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Richard L. Abrams v. Social Security Administration

December 28, 2012


Petition for Review of the Merit Systems Protection Board in Case No. CB752108001-T-1.

The opinion of the court was delivered by: Wallach, Circuit Judge.

Before LOURIE, CLEVENGER, and WALLACH, Circuit Judges.

Judge Richard L. Abrams appeals from the Merit Sys- tems Protection Board ("Board") decision upholding his removal by the Social Security Administration ("Agency") from his position as an Administrative Law Judge ("ALJ"). Because the legal challenges are meritless and substantial evidence supports the Board's findings that good cause existed to remove Judge Abrams from his position, we affirm.


Prior to his removal Judge Abrams had been an ALJ with the Agency since 2001 and with the Houston- Bissonnet Hearing Office of the Agency's Office of Disability Adjudication and Review since 2003. The Hearing Office Chief ALJ of the Houston-Bissonnet Office was, at all times relevant to this appeal, Judge Robert McPhail. The Hearing Office Chief is responsible for managing, planning, and coordi- nating the administration of the hearing process for the office. In addition to handling his or her own hearing docket, the [Hearing Office Chief] re- sponds to Congressional and public inquiries, as- signs cases to ALJs, gives directives to ALJs, and assumes the overall responsibility for the expedi- tious handling of case processing in the office.

Soc. Sec. Admin. v. Abrams, No. CB-7521-08-0001-T-1, at 3 (M.S.P.B. Mar. 29, 2010) ("Initial Decision").

In April 2007 the national office sent a memorandum to the regional offices entitled "Benchmarks for Quality Case Processing" ("benchmarks") providing guidelines to facilitate case processing and service delivery. J.A.125. A Collective Bargaining Agreement between the Agency and its ALJs provided that the benchmarks were "guidelines for management officials," and would not be "used as a source of any disciplinary or performance action." J.A.192. Later that year a nationwide initiative began to move cases through the process more quickly, with a particular focus on completing those cases that were more than 900 days old.

Judge Abrams had frequently come to the attention of management due to his difficulty in processing cases in a timely manner. Efforts to address this included entering into an agreement to exchange his older cases for newer cases, not assigning new cases or giving him so called "thin" cases, offering him docket management training, and offering to have his aged cases reassigned; the latter two he refused.

In February 2007, Regional Chief ALJ Joan Parks Saunders sent Judge Abrams a memorandum directing him to decide cases that had been in post hearing status.*fn1

For those he could not decide by March 9, 2007, he was directed to provide a detailed explanation why and what specific action he intended to take with a timeline for taking that action. In a letter dated March 8, 2007, Judge Abrams provided information concerning each of the 27 cases identified in the memorandum.

On June 14, 2007, Judge McPhail sent Judge Abrams an email with the subject line: "Direct Order--Decide Aged Cases or Provide Explanation of Your Intended Course of Action by June 22, 2007" (the "June 2007 direc- tive"). J.A.127. Attached was a list of 53 aged cases in various statuses. For cases in all statuses Judge Abrams was directed to advance them or provide a detailed reason why he could not do so. On June 15, 2007, Judge Abrams told Judge McPhail he would be unable to comply because of his upcoming hearing schedule. Judge McPhail re- sponded advising him that despite his hearing schedule he must still comply. Judge Abrams never responded. On August 6, Judge McPhail reassigned 11 of the 53 listed cases that were the subject of the June 2007 directive; each was more than 1,000 days old. On November 8, 2007, the Agency filed a complaint against Judge Abrams and sought a 14-day suspension for failure to follow the June 2007 directive.

On January 22, 2008, Judge McPhail again directed Judge Abrams to take action regarding 40 cases in vari- ous statuses or provide detailed explanations why he was unable to move a case forward (the "January 2008 direc- tive"). On February 5, 2008, Judge Abrams responded that he had substantially complied and expected that any remaining work he was directed to perform would be completed by February 15, 2008.

Judge McPhail again directed Judge Abrams on May 7, 2008 (the "May 2008 directive") to take action on 19 pending cases or provide a written explanation explaining why he could not do so. Judge Abrams responded that he had completed those cases that were simply awaiting his signature, made edits to those written decisions that needed his review, and returned some cases for re- assignment to other judges. However, upon examination of the case management system, Judge McPhail found otherwise. In particular, Judge McPhail found that cases had simply been shifted to different statuses, rather than moved toward adjudication, without adequate explana- tion. Contrary to Judge Abrams's representation, no cases were returned for reassignment nor was there any agreement in place at the time that cases would be re- turned and reassigned. On July 16, 2008, the Agency filed a second complaint against Judge Abrams with the Board, seeking a 30-day suspension for failure to follow instructions in the January 2008 and May 2008 directives on the grounds that contrary to Judge Abrams's re- sponses, he had not adjudicated the cases or provided explanation as directed.

Judge McPhail issued another directive to Judge Abrams on August 19, 2008, directing him to take action on cases in need of either his signature or edits, without the option of providing a written explanation if he could not adjudicate the cases as directed (the "August 2008 directive"). For cases in other statuses he was directed to move them along in the process or explain why he could not do so. On September 9, 2008, Judge Abrams emailed Judge McPhail to inform him that he had completed all of the tasks as directed. Contrary to Judge Abrams's asser- tion, the Agency determined that Judge Abrams had not moved all of his ...

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