Shapiro v. Social Security Administration , 800 F.3d 1332 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
MARK SHAPIRO,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2014-3113
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-7521-11-0024-T-1.
______________________
Decided: September 1, 2015
______________________
BONNIE J. BROWNELL, The Brownell Law Firm, PC,
Washington, DC, argued for petitioner. Also represented
by DONALD ROBERT DEPRIEST, CHRISTOPHER R.
LANDRIGAN.
ERIC PETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before LOURIE, LINN, and HUGHES, Circuit Judges.
2 SHAPIRO v. SSA
HUGHES, Circuit Judge.
Mark Shapiro appeals the Merit Systems Protection
Board’s finding of good cause to remove him from his
position as an administrative law judge. Because the
Board did not err in concluding that Mr. Shapiro’s produc-
tion was dramatically lower than similarly situated ALJs,
and that this failure to manage his caseload constitutes
good cause for removal, we affirm.
I
Mr. Shapiro began working for the Social Security
Administration as an administrative law judge in the
New York Hearing Office in 1997. As early as 1998, the
Agency informed Mr. Shapiro that his performance was
lacking. In March and April 1998, the Agency informed
Mr. Shapiro that he was scheduling too few hearings and
his total number of case dispositions was below expecta-
tions. Mr. Shapiro’s poor performance continued and, in
early 2000, “a tremendous backlog” of cases in his docket
became apparent. Accordingly, the Agency began to take
an active role in assisting Mr. Shapiro, including review-
ing cases, drafting decisions, and returning them for
signature. Mr. Shapiro’s performance, however, did not
improve. In 2003, Agency management provided continu-
ing assistance, but Mr. Shapiro issued only a limited
number of dispositions, causing his backlog to grow
deeper.
From March 2006 to March 2007, Mr. Shapiro re-
ceived more counseling from then-Acting Region II Chief
Administrative Law Judge Wright. J.A. 338–39. ALJ
Wright eventually discontinued these meetings in March
2007, as he did not see an adequate improvement in
Mr. Shapiro’s productivity. J.A. 341.
In February 2007, the New York Hearing Office Chief
ALJ sent Mr. Shapiro a memorandum outlining his
concern over Mr. Shapiro’s failure to process cases in a
SHAPIRO V. SSA 3
timely fashion and to produce an adequate number of
decisions. J.A. 293–94. The letter chronicled
Mr. Shapiro’s history of poor performance, and indicated
that he had over 70 percent of the 1000-day-old cases in
the New York Office. J.A. 294 (72.8%); J.A. 332 (over
75%).
In October 2007, the then-Chief ALJ for the Agency,
Frank Cristaudo, sent a memorandum “asking each of our
[ALJs] to manage their dockets in such a way that they
will be able to issue 500–700 legally sufficient decisions
each year.” J.A. 281. In an effort to facilitate meeting
this goal, the Acting Regional Chief Judge sent
Mr. Shapiro a memorandum emphasizing Chief ALJ Cris-
taudo’s message that each ALJ must “manag[e] his/her
docket effectively.” J.A. 297. As such, the Acting Region-
al Chief Judge directed Mr. Shapiro to attend a series of
formal meetings with ALJ Wright. Id.
During these meetings, ALJ Wright and Mr. Shapiro
engaged in “a frank discussion of [Mr. Shapiro’s] low
disposition productivity, recommended efficiencies, and a
clear explanation of management’s productivity expecta-
tions . . . .” J.A. 174; J.A. 174–80 (summarizing contents
of each meeting). As found by the presiding ALJ below,
the “intent and substance of each ‘improvement meeting’
was essentially the same: [Administrative Law] Judge
Wright and [Mr. Shapiro] discussed [Mr. Shapiro’s] cases
and why many were lingering in certain pre-or-post
hearing statuses without resolution or action.” J.A. 180.
Mr. Shapiro’s productivity, however, did not material-
ly change following the improvement meetings. And for
Fiscal Years 2008, 2009, and 2010, Mr. Shapiro disposed
of drastically fewer cases as compared to his peers in the
New York Hearing Office and across the entire Region II:
4 SHAPIRO v. SSA
FY 2008 FY 2009 FY 2010
Dispositions Dispositions Dispositions
Mr. Shapiro 149 122 111
New York 567 611 630
Hearing
Office (Aver-
age)
Region II 613 608 622
(Average)
J.A. 254; J.A. 256–58. Thus, in those three years, there
was a disparity of over 400 cases from the average.
Mr. Shapiro’s supervisor concluded that “despite the
extraordinary efforts to assist him, to mentor him, [and]
to train him,” Mr. Shapiro could not manage his docket to
meet expectations. J.A. 355–56. Accordingly, pursuant to
5 U.S.C. § 7521, the Agency filed a complaint with the
Board seeking a finding of good cause to remove
Mr. Shapiro based on two charges: (1) “unacceptable
performance” and (2) “neglect of duty.” Charge I contains
three separate specifications relating to the 2008–2010
time period: (1) failure to provide timely hearings; (2)
failure to provide timely dispositions; and (3) failure to
“acceptably manage [ ] cases.” J.A. 39. Charge II con-
tained substantially similar specifications in the context
of a “Neglect of Duty” charge.
Pursuant to 5 U.S.C. § 3105 and 5 C.F.R. § 1201.140,
an ALJ was designated to conduct a hearing and issue a
recommendation regarding the complaint. The presiding
ALJ heard six days of evidence and argument across two
sessions, with a break in between to permit Mr. Shapiro
an opportunity to conduct more discovery. During the
hearing, the Agency presented evidence of the average
SHAPIRO V. SSA 5
number of case dispositions for ALJs in Mr. Shapiro’s
office and across the region. This evidence was supported
by testimony from ALJs who reviewed Mr. Shapiro’s cases
and concluded that his cases were no different than theirs
or any other case before the Agency.
After the hearing, the presiding ALJ found that the
Agency failed to prove specifications 1 and 2 because the
Agency had not established “an enforceable timeliness
standard . . . attributable solely to a judge.” J.A. 156. In
other words, the Agency could not prove that Mr. Shapiro
“was solely responsible for the processing times refer-
enced in the cases cited in the . . . complaint.” J.A. 156;
see also J.A. 166. As for the third specification, the pre-
siding ALJ found that the Agency showed by a prepon-
derance of the evidence that Mr. Shapiro failed to
“acceptably manage his cases” and that such conduct
constituted good cause for removal.
The Board found that the presiding ALJ correctly de-
termined that the Agency defined the phrase “acceptably
manage” in the third specification of Charge I by compar-
ing the number of cases Mr. Shapiro either scheduled for
hearing or disposed of with the cases scheduled or dis-
posed of by his peers in the New York Hearing Office and
Region II. J.A. 6–7. The Board found that even if a
portion of Specification 3 related to the timeliness of
Mr. Shapiro’s decision, Mr. Shapiro had failed to show
that the presiding ALJ erred by sustaining the other
portions of the specification showing a failure to manage
his cases acceptably. Thus, the Board sustained Charge I
and found good cause for the removal of Mr. Shapiro.
Mr. Shapiro appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
“Our review of Board decisions is limited. We may on-
ly reverse a Board decision if we find the decision to be
6 SHAPIRO v. SSA
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed .Cir.
2010) (citing 5 U.S.C. § 7703(c)). “Under the substantial
evidence standard, this court reverses the Board’s deci-
sion only ‘if it is not supported by such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.’” Abrams v. Soc. Sec. Admin., 703 F.3d 538,
542 (Fed. Cir. 2012) (quoting Haebe v. Dep’t of Justice, 288
F.3d 1288, 1298 (Fed. Cir. 2002)).
The Agency may remove Mr. Shapiro “only for good
cause established and determined by the [Board] . . . .”
5 U.S.C. § 7521(a). “Congress intentionally failed to
define ‘good cause’” leaving it “to be given meaning
through judicial interpretation.” Brennan v. Dep’t of
Health & Human Servs., 787 F.2d 1559, 1561–62 (Fed.
Cir. 1986). “And we have made clear that, as a general
matter, we defer to the Board’s reasonable interpretation
of ‘good cause’ because ‘the Board has exclusive rulemak-
ing and adjudicatory authority with respect to section
7521.’” Berlin v. Dep’t of Labor, 772 F.3d 890, 894 (Fed.
Cir. 2014) (quoting Long v. Soc. Sec. Admin., 635 F.3d
526, 534 (Fed. Cir. 2011)). Because Mr. Shapiro does not
contest that “unacceptable performance” or a lack of
production can constitute good cause for removal, we need
only determine whether substantial evidence supports the
Board’s conclusion that the Agency showed by a prepon-
derance of the evidence that this charge was met. See
Brennan, 787 F.2d at 1561.
A
Mr. Shapiro first argues that the Agency failed to es-
tablish “good cause” for removal because the Agency did
not prove the precise charge asserted. However, this
argument is predicated on the mistaken assumption that
removal of an ALJ for “good cause” under § 7521 must
SHAPIRO V. SSA 7
comply with the precedent and requirements of § 7512
cases governing removal of employees under the “efficien-
cy of the service” standard. But that is plainly not the
case. See 5 U.S.C. § 7512(E) (“This subchapter . . . does
not apply to . . . an action initiated under section 1215 or
7521 of this title.”). Under the governing regulations, a
complaint seeking removal of an ALJ need only “describe
with particularity the facts that support the proposed
agency action,” 5 C.F.R. § 1201.138, and the Board may
only discipline an ALJ for “good cause,” id. at
§ 1201.140(b). This is in contrast to the regulations
governing § 7512 actions, which require a notice to “state
the specific reason(s) for the proposed actions,” 5 C.F.R.
§ 752.404(b)(1), and state that the agency may “consider
only the reasons specified in the notice of the proposed
action . . . ,” id. at § 752.404(g)(1). Thus, in the context of
§ 7521, “[t]he purpose of an agency’s notice of charges is to
put an employee on notice of the allegations against him
in sufficient detail to apprise him of the allegations he
must refute or acts he must justify.” Brennan, 787 F.2d
at 1561.
Here, Mr. Shapiro had ample notice of the charges
brought against him. Charge I, labeled “Unacceptable
Performance,” plainly put Mr. Shapiro on notice that his
“performance has been unacceptable, in that . . . [i]n or
about FY2008–2010, [he] did not acceptably manage his
cases.” J.A. 242. And Mr. Shapiro testified that he un-
derstood this to mean that the Agency was seeking to
remove him from his position due to his perceived mis-
management of cases, including his failure to “produce
very many decisions.” J.A. 365. The Board, on the presid-
ing ALJ’s recommendation, found good cause for removal
because Mr. Shapiro was unable to effectively manage his
docket. There is no indication that this did not comply
with the governing regulations. And given that the
hearing was recessed to allow for Mr. Shapiro to conduct
additional discovery, it is beyond debate that Mr. Shapiro
8 SHAPIRO v. SSA
was “afforded notice ‘both of the charges and of the em-
ployer’s evidence’ and an ‘opportunity to respond’ before
[he was] removed from employment,” as required to
satisfy due process. Ward v. U.S. Postal Serv., 634 F.3d
1274, 1279 (Fed. Cir. 2011) (citing Stone v. Fed. Deposit
Ins. Corp., 179 F.3d 1368, 1374–76 (Fed. Cir. 1999)).
B
Mr. Shapiro next argues that the Board erred in its
good cause determination by relying on a comparison of
his production statistics to regional averages, in contra-
vention of the rule announced by the Board in Social
Security Administration v. Goodman, 19 M.S.P.R. 321,
331 (1984). Although Goodman was decided over thirty
years ago, we have not yet had occasion to review its rule
beyond noting that we are not bound by it. See, e.g.,
Abrams v. Soc. Sec. Admin., 703 F.3d 538, 544 n.2 (Fed.
Cir. 2012). And we do not adopt it today. We agree with
Goodman to the extent that it requires a proper founda-
tion for the type of comparative statistics employed here.
But to the extent Goodman requires some type of height-
ened evidentiary proof before an agency can rely upon
comparative production statistics to prove good cause for
removal, we decline to follow it. When an agency estab-
lishes that an individual ALJ’s case disposition rate is so
significantly lower than the rate of similarly situated
ALJs in his own region, that evidence, absent some con-
tradictory showing that the statistics do not present a
valid comparison, can support a finding of good cause.
In Goodman, the Board was concerned with the use of
comparative statistics to establish that an ALJ’s “perfor-
mance was sufficiently below a reasonable level of produc-
tivity to warrant his removal.” Goodman, 19 M.S.P.R. at
331–32. The Board found that, absent evidence that “the
same amount of time was required to render most final
dispositions” and “the complexities presented by the mix
of cases assigned to the respondent mirrored the complex-
SHAPIRO V. SSA 9
ities of those included” in the compared disposition rates,
such a comparison would be based only on speculation
and therefore could not support a finding of good cause.
Id. Because “no evidence was offered regarding the time
required to render dispositions or comparing respondent’s
assignments with those included in the national average,”
the Board found that the agency failed to meet its burden
of establishing good cause for removal. Id. at 332.
Similarly, in Social Security Administration v. Bren-
nan, 19 M.S.P.R. 335 (1984), decided the same day as
Goodman, the Board rejected evidence that an ALJ’s case-
disposition rate was “not within the range of the average
productivity of all ALJs employed by the agency.” Id. at
337 n.2. This was because “the national average included
different types of dispositions, such as dismissals, short
form reversals, and affirmances both on the written
record and after a hearing” and there was no evidence
presented that the ALJ’s caseload mirrored that case
makeup. Id. at 337.
Goodman and its progeny have been described as a
“pyrrhic victory for the [Agency]” because it “won the
right to bring charges against low producing ALJs but
was handed a virtually insurmountable burden of proof.”
Jeffrey S. Lubbers, The Federal Administrative Judiciary:
Establishing an Appropriate System of Performance
Evaluation for ALJs, 7 Admin. L.J. Am. U. 589, 599–600
(1994). The proceedings below reflect that sentiment.
The record reveals a long history of poor performance and
the Agency’s “unprecedented and extraordinary efforts” to
assist Mr. Shapiro. See, e.g., J.A. 143, 209. Indeed, the
presiding ALJ found the Agency “demonstrated extraor-
dinary patience and expended extraordinary effort to
assist [Mr. Shapiro] . . . in the performance of his duties.”
J.A. 211. Similarly, counsel for the Agency stated at oral
argument that the Agency delayed initiating removal
proceedings because of a perception that Goodman did
not, in fact, permit the removal of an ALJ for productivity
10 SHAPIRO v. SSA
reasons. 1 It is therefore not surprising that, when it came
time to evaluate the statistics presented during the
removal proceedings, the presiding ALJ found: “Doubt-
less because of Goodman, the Agency went to exceptional
lengths to establish that during [the relevant time peri-
od], the cases assigned to [Mr. Shapiro] were essentially
the same or similar, in terms of file size, complexity, legal
and evidentiary and/or factual issues, and time require-
ments as those cases assigned to all other judges in the
New York City and Region II hearing offices.” J.A. 187.
No fewer than four ALJs provided testimony that they
reviewed Mr. Shapiro’s docket during the relevant
timeframe. The region chief “personally re-
viewed . . . [Mr. Shapiro’s] assigned cases” and concluded
that the cases were the same or similar to those handled
by other judges within the region. J.A. 187.
Mr. Shapiro’s supervisor gave similar testimony, testify-
ing that the Agency’s ALJs “see the same types of cases
‘over and over again.’” J.A. 188 (citation omitted). In-
deed, Mr. Shapiro himself conceded that “I have no reason
to think that any of us [ALJs] are given a different type”
of case. J.A. 364. Especially in light of this concession, it
is particularly inappropriate to require the Agency to
undergo the herculean effort of providing testimony from
four ALJs that an ALJ’s caseload was the same or similar
to that of any other ALJ in the region before the fact
finder can rely on any comparative statistics, as the
Agency perceived to be required by Goodman.
We agree that there must be a showing that the prof-
fered production statistics are relevant to the determina-
tion—i.e., that they reflect the average disposition rate for
1 Oral Argument at 19:13, Shapiro v. Soc. Sec. Ad-
min., No. 14-3113 (May 7, 2015), available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/14-3113/all.
SHAPIRO V. SSA 11
a particular region across the same time period. But in
extreme cases like this, where Mr. Shapiro’s production is,
at best, roughly a quarter of that performed by the rest of
the ALJs in his region, that standing alone is highly
relevant and potentially preponderant evidence that he
failed to manage his cases acceptably. Absent some
suggestion that the character of an individual ALJ’s
docket dramatically differs from that of his colleagues, or
any other factors that might undermine the reliability of
the comparative statistics, the Board is free to give such
statistics appropriate weight when determining whether
the Agency has met its burden to prove the charges al-
leged by a preponderance of the evidence. See Brennan,
787 F.2d at 1561.
In this case, the presiding ALJ assessed the credibil-
ity of the witnesses and concluded that the cases assigned
to Mr. Shapiro were “essentially the same or similar
. . . as those cases assigned to all other judges in the New
York City and/or Region II hearing offices.” J.A. 189. The
Board adopted these findings, recognizing that they were
based in part on a credibility determination. J.A. 8–9; see
also J.A. 15. We see no reason to deviate from these
findings. See, e.g., Long, 635 F.3d at 530–31. 2
Mr. Shapiro also argues that even if the identified
cases are the same or similar, the comparative statistics
relied on by the Board are flawed because they ignore the
role played by support staff in the rate of disposition; and
they fail to account for the fact that Mr. Shapiro had far
fewer cases than the average ALJ used in the comparison.
2 Because we find that the comparative statistics
relied on by the Board provide substantial evidence for a
finding of good cause in this case, we decline to reach
Mr. Shapiro’s invitation to require agencies to prove
specific examples of “poor case management.”
12 SHAPIRO v. SSA
Neither of these arguments is sufficient to undermine the
Board’s findings.
First, Mr. Shapiro did not identify any evidence of
record suggesting his support staff played a major role in
his decreased performance numbers. At best, there is
some evidence in the record suggesting that support staff
played a role in the timely disposition of cases. But
nothing in the record provides a legally sufficient basis for
overturning the presiding ALJ’s finding that timeliness is
not necessarily tied to production numbers. J.A. 171 n. 29
(“Although it might be anecdotally true that an ALJ who
is untimely in scheduling hearings or producing disposi-
tions might also schedule fewer hearings or produce fewer
dispositions, one does not necessarily follow the other.”).
Moreover, even if Mr. Shapiro were correct that support
staff played a role in his inability to manage his docket,
there is no evidence in the record to support an assump-
tion that his support staff was so far below the norm as to
account for a disparity of over 400 cases from the average
for three straight years. Indeed, as the Board recognized,
Mr. Shapiro conceded that “because of his techniques and
approach to case processing, he might be able to produce
only 200 cases per year, far below the [Agency’s] goal of
500-700 dispositions per administrative law judge per
year.” J.A. 6–7.
Second, even if there were a bottleneck caused by
support staff, the Board did not disturb the presiding
ALJ’s finding that “a prudent ALJ, aware that staff
deficiencies contributed to slow case development and a
low disposition rate, should ask for additional cases to
compensate for those delays . . . .” J.A. 180 n.35. And, as
a result of the numerous counselling sessions and im-
provement efforts by the Agency, Mr. Shapiro was no
doubt aware of the Agency’s expectation that he should
have decided more cases per year. But during these
sessions, Mr. Shapiro only once asked for additional cases.
The Agency complied but his production numbers contin-
SHAPIRO V. SSA 13
ued to be unacceptable. Thus, substantial evidence
supports the Board’s adoption of the presiding ALJ’s
conclusion that “even if [Mr. Shapiro] had been given a
full complement of cases, he could not (or would not) have
been able to meet the desired quantity.” J.A. 195; J.A. 6–
7.
III
We find no error in the Board’s removal of
Mr. Shapiro based on a charge of “unacceptable perfor-
mance.” The Board’s decision is supported by substantial
evidence. Moreover, the Agency properly used compara-
tive statistics in this case to establish that Mr. Shapiro’s
performance was substantially below that of his peers.
And, the Board complied with the governing regulations,
as Mr. Shapiro was given adequate notice of the charges
alleged along with an opportunity to respond. According-
ly, the Board’s decision to remove Mr. Shapiro for good
cause is affirmed.
AFFIRMED