E6-9239. Actions Filed by Administrative Law Judges

AGENCY:

Merit Systems Protection Board.

ACTION:

Final rule.

SUMMARY:

The Merit Systems Protection Board (MSPB or the Board) is amending its regulation governing actions filed by an administrative law judge (ALJ) under 5 U.S.C. 7521 to repeal the standard for establishing a constructive removal under the statute that was formerly incorporated in the regulation. The standard for establishing a constructive removal is addressed in the Board's case law. The amended regulation provides procedural guidance for ALJ-initiated actions alleging violation of section 7521.

DATES:

Effective Date: June 14, 2006.

FOR FURTHER INFORMATION CONTACT:

Bentley M. Roberts, Jr., Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; [phone]; fax: [phone]; or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The Board added 5 CFR 1201.142 to its regulations governing actions under 5 U.S.C. 7521 to cover actions filed by an ALJ rather than an agency. As promulgated in 1997, the regulation codified the Board's holding in In re Doyle, 29 M.S.P.R. 170 (1985), that a sitting ALJ may be constructively removed under 5 U.S.C. 7521 by agency actions that interfere with the ALJ's qualified decisional independence. In Tunik v. Social Security Administration, 93 M.S.P.R. 482 (2003), the Board overruled Doyle and held that to establish a constructive removal the ALJ must have left the position of ALJ and must show that the decision to leave was involuntary under the test for involuntariness used in appeals under 5 U.S.C. 7512. In a consolidated appeal reviewing Tunik and cases following it, the U.S. Court of Appeals for the Federal Circuit approved the Board's conclusion that the plain language of section 7521 can reasonably be read to apply only to cases of actual separation from employment as an ALJ. However, the court found that, because 5 CFR 1201.142 was issued pursuant to the notice-and-comment requirements of 5 U.S.C. 553, the Board lacked authority to overrule the regulation in an adjudication. The court stated that its conclusion did not foreclose the Board from repealing the rule in accordance with section 553(b). Tunik v. Merit Systems Protection Board, 407 F.3d 1326 (Fed. Cir. 2005).

Accordingly, the Board proposed this amendment to section 1201.142 and published it for comments at 70 FR 48081 (August 16, 2005). The time for comments was subsequently extended to November 25, 2005, at 70 FR 61750 (October 16, 2005). The Board has received comments from two associations, an agency and two individuals. After careful consideration of the comments received, the Board is adopting the rule as proposed.

1. Four of the commenters urged the Board to retain the Doyle standard permitting constructive removal actions by sitting ALJs as necessary to protect the their decisional independence and the due process rights of claimants before them. Two of the commenters argued more specifically that under the amended rule punitive actions could be taken against ALJs in order to intimidate them from taking actions or to get them to alter their decisions.

The Board does not find this argument persuasive. Congress has protected the independence of ALJs by enacting the statutory requirement that there be an MSPB finding of good cause before a removal from the position of ALJ (or other specified adverse action) can be taken. Since the Board's case law precludes a finding of good cause under section 7521 for an action based on how an ALJ decides a case, this protection permits ALJs to resist the most serious agency pressures that could undermine their independence. The Board sees no justification for extending its jurisdiction to provide additional protection beyond what Congress has provided through the authority given to the Board in the statute.

2. One commenter suggested that the amended regulation is inconsistent with the definition of removal under section 7521 found in 5 CFR 930.202(f) because under that regulation of the Office of Personnel Management, the definition includes reassignment to a non-ALJ position.

This suggestion is based on a mistake. The amended regulation requires involuntary separation from the position of ALJ, not separation from the civil service. Reassignment to a non-ALJ position is clearly covered by the new standard, which is therefore not inconsistent with the definition in § 930.202(f).

3. One commenter suggested that the amended rule is unnecessary because the Board's decisions applying the Doyle standard have not found a constructive removal in cases involving routine management actions. This commenter suggested that the Doyle standard should be retained because it has deterred agency interference with ALJ independence. The commenter also suggested that under the new standard, sitting ALJs may, instead, challenge interference with their independence through actions based on the First Amendment in district court, with an adverse effect on judicial economy due to the loss of the Board's expertise in the decision of those cases.

The Board finds that the fact that its case law under the Doyle standard is largely made up of nonmeritorious cases is not a reason for retaining the old standard, nor does it show that the old standard has deterred improper agency actions. Moreover, in Tunik the court approved the Board's determination that it was unlikely that in enacting section 7521 Congress intended to require agencies to obtain a good cause finding from the Board before taking such routine actions as assigning cases and implementing training requirements. Tunik, 407 F.3d at 1340. The Board finds that, to whatever extent the First Amendment rights of ALJs are actionable in district court, it has no bearing on the Board's interpretation of section 7521.

4. One commenter suggested that the Doyle standard should be retained in order to permit sitting ALJs to claim constructive removal based on alleged violations of the case assignment rotation requirement in 5 U.S.C. 3105.

The Board finds that this suggestion fails to state a persuasive objection to the amendment of its regulation since the revised standard would permit consideration of an ALJ's involuntary resignation claim that is based on the agency's improper interference with his decisionmaking by assigning cases out of rotation.

5. One commenter supports the proposed amendment and urges the Board to provide upon issuance of the amended regulation that it will be applicable to pending cases.

The Board finds that retroactive application of the amended regulation would be contrary to the court's decision in Tunik, which held that the cases in that consolidated appeal were subject to the standard stated in the former regulation because it could not be repealed in an adjudication. Under Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), the Board must have express statutory authority to make a substantive rule retroactive, authority which the Board does not have. The amended regulation that the Board is issuing is such a rule because it repeals the substantive standard for constructive removal stated in the old regulation and makes effective the standard for such a removal now contained in the Board's case law.

List of Subjects in 5 CFR Part 1201

• Administrative personnel
• Actions against administrative law judges
• Actions filed by administrative law judges

For the reasons set forth in the Preamble, the MSPB is amending 5 CFR part 1201 as follows:

PART 1201—PRACTICES AND PROCEDURES

1. The authority citation for 5 CFR part 1201 is revised to read as follows:

Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.

2. Accordingly, the Board revises 5 CFR 1201.142 to read as follows:

§ 1201.142

Actions filed by administrative law judges.

An administrative law judge who alleges a constructive removal or other action by an agency in violation of 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The filing and serving requirements of 5 CFR 1201.37 apply. Such complaints shall be adjudicated in the same manner as agency complaints under this subpart.

Dated: June 8, 2006.

Bentley M. Roberts, Jr.,

Clerk of the Board.