Michael Levinson v. Social Security Administration
2023 MSPB 20
MSPB2023Background
- Michael L. Levinson was appointed an SSA Administrative Law Judge (ALJ) in 2004; he adjudicated Social Security disability hearings in multiple hearing offices.
- From 2014–2017 SSA supervisors directed Levinson to stop off‑the‑record contact with expert witnesses, complete remedial training after a quality review, and attend sensitivity training; he ignored some directives and received a reprimand.
- Between August 2016 and January 2017 Levinson engaged in multiple outbursts toward his Hearing‑Office CALJ (including calling her a “Nazi,” blocking a door, and tearing up a written directive).
- SSA filed a 2017 complaint asking the MSPB to determine good cause to suspend Levinson (pending decision) and to remove him; an ALJ sustained neglect of duty, failure to follow directives, and conduct unbecoming charges and imposed a 2‑year suspension and downgrade.
- Both parties petitioned for review: Levinson argued no discipline or dismissal; SSA sought authorization to remove him. The Board sustained the charges and, modifying the initial decision, authorized SSA to remove Levinson.
Issues
| Issue | Plaintiff's Argument (SSA) | Defendant's Argument (Levinson) | Held |
|---|---|---|---|
| 1. Were the charges (neglect of duty; failure to follow directives; conduct unbecoming) proven? | SSA: record and audits show noncompliance, repeated refusal to follow directives, and misconduct. | Levinson: disputed proof only of some directives/specifications; argued provocation. | Sustained: MSPB found the three charges proven and declined to disturb the ALJ’s factual findings. |
| 2. Were the contested directives (no off‑record expert contacts; mandatory sensitivity training) improper? | SSA: directives were legitimate administrative orders unrelated to decisional independence and consistent with HALLEX and office management. | Levinson: claimed directives were improper, alleged nepotism, HALLEX misapplied, and training unwarranted. | Held proper: Board found directives lawful and not extreme circumstances that justified insubordination. |
| 3. Did discrimination or EEO reprisal motivate SSA’s actions? | SSA: actions responded to misconduct, not protected characteristics or EEO activity. | Levinson: alleged age/religion discrimination, hostile work environment, and reprisal for EEO contacts. | Not proved: MSPB found no persuasive evidence that discrimination or reprisal motivated the complaint or leave. |
| 4. Does an Appointments Clause defect (ALJ/ CALJ/Acting Commissioner appointment) invalidate the complaint? | SSA: Acting Commissioner properly appointed/ratified ALJs and CALJ authority; procedural chain is valid. | Levinson: argued improper appointments (Lucia implications) deprived agency officials of authority to remove him. | Decision‑specific: MSPB did not resolve the appointments question; it held that its good‑cause determination only authorizes agency action and does not itself remove an ALJ, so no practical barrier to later removal by appropriate officer. |
| 5. Is removal (SSA’s requested penalty) justified versus the ALJ’s 2‑year suspension/demotion? | SSA: seriousness, repeated defiance, and prior reprimand warrant removal. | Levinson: urged no discipline or the ALJ’s lesser penalty; invoked mitigating factors. | Removal authorized: applying Douglas factors, Board found misconduct serious, little remorse/rehabilitation potential, prior discipline, and authorized SSA to remove Levinson. |
| 6. Was dismissal of SSA’s complaint warranted as a discovery sanction? | SSA: any missing documents were harmless and later obtained; dismissal disproportionate. | Levinson: alleged SSA intentionally withheld documents and was prejudiced, seeking dismissal. | No sanction: MSPB found no abuse of discretion by the ALJ; dismissal not warranted. |
Key Cases Cited
- Abrams v. Social Security Administration, 703 F.3d 538 (Fed. Cir. 2012) (ALJ discipline permissible when unrelated to decisional independence)
- Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018) (ALJs may be inferior officers under Appointments Clause)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (Douglas factors guide penalty analysis)
- Social Security Administration v. Steverson, 111 M.S.P.R. 649 (2009) (Board may authorize agency removal after finding good cause)
- Social Security Administration v. Long, 113 M.S.P.R. 190 (2010) (application of Douglas factors in ALJ disciplinary context)
- Brennan v. Department of Health & Human Services, 787 F.2d 1559 (Fed. Cir. 1986) (decisional independence does not bar appropriate administrative supervision)
- Pridgen v. Office of Management & Budget, 2022 MSPB 31 (2022) (standard for proving discrimination/retaliation in Board appeals)