first negotiates a

nationwide “budgeted disposition” number with the Office of Management and Budget reflecting

fiscal, political, and other pressures.

56. All SSA quotas, including for the individual ALJs, are derived formulaically and

are computed based on the number of cases all ALJs must dispose of per day in order to achieve

the negotiated nationwide “budgeted disposition” number. For Fiscal Years 2011 and 2012, the

quotas were based on 2.37 dispositions per ALJ per day. Each SSA Region is then “assigned” a

decisional quota by OCALJ. The SSA Region then assigns each Hearing Office a quota derived

by dividing the quota for the Region by the number of ALJs in the Region. Finally, each

individual ALJ is “assigned” a quota by his/her Hearing Office derived, again, by dividing the

Hearing Office quota by the number of ALJs in the Hearing Office.

57. For example, in Fiscal Year 2011, the Eugene, Oregon Hearing Office was

assigned a decisional quota of 3,920 ALJ dispositions, and each individual ALJ (with more than

one year of experience) was assigned a quota of 585 dispositions. OCALJ “assigned” 6,430 ALJ

dispositions to the Manhattan Hearing Office in Fiscal Year 2012. The quota for each ALJ in the

Seattle Hearing Office in Fiscal Year 2012 was 593 dispositions, relayed only orally.

58. One HOCALJ has expressed her understanding that the required number of

dispositions has gone up because of promises made by SSA senior management to Congress, and

that SSA pressure on ALJs is a direct result of Congressional pressure on the SSA.


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59. At a recent meeting, a HOCALJ included a written agenda item titled “On the

radar and in the crosshairs,” warning the ALJs that “[o]ur declining hearings scheduled and

dispositions have put us on [the Agency] national and regional radar.”

The Requirement of 500-700 Decisions per Year is an Unreasonable Production Goal and a De Facto Fixed Quota

60. The Benchmarks and Directive are an unreasonable production goal, the

utilization and enforcement of which renders them an illegal de facto production quota.

61. The Honorable Morton Denlow, then-Presiding Magistrate, United States District

Court for the Northern District of Illinois, commented on the Directive in 2008:

“Social Security cases are some of the most important cases on our docket in the Northern District of Illinois. I am required to read in its entirety each of the SSA records that come before me and I know you have a difficult job in writing opinions that will be upheld especially given the 7th Circuit’s requirement to build a logical bridge between evidence in the record and the conclusion. In my opinion, I don’t see how you can do 500-700 cases a year and satisfy the requirements of Due Process and the [SSA and APA] regulations.”

62. Despite the SSA Inspector General’s warning that the SSA must document the

methodology used to establish any production goal (Exhibit G at 4), the decisional quota of 500-

700 decisions per year was not set pursuant to any documented methodology.

63. Instead, the quota is based on a nationwide “budgeted disposition” number

negotiated by SSA senior management and the Office of Management and Budget. Because that

number reflects fiscal, political, and other pressures wholly unrelated to the substance, merits,

and circumstances of claims actually pending or the individual ALJs, it is arbitrary. One ODAR

Manager has admitted that the quota is a direct result of Congressional pressure on the SSA.

64. The MSPB in SSA v. Goodman, 19 M.S.P.R 321 (1984), held that the SSA could

not address the productivity of an individual ALJ “in the absence of evidence demonstrating the


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validity of using [the SSA’s] statistics to measure comparative productivity.” In Goodman, the

SSA at least attempted to measure comparative productivity between ALJs, though it lacked the

statistical foundation to do so. The decisional quota set out in the Directive, however, is entirely

unrelated to any statistical or other analysis of actual SSA claims or historical ALJ dispositions,

and is instead “forced” based on outside fiscal, political and other pressures.

65. The Benchmarks and Directive assume each disability claim and every ALJ is

fungible, the same arbitrary assumption that underlies all quotas.

66. Non-supervisory ALJs work without a dedicated support staff and have no

clerical workers, paralegals, or attorneys who report to them or work under their direct

supervision. The Benchmarks and Directive wrongly assume every ALJ has the same access to

competent staff and resources.

67. SSA procedure mandates that after the ALJ makes his/her ruling, most decisions

are drafted by non-ALJ staff writers (attorneys and paralegals) based on instructions from the

ALJ. SSA allots a staff writer four hours to write a decision awarding benefits, and eight hours

to write a decision denying benefits. Federal courts spend an average of 4.6 hours to adjudicate

an appeal from an ALJ decision. Current CALJ Debra Bice has advised that it should take an

ALJ no more than two-and-a-half hours, on average, to adjudicate a case. CALJ Bice’s position,

reflected in the quotas set by the SSA, is that the ALJ responsible for fact-gathering, fact-finding,

and ruling on each claim should spend less time per claim than the persons involved in writing

and reviewing the ALJ’s decision.

68. The practical effect of requiring ALJs to dispose of 500-700 cases per year is

underscored by the so-called “Cleveland Plan.” Among other things, the “Cleveland Plan”


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instructed ALJs and decision writers “not [to] produce a mere chronology of facts in the final

decision unless it is necessary,” to “[t]ouch the file as few times as possible,” to include in the

decision “just enough, but no more” evidence to support the outcome, and also advised that

“Congressional Interest cases are ‘Red Alert’ priorities.” These instructions requiring ALJs to

attempt to walk a fine line between factually supported and legally sound decisions, and

assembly-line justice more concerned with quantity than quality, demonstrate that the quota is

unreasonable and infringes on ALJ decisional independence.

69. The Honorable Jillyn Schulze, United States Magistrate Judge for the District of

Maryland, remarked in May 2009 on the decisional quota of 500-700 decisions per year in no

uncertain terms:

“I am truly stunned by the suggestion that ALJs should decide 500-700 cases a year. I find that unconscionable. ... I can do maybe one of these cases a day – and that’s a review where I’ve got two lawyers who are telling me exactly what I need to be looking at to be making the decision. So to be required to do 500 to 700 of these a year without anybody telling you what it is that you you’re supposed to be looking at and having this universe that’s this high of potential things that you’re later going to be criticized about for not looking at, it just makes no sense whatsoever to me.”

70. The pressure exerted on ALJs by the quota is reflected in the substance of their

rulings. Some ALJs respond by tending to grant more claims. For other ALJs, the quota

impedes their ability to render carefully-reasoned, impartial decisions based on a fully developed

factual record. Whatever the result of the pressure on an individual ALJ, the outcomes for the

entire body of SSA claims are more variable and arbitrary when the factual record is not fully

developed and ALJs are pressured to rush to judgment based on incomplete information.

71. The quota of 500-700 decisions per year is what is referred to in academic

management literature as a “stretch goal.” A “stretch goal” is defined as “an organizational goal


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with an objective probability of attainment that may be unknown but is seemingly impossible

given current capabilities.” “The Paradox of Stretch Goals: Organizations in Pursuit of the

Seemingly Impossible,” Academy of Management Review, Vol. 36, No. 3, 544, 547 (2011).

Stretch goals may lead to deleterious consequences, including: narrowed focus and neglect of

non-goal areas, increased risk taking, unethical behavior, inhibited learning, corrosion of

organizational culture, decreased cooperation, and decreased intrinsic motivation. Lisa D.

Ordonez, et al., “Goals Gone Wild: The Systematic Side Effects of Overprescribing Goal

Setting,” Academy of Management Perspectives Exchange, Feb. 2009 at 7.

The Illegal Quota Injures ALJs by Infringing on Their Decisional Independence

72. The SSA itself recognizes that it takes less time to issue a favorable decision than

a decision denying benefits. By allotting a staff writer four hours to write a decision awarding

benefits and eight hours for a decision denying benefits, the SSA concedes that an ALJ will best

be able to meet the quota by issuing favorable decisions. As a Court reasoned almost thirty years

ago when striking down another SSA program:

“The evidence as a whole, persuasively demonstrated that defendants retained an unjustified preoccupation with allowance rates, to the extent ALJs could reasonably feel pressure to issue fewer allowance decisions in the name of accuracy. While there was no evidence that an ALJ consciously succumbed to such pressure, in close cases ... as a matter of common sense, that pressure may have intruded on the fact finding process and may have influenced some outcomes.”

AALJ v. Heckler, 594 F. Supp. 1132, 1142 (D.D.C. 1984). The Court went on to find the SSA

“insensitiv[e] to that degree of decisional independence the APA affords to administrative law

judges” and that the program “could have tended to corrupt the ability of administrative law

judges to exercise that independence in the vital cases they decide.” Id. at 1143.


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73. In order to increase the number of dispositions, ALJs have been told that once

they find a way to award benefits in a case, they do not have to read the file any further.

74. That the quota, which is based solely on productivity, tends to dictate the outcome

of some cases in favor of the allowance of benefits is further validated by a review by the SSA

Office of Inspector General in February 2012, which found a direct relationship between ALJ

productivity and allowance rates. It noted that nine of the twelve high-allowance ALJs decided

more cases than the average of the other ALJs in the same office. In addition, of the twelve

high-denial ALJs, eight decided fewer cases than the average of their peers in the same hearing

office.

75. Thus, unrelenting SSA emphasis on meeting the quota infringes on decisional

independence of some ALJs by tending to influence them to award benefits simply because it is

quicker to award benefits than to deny them. That can be the case even though the ALJ may

genuinely believe that the quota has no substantive effect. Research confirms that otherwise

ethical persons may unwittingly act unethically when faced with stretch goals: “[B]ehavior

prompted by stretch goals is leading to unethical behavior, without the knowledge of the

protagonists of the unethical action ... focusing on goals actually distorts our perception of what

is unethical behavior so that we are less likely to consider the ethical implications of our

actions.” “When Goal Setting Goes Bad,” Harvard Business School – Working Knowledge,

2009 at 2-3. (Exhibit I.)

76. Other repercussions of the quota, characteristic of a “stretch goal,” have included

narrowed focus and neglect of non-goal areas (such as the quality of fact-gathering and

decisions), increased risk taking (see below), corrosion of organizational culture (including poor


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morale), decreased cooperation (between ODAR Managers and ALJs), and decreased intrinsic

motivation (on the part of ALJs).

77. The quota promotes risk taking in the form of shortcuts through the hearing

process. For example, ALJs have been told to set arbitrary time limits when reviewing a file

(including by using an egg timer) in order to “force” themselves to move on. As a result, ALJs

may not read all of the medical and lay evidence.

78. Some ALJs do not obtain complete medical records or additional medical

opinions because it takes too much time to marshal and review the evidence. As one ALJ has

explained to the SSA Inspector General:

“Here is the chilling factor: specifically, for over a year now, every time I considered whether to write a doctor requesting more information, whether to order a consultative medical examination, or whether to have a supplemental hearing with a Medical Expert, I tried not to think what it would cost me in terms [of] meeting the quotas. Based on web postings and conversations, I believe that other ALJs have also felt the stress of this situation: that development of a claimant’s record could result in personal consequences for the ALJ.”

(Emphasis in original.) Similarly, ALJs may not allow a case to remain open post-hearing

because they are pressured to move cases through the hearing process to comply with the

Benchmarks.

79. These and other shortcuts make it impossible for ALJs to elicit, review and

understand evidence, especially in more complex cases, including evidence the relevance of

which may only become known at the hearing. Decisional independence is compromised

because ALJs cannot prepare for and conduct hearings and decide cases in the manner they

otherwise would, consistent with their statutory and regulatory obligations.


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80. One ODAR Manager has mandated a shortcut sua sponte, eliminating the ARPR

(ALJ Review PRE) stage of the hearing process at which an ALJ reviews the record prior to the

hearing. (See Exhibit C at 2.) Instead, cases will be put directly into the RTS (Ready to

Schedule) stage, without giving the ALJ an opportunity before the hearing to evaluate the

evidence or merits of a case and to order pre-hearing development of the case, if warranted.

81. The impact of the quota on the quality of written decisions is well-recognized.

One ODAR Manager has insisted on compliance with the quota despite conceding that “Judges

who produce 350 cases per year presumably write decisions that are more thorough, more

carefully written and that more precisely describe the reason(s) for the decisions, when compared

to the decisions written by judges who produce 500 cases per year.” One HOCALJ told an ALJ

to sign a stack of decisions by the end of the day without reading them.

82. The disciplinary steps taken by SSA and ODAR Managers to enforce the

production quota make it impossible for ALJs to render carefully-reasoned, impartial decisions.

As noted in a Congressional Report considering whether to allow performance evaluations of

ALJs (which Congress did not allow): “The fear of discipline would inevitably mix into

decision-making. To those outside the agencies, ALJs would lose the appearance of

independence which is so vital to the legitimacy of agency proceedings.” S. Rep. No. 1018, at

70-71.

83. When benefits are denied, an ALJ has an obligation to clearly disclose and

adequately sustain all grounds upon which that disposition is based, SEC v. Chenery Corp., 318

U.S. 80, 94 (1943) (Congress codified the Chenery principle in the APA at 5 U.S.C. §557(c));

and Courts of Appeals enforce Chenery by requiring the ALJ to “build a logical bridge between


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the facts of the case and the outcome.” See Parker v. Astrue, 597 F. 3d 920, 921 (7th Cir. 2010).

Because of the pressure to meet the decisional quota, ALJs often do not have time to review

adequately the written draft decisions of the staff writers or to write for themselves decisions

comporting with the Chenery principle. One ODAR Manager has advised ALJs not to worry

about whether cases are remanded by the federal district or appellate courts, but instead to

concentrate on meeting the quota.

84. Not only do the Benchmarks and Directive establish an illegal fixed production

quota, their enforcement by SSA is arbitrary, compounding their unlawful impact. A very recent

audit by the SSA Office of Inspector General reviewed ODAR monitoring of ALJs. It noted that

with regard to productivity, ODAR reports used a single factor, for example, number of

dispositions. The audit, however, noted “large variances in ALJ outcomes within and between

hearing offices,” a variance that academics and commentators agree is “alarming.” The audit

concluded that a monitoring system needed to be developed using a combination of factors, and

not simply a single factor such as number of dispositions. In other words, the audit confirmed

that each disability claim and every ALJ is not fungible, as the quota assumes.

85. As a result of the decisional quota, ALJs often cannot make considered judgments

on fully developed factual records, in violation of CALJ Cristaudo’s own requirement that

decisions “provide[] findings and rationale that comply with the [Social Security] Act,

Regulations, and Rulings, and explains why the preponderance of evidence supports the

decisions and findings.” (Exhibit E.)

86. The quota is the product of fiscal, political and other pressures reflected in the

fiscal year “budgeted dispositions” commitment made by SSA senior management to the Office


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of Management and Budget. As the United States Supreme Court noted in Butz, the sine qua

non of decisional independence is freedom from exactly those types of pressures. 438 U.S. at

513-14.

87. The United States Supreme Court in Ramspeck, 345 U.S. at 142, addressing an

ALJ reduction in force, cautioned against “devious practices by an agency” that might infringe

on decisional independence. The SSA’s “devious practices” embodied in the Benchmarks and

Directive, though disguised as innocent “guidelines” and “goals,” are a performance evaluation

and de facto fixed quota that infringe on ALJ decisional independence. The quota tends to

dictate the outcome of some cases in favor of granting benefits, and in other cases results in

arbitrary and legally insufficient decisions based on an incomplete development and/or review of

the factual record.

88. While the MSPB at one time took jurisdiction over claims of infringement on

decisional independence brought by SSA ALJs on a “constructive discharge” theory, it amended

its Rules in 2006 and no longer hears such claims. See Tunik v. Merit Systems Protection Board,

407 F. 3d 1326 (Fed. Cir. 2005); 71 Fed. Reg. 34321 (June 14, 2006). Perhaps not entirely

coincidentally, the Benchmarks and Directive were issued by then-CALJ Cristaudo shortly after

the MSPB stopped hearing ALJ claims of infringement on decisional independence. ALJs now

face a Hobson’s choice either to follow ODAR orders to meet the production quota or to resist or

defy ODAR orders they understand to interfere with their decisional independence, thereby

subjecting themselves to discipline and the possible risk of losing their livelihood.


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Other Injuries Suffered by ALJs Resulting from the Quota

89. In addition to the infringement on decisional independence detailed above, the

Benchmarks and Directive injure ALJs in several other ways.

90. ALJs take an oath to, among other things, uphold the United States Constitution.

The decisional quota requires ALJs to disregard the procedural due process rights of disability

claimants in direct contravention of that oath, and results in arbitrary and incomplete decisions.

91. ODAR’s dissemination of ALJ productivity data in order to increase pressure on

ALJs and compel compliance with the quota results in public shaming, thereby harming the

reputation of ALJs among their peers within the SSA and in other agencies.

92. Because the SSA emphasizes quantity of dispositions over quality, ALJs do not

have the time to document and support their decisions adequately. Many federal judges have

been critical of the work product of ALJs, including the use of boilerplate language not

supported by the record and conclusions of law inconsistent with the medical evidence, see, e.g.,

Bjornson v. Astrue, 671 F. 3d 640 (7th Cir. 2012), thereby demeaning ALJs in the eyes of the

federal judiciary and detracting from the public’s perception of the integrity of ALJs.

93. The Benchmarks and Directive require ALJs to violate their statutory and

regulatory obligations, including, among other things, their duty to: (1) “look fully into the

issues,” question witnesses and accept documents into evidence, 20 CFR §404.944; (2) issue

subpoenas if necessary for the full presentation of a case, 20 CFR §404.951; (3) issue a written

decision that includes findings of fact and reasons for the decision, 20 CFR §404.953; (4)

develop a complete medical history of the claimant for the preceding 12 months, and provide

evidence at the hearing about the existence of work available for the claimant, 20 CFR


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§404.1512; (5) consider all the evidence in the record, 20 CFR §404.1520; and (6) obtain

additional evidence, if necessary, to complete the factual record, 20 CFR §404.1520b.

94. Many ALJs work longer hours without additional compensation in an attempt to

comply with the quota, thereby resulting in a constructive reduction of compensation. The AALJ

conducted a survey in 2012 that showed that the pressure to comply with the quota has a

significant deleterious impact on the physical and mental health of many ALJs. ALJs have

continued to work long hours despite the impact on their health.

95. The opportunity for career advancement and transfers within the SSA is adversely

affected for ALJs who fail to meet the quota.

Allegations of Individual Plaintiffs

96. Judge Bretthauer issued 369 and 335 decisions the last two fiscal years,

scheduling between 30 and 50 cases per month. She is committed to carefully reading the entire

record when adjudicating her cases and has been told she has the highest approval rating of any

ALJ in her office. Judge Bretthauer experiences immense pressure to increase dispositions to

meet the current Evanston Hearing Office quota of 570 cases per ALJ. She is incessantly

emailed by ODAR Managers regarding her disposition rate and the rates of her local, regional

and national colleagues, and has been subjected to off-the-record, performance-related

counseling by ODAR Managers who have told her to increase scheduling and the number of

dispositions.

97. Although Judge Bretthauer has worked as quickly and ethically as possible, she

continues to be harassed about her scheduling and disposition rate. Her HOCALJ told Judge

Bretthauer in 2012 that she was required to schedule 60 cases for hearing per month. As


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recently as January 2013, her HOCALJ directed Judge Bretthauer to schedule an average of 2.7

hearings per day to meet her quota. The HOCALJ followed up with an intimidating email. Even

more recently, a non-ALJ Group Supervisor told her that based on year-to-date dispositions she

was projected to issue only 291 decisions this fiscal year, and that to meet her decisional quota

she “would need to issue an average of 60 decisions each month for the rest of the fiscal year”

(emphasis added). This projection, however, was based solely on FY 2013 First Quarter

statistics, a period during which she had taken over five weeks of leave. Judge Bretthauer then

received a follow-up to this email from her Hearing Office Director about “where you need to be

to work towards achieving Regional/National goals.”

98. The quota infringes on Judge Henrie’s decisional independence. Although he has

met the quota in the recent past, because the cases have become more complex and time

consuming to decide, Judge Henrie currently produces about 450 decisions a year, works as

efficiently as possible, works after hours without compensation, and cannot produce more

decisions without violating mandatory quality standards and sacrificing his judicial integrity. He

frequently receives emails and memoranda regarding his production, and has been disciplined in

the form of face-to-face or telephone “counseling” sessions by his HOCALJ and RCALJ, who

have harassed him for scheduling and deciding fewer cases than the decisional quota mandates.

Most recently, Judge Henrie was given a written “directive” mandating that he “immediately

increase the number of cases you schedule on a monthly basis in order to achieve Agency

[decisional] expectations for the remainder of the year.” Judge Henrie was also advised that he

would be given an additional 24 cases to hear every ten days, which is far more than is


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reasonable and prudent and would overload him. Finally, he was threatened with possible

disciplinary action should he fail to follow the written “directive.”

99. Judge Henrie finds it impossible to comply with both the illegal decisional quota

and SSA and APA regulations regarding judicial standards without compromising the quality of

his decision-making and the procedural due process rights of disability claimants. His HOCALJ,

RCALJ and the decisional quota impose upon him inordinate pressure to simply award benefits

and to cut corners that should not be cut, thus infringing upon his decisional independence.

100. For each of the past five years, Judge Martinez has issued 500 decisions or more,

but has had to cut corners in order to do so, primarily by not reading the whole record or by

failing to read or revise drafts of decisions written by staff writers before signing them. The

decisional quota prevents Judge Martinez from conducting hearings that follow Agency and

APA regulations, especially with respect to ordering a second medical expert in complex cases.

Indeed, ODAR Managers have told him to refrain from ordering multiple experts for a single

case because doing so slows down the adjudicatory process. As discipline, he was also

threatened with the loss of support personnel if he did not increase the number of scheduled

hearings.

101. The quota thus directly infringes on Judge Martinez’ decisional independence.

While he is not told explicitly how to decide cases, by pressuring him to produce at an

unreasonable rate, he is at times forced to make decisions based on an incomplete record to the

detriment of the procedural due process rights of disability claimants.


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The Procedural Due Process Rights of the Disability Claimants Have Been Violated

102. When Congress passed the APA in 1946, it created a corps of hearing examiners

(today’s ALJs) conferring upon them a right of decisional independence to ensure they were free

from interference by the parties and agency officials, and from political and other pressures. In

doing so, Congress preserved the procedural due process rights of disability claimants to a fair

and impartial hearing on their claims. See 5 U.S.C. §§550 et seq., 42 U.S.C. §405(b); U.S.

CONST. amend. V.

103. The Benchmarks and Directive violate the procedural due process rights of

disability claimants. ALJs who do not review the entire file, fail to obtain complete medical

records, do not leave cases open to elicit relevant evidence, do not review decisions prior to

signing, and engage in other corner-cutting measures in attempts to comply with the quota,

deprive claimants of the full and fair hearings to which they are entitled.

104. ALJs have a special and close relationship with disability claimants whose claims

they adjudicate. They are required by law to protect the procedural due process rights of the

claimants, regardless of whether they are represented by counsel, to fully develop the factual

record regarding their claims, and to ensure a fair and impartial adjudication of their claims.

105. Disability claimants are not likely to assert the violations of their procedural due

process rights resulting from the quota because they are unaware of the quota and how it is

utilized and enforced. The claimants are also not likely to act on their own behalf because they

lack the resources and legal acumen to do so. The cost and burden of a Constitutional challenge

are prohibitive for any individual claimant. Thus, the Individual Plaintiffs and AALJ are as


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effective proponents of the rights of disability claimants as the claimants are themselves, and

may appropriately assert the rights of the claimants.

CLAIMS AND RELIEF SOUGHT

COUNT I

For Declaratory Relief for Injuries to Individual

Plaintiffs and All SSA Administrative Law Judges

106. Paragraphs 1 through 105 above are realleged as if set forth verbatim herein.

107. The Benchmarks and Directive are an illegal quota and/or an unreasonable

production goal that injures the Individual Plaintiffs and all ALJs by, among other things,

infringing on their decisional independence in violation of the Social Security Act and the

Administrative Procedure Act, 5 U.S.C. §§554, 3105, 7521.

108. Because the SSA has utilized and taken disciplinary action to enforce the

Benchmarks and Directive, because the decisional independence of the ALJs has been infringed,

and because the procedural due process rights of the disability claimants have been violated, this

action presents a case of actual controversy pursuant to 28 U.S.C. §2201(a).

109. Through this action, Plaintiffs ask this Court to declare that: (1) the Benchmarks

and Directive are an illegal quota and/or unreasonable production goal; (2) the Benchmarks and

Directive injure the Individual Plaintiffs and all ALJs by, among other things, infringing on their

decisional independence; and (3) the Benchmarks and Directive violate the Social Security Act

and Administrative Procedure Act, 5 U.S.C. §§550 et seq.


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COUNT II

For Injunctive Relief for Injuries to Individual Plaintiffs and All SSA Administrative Law Judges


111. Plaintiffs request a permanent injunction barring defendant, her successors, and

the SSA from utilizing or enforcing the Benchmarks and Directive and from issuing any future

directives or memoranda setting any specific number or range of dispositions by ALJs as quotas,

goals, guidelines, or targets.

112. Plaintiffs will suffer irreparable harm if utilization of the Benchmarks and

Directive is not enjoined because the infringement on decisional independence of the Individual

Plaintiffs and all ALJs will continue, and they will continue to be otherwise injured.

113. Plaintiffs do not have an adequate remedy at law for the violations of the Social

Security Act and Administrative Procedure Act alleged.

114. Any harm that would result from the granting of injunctive relief is far

outweighed by the harm that would result to Plaintiffs if injunctive relief is not granted.

115. An injunction barring utilization of the Benchmarks and Directive will serve the

public interest because the Individual Plaintiffs and all ALJs will be free from interference with

their decisional independence, be capable of fully protecting the procedural due process rights of

disability claimants, and be capable of fully protecting the Social Security Trust Fund and

taxpayers by denying unfounded claims.


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COUNT III

For Declaratory Relief for Violation of Procedural Due Process Rights of Disability Claimants


117. The utilization of the Benchmarks and Directive violates the procedural due

process rights of disability claimants. U.S. CONST. amend. V.

118. Because the SSA has utilized and taken disciplinary action to enforce the

Benchmarks and Directive, because the decisional independence of the ALJs has been infringed,

and because the procedural due process rights of disability claimants have been violated, this

action presents a case of actual controversy pursuant to 28 U.S.C. §2201(a).

119. Through this action, Plaintiffs ask this Court to declare that: (1) the Benchmarks

and Directive are an illegal quota and/or unreasonable production goal; (2) the Benchmarks and

Directive violate the due process rights of disability claimants; and (3) the Benchmarks and

Directive violate the Social Security Act and Administrative Procedure Act, 5 U.S.C. §§550 et

seq.

COUNT IV

For Injunctive Relief for Violation of

Procedural Due Process Rights of Disability Claimants


121. The utilization of the Benchmarks and Directive violates the procedural due

process rights of disability claimants. U.S. CONST. amend. V.

122. Plaintiffs seek a permanent injunction barring defendant, her successors, and the

SSA from utilizing or enforcing the Benchmarks and Directive and from issuing any future


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directives or memoranda setting any specific number or range of dispositions by ALJs as quotas,

goals, guidelines, or targets.

123. Plaintiffs and disability claimants will suffer irreparable harm if utilization of the

Benchmarks and Directive is not enjoined because the infringement on decisional independence

of ALJs and violation of the procedural due process rights of disability claimants will continue.

124. Plaintiffs and disability claimants do not have an adequate remedy at law for the

infringement on decisional independence of ALJs and violation of the procedural due process

rights of disability claimants.

125. Any harm that would result from the granting of injunctive relief is far

outweighed by the harm that would result to Plaintiffs and disability claimants if injunctive relief

is not granted.

126. An injunction barring utilization of the Benchmarks and Directive will serve the

public interest because ALJs will be free from interference with their decisional independence,

be capable of fully protecting the procedural due process rights of disability claimants, and be

capable of fully protecting the Social Security Trust Fund and taxpayers by denying unfounded

claims.

WHEREFORE, Plaintiffs pray for the following relief:

(1) A declaration that the Benchmarks and Directive are an illegal quota and/or

unreasonable production goal in violation of the Social Security Act and Administrative

Procedure Act, 5 U.S.C. §§550 et seq.;


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(2) A declaration that the Benchmarks and Directive violate the procedural due process

rights of disability claimants guaranteed by the United States Constitution;

(3) A permanent injunction barring defendant, her successors, and the SSA from

utilizing or enforcing the Benchmarks and Directive and from issuing any future directives or

memoranda setting any specific number or range of dispositions by ALJs as quotas, goals,

guidelines, or targets;

(4) An award of plaintiffs’ attorney fees and costs; and

(5) Such other and further relief as may be just and proper.

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, JUDICIAL COUNCIL NO. 1, IFPTE, AFL-CIO & CLC; CYNTHIA M. BRETTHAUER; ROBIN L. HENRIE; and GILBERT A. MARTINEZ By: /s/ C. Philip Curley One of their attorneys

C. Philip Curley Cynthia H. Hyndman Laura Kleinman ROBINSON CURLEY & CLAYTON, P.C. 300 South Wacker Drive Suite 1700 Chicago, Illinois 60606 (312) 663-3100 Telephone (312) 663-0303 Facsimile [email protected] [email protected] [email protected]


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Of counsel: Robert H. Stropp, Jr. Diana M. Bardes MOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C. 1920 L Street, N.W. Suite 400 Washington, D.C. 20036 (202) 783-0010 Telephone (202) 783-6088 Facsimile [email protected] [email protected]


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no. 14-1953 in the united states court of appeals for … · 14-08-2017 · case no. 1:13-cv-02925...

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