The MSPB Provides Additional Guidance on Disciplinary Action Against ALJs, Overrules Previous Cases
Respondent served as an Administrative Law Judge (ALJ) with the Department of Health and Human Services (DHHS) beginning in 2006. In January 2018, the agency filed a complaint with the Merit Systems Protection Board (MSPB) to remove the respondent for good cause. The Board’s ALJ issued an initial decision finding good cause for the respondent’s removal, finding that the agency proved three of the five specifications, and stating that the respondent “is removed from his position as an ALJ.”
The respondent filed a petition for review with the Merit Systems Protection Board.
Respondent first argued that the Office of Medicare Hearings and Appeals (OMHA) lacked the delegated authority to seek his removal. He asserted that agency ALJs are under the direct supervision of the DHHS, and that the Secretary of Health and Human Services did not delegate authority to OMHA to initiate actions like the present complaint. The Board relied on 5 U.S.C. § 7521, which states that “the agency in which the [ALJ] is employed” may take an action against the ALJ upon a finding of good cause. Accordingly, the Board found that, because OMHA is a subagency of the DHHS, and because the complaint was filed by attorneys from the agency, DHHS, as well as its subagency, OMHA, the complaint is consistent with the governing statute. Moreover, the Board stated that the respondent failed to show that, even if there was an error, that the error was harmful to the respondent or led to the erroneous filing of the complaint against respondent.
Respondent also argued that the removal was improper because the only action the agency took against him before seeking his removal was a counseling. The Board first explained that its finding of good cause for removal does not bind the employing agency to actually remove the respondent. Instead, the finding of good cause merely authorizes the agency to remove the respondent if it so chooses. Importantly, the Board clarified that, to the extent previous opinions have stated otherwise, those opinions are now overruled. Nevertheless, as the Board explained, when authorizing the employing agency to take disciplinary action, the Board must still consider the Douglas factors. It pointed out that, in this case, the presiding ALJ noted that the respondent had only a single counseling in his disciplinary record. Therefore, the presiding ALJ considered this mitigating factor but found it to be outweighed by the nature and seriousness of the respondent’s proven misconduct.
Finally, the respondent argued that the presiding ALJ failed to disqualify himself despite the respondent's requests. In support of his contentions, respondent relied on a recent article the presiding ALJ was quoted in, which discussed a case at issue in respondent’s complaint. Respondent also pointed to the presiding ALJ’s activities as a member and officer of the Federal Administrative Law Judge Conference. Last, the Respondent argued that the presiding ALJ should have recused himself because one of the agency’s witnesses in this case was the presiding ALJ’s superior at another agency several years prior. The Board denied the respondent’s arguments, finding that none of the cited reasons would lead a reasonable person to question the presiding ALJ’s impartiality.
Accordingly, the Board affirmed the decision of the Board’s ALJ. It noted, though, that the Board’s ALJ erred when stating that the respondent was “removed from his position as an ALJ.” As the Board clarified in this case, its presiding ALJ merely authorizes the employing agency to take a disciplinary action, it does not order the employing agency to take that action.
Find the full case here: DHHS v. Jarboe
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