*1 LONG, Petitioner, E. Danvers
SOCIAL SECURITY
ADMINISTRATION,
Respondent. 2010-3108.
No. Appeals,
United States Court
Federal Circuit. 14, 2011.
March
Background Agency employed Long as an ALJ Disability Adjudication its Office of *3 Lauderdale, Review in Fort begin- Florida ning approximately 2001. At p.m. 11:00 27, 2008, January on Long was involved in physical a (“January altercation Incident”) partner, with his domestic Lilia (“Castro”), Vanessa Castro who is the child, youngest mother of his Charlize Long physical Castro. The altercation be- Firm, Christopher Sharp, Sharp C. Law gan home, when Castro returned after P.A., Plantation, FL, argued peti- of care, leaving their child in Long’s to dis- tioner. that Long asleep cover was in their bed- Hosford, Elizabeth M. Senior Trial room and the child was not with him. Counsel, Branch, Litigation Commercial Eventually, Castro fled the home on foot Division, Department Civil United States and continued to the home of Lisa and Justice, DC, Washington, of of argued for (“the Feeney Feeneys”), Donald who lived respondent. With her on the brief were away almost a mile Long from and Castro. West, Tony General, Attorney Assistant After Castro Feeneys Long told the Davidson, Director, Jeanne E. and Brian child, hit her Feeney and the Lisa called Simkin, M. Assistant Director. 911 on Castro’s behalf. police Three offi- responded Feeneys’ cers to the home and Stagno,
Linda A. Association of Admin- Castro; questioned a Spanish-speaking of- istrative Judges, Brooklyn, Law New tape-recorded ficer took a statement from York, argued for amicus curiae. Of coun- Castro. In these interviews and Castro’s Krent, sel was Harold Chicago-Kent J. statement, explained Castro that Long re- Law, College Chicago, IL. peatedly struck and pushed her and that GAJARSA, DYK, PROST, Before accidentally he struck their child. The Judges. Circuit observed, digital and took photo- of, graphs physical injuries on Castro’s Opinion for the court by filed Circuit face, forearm, thigh as well as a red Judge PROST. mark on the child’s Long face. was ar- Concurring opinion by filed Circuit and, 21, 2008, rested on February was Judge DYK. charged with one count of domestic vio- battery lence and one count of culpable PROST, Judge. Circuit negligence. prosecutor The later entered Long Petitioner Danvers E. (“Long”) prosequi a nolle on charges the criminal petitions for review the final decision of against Long. Systems the Merit Protection Board (“Board”) Agency The finding good Complaint, filed a on cause to remove June 30, 2008, Long position Complaint, from his as an and an Amended administra- on (“ALJ”) 3, 2008, judge tive law seeking Long’s October the Social removal Security (“Agency”) position Administration from his as an based ALJ based on one charge on a of conduct unbecoming unbecoming an ALJ ALJ. We affirm. arising January out of the Inci- January though the details of the specifica- two charge contained dent. clear, estab- tions: Incident were violence or about lished used Specification 1: On struck, 27, 2008, [Long] repeatedly preponder- proved and thus Castro Lilia Cas- pushed Vanessa grabbed, and of the ance of the evidence the “substance” tro. specification charge. Soc. Sec. first Admin, 2: or about Specification On CB7521080019-I-1, Long, No. [Long] struck Charlize 2009) (M.S.P.B. at 21-22 June slip op. Castro, while Lilia Vanessa Castro (“Initial ”). Giannasi, how- Decision ALJ holding her. *4 ever, prove that the failed to found J.A. Id. at 22-23. specification. the second Douglas Administrative Law on his review of the fac- hearing At a before Based (“ALJ Giannasi”), sitting Judge tors, Giannasi good ALJ Giannasi found cause for a testi- ALJ Giannasi heard by designation, forty-five day suspension, rather than the alia, Castro, from, Lisa Long, inter mony 1, at requested penalty of removal. Id. Feeney, and two of the Feeney, Donald 31-32. police par- officers. The responding
three the Board for Agency petitioned The of jointly stipulated to the submission ties of the initial decision. Soc. Sec. review teenage testimony Long’s of deposition Admin, 190, Long, v. 113 M.S.P.R. 193-94 during home the Janu- children who were (2010) (“Final Decision”). The Incident, 27, Long Ana and Dan- ary 2008 Agency’s petition and issued a granted the Jr., having the two Long, lieu vers January final on 2010. Id. It decision Feeney, Don- hearing. at Lisa testify Agency proved specifi- both police the two officers found Feeney, ald Castro, noticeably who was charge testified that cations of the of conduct unbecom- injuries, physical visible shaken and had by of the preponderance an ALJ physically violent. Long told them that was 193-94, 196-97, at evidence. Id. 207-08. however, striking Castro and Long, denied conclusion, Board, in reaching In this that, during the the child but admitted Giannasi, contrast to ALJ found that Incident, grabbed 2008 he was hearing testimony Long and Castro may have on several occasions and Castro 196-97, Id. at not credible or reliable. Long claimed that his actions pushed her. instead relied on the 205-08. The Board during the incident were taken defense hearing testimony Feeneys of the Castro, and his child. who of himself officers, reports, Castro’s police police hearing of the had reconciled with the time night police sworn statement to living Long, with denied again and was incident, deposition and the statement Feeneys and the telling 196-97, testimony Long. of Ana Id. during her and the child Long struck 198-99, Further, the Board found 202-08. Incident. She testified 2008 disciplinary cause for action good only grabbed protect her to Long and determined that removal her. push and did not or strike himself appropriate penalty. Id. 202-13. that she did not know further testified She if struck the child. for review of the Long timely petitioned in this court. We Board’s final decision 2, 2009, issued an
On June ALJ Giannasi jurisdiction pursuant to 28 U.S.C. have sustaining charge initial decision 1295(a)(9). that, § found against Long. ALJ Giannasi general rule is that the Board Discussion is free to re-weigh the evidence and substi review of Board decisions is “Our judgment tute its for that of one of its only may a Board limited. We reverse judges. administrative Leatherbury decision if we find the decision to be arbi Dep’t the Army, 524 F.3d discretion, trary, capricious, an abuse of (Fed.Cir.2008); Justice, Dep’t Haebe v. law; otherwise not accordance with ob (Fed.Cir.2002). 288 F.3d “An law; procedures required by tained without however, important exception, is that the unsupported by substantial evidence.” Board is not ‘free to overturn an adminis Justice, Dep’t Kahn v. 618 F.3d trative judge’s demeanor credibility based (Fed.Cir.2010) (citing 5 U.S.C. findings merely disagrees because it 7703(c)). § ” findings.’ those Leatherbury, 524 F.3d Long raises a number of ap- issues on at 1304. Specifically, First, peal. Long argues that the Board’s where an administrative judge able Agency proved [is] that the both speci- to observe the testifying demeanor of a fications of the of conduct unbe- *5 and, result, witness coming supported an ALJ is not as the by sub- adminis- Second, judge’s trative findings stantial evidence. explicitly [are] contests implicitly or finding the based on the Board’s cause” for demeanor of witness, the the disciplinary may simply action him. Board not Finally, Long objects disagree with the imposed to the AJ’s assessment of penalty of credibility removal. ... address each in unless the [B]oard turn. has reasons,
articulated sound based on the record, I for contrary its evaluation of the testimonial evidence. A omitted). (quotation Id. at 1304-05 marks Long argues that the Board’s decision to Therefore, “if the [Board]’s reasons for sustain the unbecoming overturning demeanor-based credibility supported by ALJ is not substantial determinations sufficiently sound, are not evidence because improperly the Board its decision does not survive substantial overturned ALJ Giannasi’s demeanor- Haebe, evidence review.” 288 F.3d at credibility determinations, based including 1301. his determination that testimony the Agency several fully witnesses was not Accordingly, for each of ALJ credible or reliable as well as his concomi- Giannasi’s determinations that the Board tant finding Agency overturned, witnesses if the determination was not spoke who with Castro night demeanor-based, there was no restraint on incident were unable to obtain a full under- ability Board’s to reconsider the evi standing of the given incident lim- Castro’s dence and reach a different conclusion. If ability speak ited to English. Pet’r’s Br. explicitly determination was implic 19, 22-41; Reply In response, itly demeanor-based, Br. 4-20. however, the Board contends that findings required give reasons, was to “sound based which Long takes issue on appeal were not on the record” for overturning ALJ Gian demeanor-based determinations and thus nasi’s conclusion. We need not address the Board was free to judg- substitute its into which category the determinations at ment for that of ALJ Resp’t Giannasi. Br. appeal issue on fall because we conclude 20-32. Board, detailed, in its thorough Board, however, rejected Id. at 13. The and ALJ Gianna- analysis of the evidence regarding Ser- determinations, reasons for ALJ Giannasi’s conclusions gave sound si’s contrary testimony. Final Deci- geant that were Coleman’s conclusions any alleged As to the first by ALJ Giannasi.1 sion 204-05. those reached strin- discrepancy, pointed the more the Board to other therefore satisfied overturning demeanor- referencing evidence that Castro gent standard record credibility Long prevented determinations. the house after her based left calling police, including Sergeant from Long objects example, For affidavit, probable cause Coleman’s own Gianna- disagreement with ALJ report, Madison’s incident Officer reliability findings regarding si’s statement, thereby belying sworn Castro’s Coleman, one of credibility Sergeant the fact ALJ Giannasi’s was Br. police officers. Pet’r’s responding by any “supported other witness 38; ALJ Giannasi Reply Br. 31-32. Id.; any other evidence.” J.A. J.A. testimony Coleman’s Sergeant found that 94-95; 85; J.A. see also J.A. 104. With weight because cer- entitled to less respect alleged discrepancy, to the second him its question led discrepancies tain showing the Board cited record evidence First, accuracy. Initial Decision that Castro had indeed stated to other Sergeant noted that Cole- ALJ Giannasi hit with a closed officers her stated that she man testified that Castro fist, including sworn her statement her Long prevented house after left the report. incident Final Officer Madison’s police, yet this fact is not calling from 204-05; 82-83; Decision at J.A. J.A. 92. Sergeant incident mentioned Coleman’s specific the Board Because referenced *6 by any other “supported and is not report establishing that portions of the record Id. at any other evidence.” witness findings regarding ALJ Giannasi’s dis- Second, explained 12-13. ALJ Giannasi in crepancies Sergeant Coleman’s testimo- Sergeant Coleman’s “doubt[ed] that he inaccurate, ny factually were the Board him told that testimony that Ms. Castro reasons, undoubtedly provided “sound by a closed fist” because she was hit record,” contrary based on the for its con- Feeneys anyone the did not tell “[s]he by hit a closed fist.” clusions. else that she was is, however, exception. Specifi- properly found that Castro initiated the vio-
1. There one 15, 21, 31. lence. Initial Decision at cally, we that the Board erred conclude overturning findings regard- ALJ Giannasi's however, error, The Board's was harmless ing provocation Long but this er- Castro's of regarding because its ultimate conclusion analysis provoca- In its ror was harmless. tion, premise provocation is unaffected its that the the Board stated "Ms. Castro struck Long physical was the first to use violence. attempt get away respondent from in an provo- ultimately that The Board determined pushed grabbed when he and her him "lessening mitigating cation is not a factor after up.” him Final Decision at 212 conduct,” she woke [Longl's culpability for his because such, added). ap- (emphasis the Board As by pursuing Long the "escalated” situation working premise Long pears on the that to be eventually "throughout Castro the house physical was the to use violence. neighborhood,” first the rather than out into acknowledge did not that Castro’s choosing Final to avoid "further conflict.” well as Castro's and Regardless sworn statement as Decision at 212. of whether Cas- first, hearing testimony Long’s Long state that Castro tro the Board's conclusion struck factor, Long mitigating 99- provocation he struck her. J.A. struck that is not before 100; 1024; Long’s J.A. 1206-08. Because there of the violence J.A. based on escalation record, contradictory despite having opportunity to avoid fur- evidence in the the is no conflict, well-supported by the record undisputed. this un- ther point is Based on this evidence, appropriate. ALJ Giannasi evidence controverted record B Additionally, Long disputes the Board’s rejection of ALJ Giannasi’s determination Long argues Agency also that the witnesses who testimony that from the prove specification did not either spoke night with of the Castro charge unbecoming of conduct an ALJ. necessarily accu- 2008 Incident was 19, 42-53; Br. Reply Pet’r’s Br. 34-37. rate or reliable. ALJ Giannasi based this however, Long’s argument, is based on determination on his that Castro’s ALJ findings regarding Giannasi’s ability speak English prevented limited Incident, Long which a full obtaining the witnesses from under- urges adopt. the court to Pet’r’s Br. See standing of the incident. Initial Decision upheld 51. Because we have instead Long Pet’r’s Br. 30-33. defends findings regarding the Janu wit- ALJ Giannasi’s determination Incident, ary we need not address unreliable, testimony emphasiz- ness specifics Long’s argument this Spanish-speak- that the used a regard. ing officer to interview Castro and that she Spanish through interpreter testified in Further, Agency asserts hearing at the before ALJ Giannasi. Ac- prove bore the burden to the elements of cording Long, these facts demonstrate the criminal of misdemeanor do- English Castro’s limited abilities. Never- violence, intent, including mestic a burden theless, we conclude that gave the Board Reply failed to meet. Br. 20- disagreement “sound reasons” for its with see Pet’r’s Br. contends Indeed, ALJ Giannasi’s determination. as Agency’s characterization noted, specific the Board with citations to Long’s specification record, “all witnesses at hearing Complaint effectively it establishes spoke
who night Ms. Castro on the charged Long with criminal this offense. incident, i.e., Mr. Feeney and Mrs. however, Reply Agency, Br. 20-21. The officers, two police they indicated that had explicitly charged Long with “conduct un- understanding no trouble her.” Final De- becoming an ALJ.” J.A. 72. “[W]hen *7 203; 1159-64; 1170; at cision J.A. J.A. agency general uses such charging lan- 1188; 1197; 1241; J.A. J.A. J.A. J.A. guage, the Board specifi- must look to the 1254-56; addition, In J.A. 1281. cation to determine what conduct explained though may Board that it have agency is relying on as the basis for its Spanish been easier for a speaker to ob- proposed disciplinary action.” Russo v. Castro, tain details of the incident from Serv., U.S. Postal 284 F.3d 1308 there is no evidence that she was unable to (Fed.Cir.2002). The specification of the communicate the relevant in English. facts Complaint Amended includes a narrative Final Decision at 203-04. This conclusion Incident, 2008 which supported by testimony is from Sergeant charges references the criminal filed Coleman that he was able to communicate against Long, including domestic violence Spanish- Castro and directed the 72; battery culpable negligence. J.A. speaking officer to only interview Castro J.A. 74-77. Yet Complaint the Amended to allow her to communicate with ease. expressly Id.; Agency states “the seeks Again, J.A. 1254-56. because the [Longj’s upon underly- removal based his pointed specific record evidence conduct, the fact that criminal contradicted Giannasi’s ALJ determi- nation, charges brought against we conclude have been him. that the Board’s rea- soning “sufficiently was Regardless sound.” of the outcome the criminal
533 appearance actions at [Long]’s impropriety.” a review of Id. proceedings, Further, that, explained he is not fit to continue to the Board clearly show 208. 74; see J.A. 77. “efficiency serve as an ALJ.” J.A. contrast to the of the service” Therefore, referencing the criminal despite 7513(a), “good § standard of 5 U.S.C. Long, 7521(a) the Amended charges filed § cause” under 5 U.S.C. does not that the Agency’s makes clear Complaint analysis require “separate of nexus.” Id. charge unbecoming of conduct ALJ is at 209. Long’s underlying on conduct dur-
based case, Turning to the facts of this Incident, not the ing the Long’s “physical Board found that alterca- charges. Larry merits of the criminal See partner, resulting tion with his domestic Justice, Dep’t 76 M.S.P.R. neighbors the involvement of and the in- (1997). properly The Board thus deter- ... tervention of officers was incon- required to Agency mined that the was not maintaining respect sistent with for the prove the elements of misdemeanor do- adjudicatory process.” administrative Id. mestic violence. Final Decision at 208-09. at 208. The Board found that this conduct such, we conclude that substantial As “good meets the cause standard for disci- supports the Board’s evidence plinary action.” at Id. see id. at 208- specifications both Agency proved unbecoming an of conduct ALJ. A
II § Pursuant to 5 U.S.C. appeal, Long On does not contest the permitted to remove or sus “good cause” standard and con- ALJ, “only good cause pend Long, ceded, at argument, oral that the standard Merit established and determined acceptable appropriate. Arg. Oral Systems Protection Board.” U.S.C. 2:28-2:58, http:// available 7521(a)-(b); Dep’t § Brennan v. Health oralarguments.cafc.uscourts.gov/Audiomp Servs., Human 787 F.2d & generally See Pet’r’s 3/2010-3108.MP3. (Fed.Cir.1986). addressing In Br.; contrast, In Reply Br. Amicus Curi- cause,” posi that the the Board noted ALJ ae, the Association of Administrative Law “prominence,” tion is one of meant to en (“AALJ”), objects Judges to the Board’s gender “great respect.” Final Decision at disputes construction of cause” and that an 207. The Board therefore held Agency’s argument in a ALJ must not conduct himself manner interpretation is entitled to Chevron defer- *8 in public that “undermines confidence ence. Amicus Br. 9-24. We therefore adjudicatory Id. process.” administrative interpretation address the Board’s of that it explained The Board has held “good § cause” in 5 U.S.C. the American Bar Association Model Code (“ABA Code”) The Administrative Procedures Act Model is of Judicial Conduct (“APA”) “good does not define cause.” appropriate guide evaluating for Brennan, Indeed, F.2d at 1561. See 787 quoted Rule conduct of ALJs and Canon inten- recognized “Congress we have ABA “A judge 1.2 of the Model Code: in tionally ‘good failed to define cause’ act at all times in a manner that shall Rather, ‘good ... Act. cause’ is to be indepen in promotes public confidence dence, judicial interpreta- given meaning through integrity, impartiality of judiciary, impropriety and shall avoid and tion....” Id. at 1561-62.
534 ‘“good express congressional cause’ standard such authorization
Although define,” in engage rulemaking to the courts to courts for Board to was left respect a “succinct definition for with to section 7521. Id. We fur- provided have not ” have, at 1562. Courts ther determined that “section 7521 author- ‘good cause.’ Id. however, ‘good adjudicate articulated “what cause’ is izes the Board to whether an Court, in Supreme agency good The has established cause for dis- not.” Id. at 1568. Trial Ramspeck ciplinary v. Federal Examiners action ALJ.” Id. Thus, Conference, U.S. 73 S.Ct. 97 we held that Board has been “[t]he 345 (1953), “good charged administering held that cause” is section 7521 L.Ed. 872 “good through rulemaking adjudication behavior” stan- both equivalent judges. to Article III and is applicable dard entitled to Chevron deference Brennan, addition, F.2d at 1562. In these Accordingly, 787 activities.” Id. under Tunik, this court has held that a cannot of interpretation “good if it is “good subject constitute cause” “based on cause” section 7521 is to Chev- improper which constitute an in- ron reasons deference. performance with the
terference
ALJ’s
AALJ, however,
contends that the
quasi-judicial
his
functions.” Id. at 1563.
interpretation
Board’s
“good
cause” in
holdings help
These
narrow and frame the
section 7521 is not entitled to Chevron
“good cause” standard but do not define
deference
open
because courts have left
“good cause.”
question
of whether Chevron deference
In the
of a
in
controlling
applicable
absence
is
where more than
agency
one
terpretation
responsible
cause”
the Su
interpreting
imple
for
court,
preme
Agency menting
Court or this
a statute. Amicus Br. 9 n. 2.
argues
give
that we must
Chevron
support,
points
defer
For
the AALJ
to the Office
(“OPM’s”)
interpretation
to the
Management’s
ence
of Personnel
role
Resp’t
agree.
cause.”
Br. 42-47.
In
in interpreting
We
and rulemaking with re
Board,
Systems
7513(a),
Tunik v. Merit
Protection
spect
§
to 5 U.S.C.
which includes
(Fed.Cir.2005),
535
Code,
permissible
7521 is ABA Model
is a
con-
cause” in section
“good
tion of
statutory language.
struction of the
See
by Chevron.
governed
view,
Decision at 208.
In our
the
Final
two-part
the
test of Chev
Under
rational,
construction is
consistent
Board’s
ron,
“whether
a court must first determine
APA,
light
the
and reasonable in
of
with
directly spoken
pre
has
to the
Congress
design.
agree
APA’s
do not
with
the
v. Ever
at issue.” Sullivan
question
cise
assertion that the Board’s in-
the AALJ’s
960,
hart,
83, 89-90, 110
108
494 U.S.
S.Ct.
“good
prohibits
of
terpretation
cause”
(1990).
so,
of
72
If
that is the end
L.Ed.2d
acting
independence
ALJs from
with the
court,
because “the
as well as
inquiry
the
2,
required by the APA. Amicus Br. 9 n.
unam
give
must
effect to the
agency,
provi-
APA
indeed have
13-14. The
does
expressed
Congress.”
intent of
biguously
indepen-
sions to ensure the “decisional
however,
89,
If,
110
960.
“the
Id. at
S.Ct.
prohibits
dence” ALJs and
“substantive
respect
ambiguous
statute is silent or
supervision
of an
...
reviews
ALJ’s
issue,”
must sus
specific
to the
the court
Brennan,
quasi-judicial functions.”
if it
a
agency’s
tain the
construction
is
interpreta-
F.2d at 1562. Yet the Board’s
of the statute.”
“permissible construction
“good
tion of
cause” to cover conduct that
Mich.,
Id.;
Transp.,
see Yellow
Inc. v.
in
public
“undermines
confidence
the ad-
123 S.Ct.
work of the
Indeed,
Dep’t
functions.” Doe v.
agency’s
generally.
formance of its
mission
(Fed.Cir.
1375,
Justice, 565 F.3d
1379
wholly
an
misconduct
unrelated to
ALJ’s
2009).
“efficiency of the service”
position,
expected
the characteristics
of an
however,
7513(a),
standard of section
ALJ,
agency’s performance
or the
“good cause” standard of
distinct from the
any way
in
mission would not
“undermine
7521(a), applicable to ALJs like
section
public confidence
the administrative ad-
7521(a).
7513(a),
§§
Long. See 5 U.S.C.
such,
judicatory process.”
despite
As
held,
repeatedly
as it did
The Board has
separate
requirement,
lack of a
nexus
here,
cause”
“good
standard
interpretation
“good
Board’s
cause” en-
equivalent
is not
to the “effi
section 7521
that an
sures
ALJ’s misconduct must have
ciency of the service” standard of section
relationship
agency
some
to the
or to 209-10; see, e.g.,
7513. Final Decision
position
subject
ALJ’s
order to
the ALJ
Admin, Carr,
v.
78 M.S.P.R.
Soc. Sec.
to discipline.
(Fed.Cir.
(1998), aff'd,
Further, reject arguments put we Long’s conduct was inconsistent with by the AALJ and to a lesser forward maintaining confidence in the administra extent, Long, that the Board’s failure to adjudicatory process. Arg. tive See Oral require analysis “good a “nexus” for 2:57-3:04, 16:40-19:35; Amicus Br. 11. cause” under section 7521 allows to ALJs disagree. entirely be un- disciplined misconduct Incident, During judicial related to ALJ’s duties or the physically violent with his do- 8-12, 18; Br. agency. relevant See Amicus Castro, partner, mestic both within and Reply see also Pet’r’s Br. Br. they outside the home shared. fol- Specifically, the AALJ contends that the Castro, lowed who held them child in her Board’s standard cause” allows arms, into several different rooms of their agency private, an ALJ’s immoral house, escalating the incident with re- personal lifestyle behavior well as his as Further, peated physical assaults. when choices, impact which have no agen- on the foot, Long fled the house on pur- Castro cy ability perform the ALJ’s his result, her. As a argument sued 8-14, Br. argu- duties. Amicus 18. These Long’s physical violence Castro ments overlook the substance of the spread neighborhood. into the The inci- standard, cause” which en- ultimately dent resulted the involvement compasses only “undermines neighbors police. and the intervention of
public confidence in the administrative ad- judicatory Despite attempts classify the AALJ’s process.” Final Decision at immoral, Long’s purely 208. This misconduct as standard ensures miscon- Long’s night duct constituting “good cause” for disci- actions on the violent, abusive, plinary way potentially action relates in some to the 2008 were *11 8-9, 11-12, Amicus Br. 18. ALJs were also aware of the criminal. See incident. undoubtedly inconsistent J.A. 1110. violence is Such for and confi- maintaining respect Further, disagree we with the AALJ’s adjudicatory in the administrative dence implication argument at oral that an ALJ’s Long’s ques- behavior calls into process. actually misconduct negative must receive ability perform his duties as an tion his to publicity, e.g., through newspaper, the reputation of uphold ALJ and to television, internet, or the in order to raise regard- as it raises serious doubts Agency, regarding public concerns confidence in of characteristics essen- possession his adjudicatory process. the administrative position, including judicial tial to the ALJ Arg. See Oral at 16:40-19:35. press Such demeanor, control, temperament, and coverage required is not for an ALJ’s con- judgment. See Final Decision at 210-11. public to undermine duct confidence Thus, supports substantial evidence adjudicatory administrative process. The Long’s that conduct finding Board’s under- propriety disciplinary against action public mined confidence the administra- ALJ does not rest on happenstance adjudicatory process. tive media attention regarding the ALJ’s be- havior. reject holding, Long’s
In so we and the argument January Additionally, both Long AALJ’s and the AALJ dispute did not result in sufficient “good 2008 Incident cause” notoriety awareness to warrant public grounds on the that there was no evidence disciplinary against Long’s actually cause” for action impacted his 54; 8, 12; workplace ability Pet’r’s Br. Amicus Br. Long. perform his duties. 54; 24; Arg. at 16:40-19:35. As the Board Pet’r’s Br. Reply Oral Br. Amicus Br. 11-12,16. recognized, 2008 Incident cause” stan- dard, however, press coverage requires not receive or substan- only did notoriety. tial Final at public Decision ALJ’s conduct undermine confidence in Nevertheless, adjudicatory 213 & n. 13. the record the administrative process. suggestion and the AALJ’s Long’s undermining belies Such of confidence occurs a private the incident was matter where the conduct creates doubts in the public ability carry responsibili- about which the was unaware. The ALJ’s out his spread 2008 Incident into ties or raises concerns that the ALJ’s be- neighborhood poorly agency when Castro left the house havior will reflect on the Here, and her in adjudicatory process. followed his car. The and its Long’s argument physical Long’s supervisors, including verbal vio- the Chief ALJ, public Regional lence Castro continued in ALJ and the Chief testified At neighbors, view. least two the Fee- that his behavior caused them to have neys, regarding ability who lived almost mile from serious concerns his home, actively adequately perform became in- Castro’s his duties. Final De- Moreover, volved in the incident when Castro arrived at 210-11. cision the fact that home, frightened and seeking help. purely private their the incident was not raised Moreover, public after the intervened and realistic concerns that would police posted Long, mug Long’s ability arrested his share such doubts as to publicly propriety Agency’s adjudicatory shot on the accessible Broward County process. (quoting Sheriffs Office’s website. J.A. See id. at 208 n. 9 Lisa 306-07; 1475; Arg. Feeney Feeney’s impressions J.A. J.A. Oral and Donald Long’s regarding Long’s 18:36-45. co-workers and other conduct in relation to his *12 ALJ). such, uphold Systems As we the claimed role of the Merit position as an (“Board”) determining Protection Board in Long’s conduct employees engaged whether federal have 2008 Incident con- during the in misconduct the workplace.1 outside disciplinary cause” for ac- stituted Whether the standard is the usual “effi- tion him. standard,
ciency of the service”
5 U.S.C.
§
gov-
or the
cause” standard
Ill
erning discipline for administrative law
argues
Finally, Long
that the
(“ALJs”),
§
judges
5 U.S.C.
I doubt
mitigate
penalty
of re
court should
Congress
broadly
intended to
author-
misapplied
Board
moval because the
investigations
ize the Board to conduct
into
removal is so uncon
Douglas factors and
employees’ private
federal
conduct. Nei-
scionably disproportionate
Long’s con
agencies
ther the Board nor federal
are
that it amounts to an abuse of discre
duct
given general
a
warrant to ferret out mis-
57-72; Reply
Br.
Br.
tion. Pet’r’s
29-35.
private
lives of federal em-
may
penalty imposed by
overturn
ployees.
thing
It
one
the Board to
“[o]nly
the Board for an ALJ’s misconduct
employee
sustain the
of an
dismissal
based
exceptional
penal
in the
case which the
conviction;
quite
on a criminal
it is
another
ty
by
exceeds that
statute or
permitted
adjudicate
for the
criminal behav-
regulations or is so harsh that it amounts
ior when state or federal authorities have
Brennan,
to an abuse of discretion.”
prosecution.
declined
Here,
F.2d at
the Board
1563.
conducted
disclaimers,
Despite the Board’s
that is
analysis
a thorough
Douglas
of the
factors
here;
effectively what
the Board did
it
the nature and
and found
seriousness of
adjudicated criminal conduct. The proce-
misconduct,
Long’s
negative
as well as its
were,
evidentiary
dures and
standards
impact
supervisors’
on the
and his
however, substantially different
than in
ability
confidence in
to adequately per
his
proceedings.
criminal
The petitioner was
duties,
judicial
form his
warranted remov
Moreover,
jury
not afforded a
trial.
most
al. Final Decision at 210-13. Particular
of the evidence on which the Board relied
ly in light
gravity
of the
of the sustained
would have been inadmissible in a criminal
misconduct and evidence that this conduct
only
trial. Not
does most of the evidence
Long’s supervisors
caused
to have serious
(e.g.,
transcript
of Ms. Castro’s state-
concerns regarding
ability
effectively
his
ment
night
on the
of the incident and the
ALJ,
serve as an
we cannot conclude that
testimony by
the two
officers
imposed penalty
of removal was so
Feeney
Mr. and Mrs.
about what Ms. Cas-
harsh that it amounts to an abuse of dis
tro told them happened
night
on the
Accordingly,
uphold
cretion.
we
incident)
hearsay,
constitute
but the criti-
penalty
of removal.
hearsay
cal item of
transcript of the
—the
AFFIRMED
police interview with Ms. Castro on the
night of the incident —was not
au-
even
DYK,
Judge, concurring.
Circuit
thenticated,
top
see Fed.R.Evid. 901. On
join
majority
this,
I
opinion,
While
I write
rejected
the Board
some of the
separately
my
to express
concerns about
factual findings
judge
of the administrative
case,
officer,
opinion
In addition to this
our
in Doe
duct
a federal law enforcement
Justice,
(Fed.
Department
for workplace discipline, they
to whether con- satisfy cause” or the efficien-
stitute Doe,
cy of the service standard. See Doe, In overturned
F.3d at 1380-81. we sustaining the Board’s decision the remov- WHOLESALE, RELIABLE OLD al of a federal law enforcement officer INC., Plaintiff-Appellant, “clearly dishonest” conduct because the meaningful Board “failed to articulate a private dishonesty standard as to when CORPORATION, CORNELL level of misconduct” [a]
rises where Defendant-Appellee. discipline is warranted under the “efficien- No. 2010-1247. cy of the service” standard. Id. at 1380. explained predeter- that “without a Appeals, United States Court of [concerning off-duty when mined standard Federal Circuit. subject employees misconduct can to disci- March pline] employees ... federal are not on off-duty notice as to what behavior is sub-
ject investigation government and the overly
could use this broad standard to
legitimize personal removals made for
political Although reasons.” Id. at 1381. properly
the standards issue was not case, petitioner
raised in this these apply
same concerns also removal of off-duty
ALJs for misconduct. present
These features of the case—the nature of charges, preva-
criminal hearsay
lence of and non-authenticated ev-
idence, rejection of the administrative
judge’s findings, compre- and the lack of a disquieting. standard —are
hensive There
is room for such Board action in unusual
eases, appears and this to be one of those
cases. This is so because of the serious- charge,
ness of the the fact that the alter- involvement, spurred police
cation evidence,
strength hearsay the rela-