Petitioners appeal the final decision of the Merit Systems Protection Board (“MSPB” or “Board”),
In re Sannier, et al.,
BACKGROUND
Petitioners are Administrative Law Judges (“AU”) of the Social Security Administrаtion (“SSA”) assigned to the Lansing, Michigan, Office of Hearings and Appeals (“OHA”). On August 4, 1989, they filed a petition before the MSPB against Theodore Haynes, Regional Chief ALJ (“RCAU”), and the Commissioner and Associate Commissioner of thе SSA, alleging, inter alia, that a series of administrative actions taken by the SSA and RCAU Haynes constituted constructive removal requiring a prior hearing and a determination of “good cause” under section 7521. There is no indiсation in the record, nor does the government argue otherwise, that any such hearings or determinations ever occurred.
On January 10, 1989, petitioners alleged that RCAU Haynes conducted a Regional Conference telephone call informing all AUs that offices of “non-producers” would lose service areas and that requests for transfers from “low produc[ing]” AUs would not be approved. Complaint at 4. Four weeks later, on February 6, 1989, petitioners said that RCAU Haynes transferred various service areas in northern Michigan from the Lansing OHA to promote “more timely service to the public.” Jt.App. at Ex. E. Petitiоners further alleged that since their service areas were reduced, “repeated threats [had] been conveyed” from the RCAU’s office that the Lansing office would be closed and that Lansing staff еmployees were encouraged to transfer so that the office “would be allowed to ‘die on the vine.’ ” Complaint at 5-6. At a May 1989 workshop for attorneys, representatives, and vocationаl experts who appear before the Lansing AUs, petitioners also alleged that RCAU Haynes made disparaging remarks about them in their capacity as AUs. According to the complaint, RCAU Haynes rеferred to the “Lansing judges as his ‘dirty linen’ ” and further stated that the Lansing office did not adjudicate claims in a timely manner, that “while he could not supervise the judges, he could deal with them through staffing,” that “he would not replace staff ... until adjudication of cases increased,” and finally that AUs should be able to hear forty cases a month “without affecting the quality of their decisions.” Complaint at 8-9.
Because of these actions, petitioners claimed, they were constructively removed as AUs, because their “independent adjudicative authority” had been undermined.
Sannier,
On October 25, 1989, the Administrative Judge issued his recommended decisiоn that MSPB dismiss for lack of subject matter jurisdiction. On July 2, 1990, the full Board modified and supplemented certain findings of fact and conclusions of law in the recommended decision and adopted it as the decision оf the Board.
DISCUSSION
Jurisdiction and Standard of Review
This court’s jurisdiction arises under 28 U.S.C. § 1295(a)(9) (1988), and our scope of review is defined and limited by statute. We will affirm the Board’s decision unless it is found to be either arbitrary and capricious, obtained without proсedures required by law, contrary to law, or unsup *858 ported by substantial evidence. 5 U.S.C. § 7703(c) (1988).
I
The burden of establishing subject matter jurisdiction lies with petitioners,
Maddox v. Merit Sys. Protection Bd.,
Section 7521 establishes and limits Board jurisdiction concerning adverse personnel actions taken against ALJs, and further specifies those actions that may be initiated “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board,” 5 U.S.C. § 7521(a). However, section 7521(b) specificаlly excludes from Board review reductions in force, suspension or removal for national security reasons, and actions by the Special Counsel that would otherwise require a “good cause” finding by the Board. Also omitted are reprimands and other less serious disciplinary acts. “Reprimands ... are not among the actions set forth in section 7521. As a result, agencies do not need to establish that good сause exists ... because they do not need [Board] authorization to issue reprimands.”
In re Perry,
Petitioners do not, and cannot, contend under these facts that they were subjectеd to any of the enumerated adverse personnel actions listed in subsection (b). Instead, they argue solely that the agency’s managerial actions constituted a constructive removal. Although a “сonstructive” removal is not specifically enumerated in subsection (b), the Board, as well as this court, has recognized that certain acts may be the equivalent, for purposes of Board jurisdiction, оf formal removal.
Schultz v. United States Navy,
We agree with the Board that “even if [it] were to assume that the ALJs hаve suffered, among other things, staffing shortages, transfer restrictions and reduced service areas due to management’s perception that the Lansing ALJs production rate was low, they have not allеged in any of the many papers submitted that these actions of management have interfered with their impartial decisionmaking ability.”
Sannier,
While ALJ King does contend that the increased pressure to process more cases has led to a higher “reversаl rate,” he has not specifically alleged that his decision-
*859
making has been
affected
by the agency’s management decisions. Therefore, petitioners’ constructive removal claim properly was not entertained by the Board.
See In re Doyle,
Petitioners assert that “[w]hatever [they] may or may not be able to establish as to the merits of their allegations, given the favorable reading required by the Federal Rules of Civil Procedure [or similar procedural guidelines],” they are entitled to a hearing. Sannier Br. at 15, citing
Scheuer v. Rhodes,
II
Petitioners argue that the Board erred by not holding a hearing in regard to their claims. Hоwever, the Board is not required to hold a hearing when facts giving rise to jurisdiction are not properly alleged, even though, as here, its existence may be asserted.
Rose v. Department of Health and Human Servs.,
Ill
Finally, AUs Youngbloоd and King both appeal the Board’s determination that the relief petitioners seek is beyond the reach of section 7521. As the Board correctly noted, its
original
jurisdiction granted under section 7521 does not provide it with authority to either discipline respondents, restore service areas, or require that certain staffing levels be maintained or increased; rather, it only mandates that the Board hold priоr hearings to determine “good cause” as to adverse personnel actions specified in the statute.
Compare Higashi v. Department of Army,
CONCLUSION
Because the Board correctly determined that it did not have subject matter jurisdiction under 5 U.S.C. § 7521 to determine the propriety of actions allegedly taken by respondent, we affirm its decision dismissing their petition.
AFFIRMED.