William Boham v. Social Security Administration , 883 F.2d 1026 ( 1989 )

883 F.2d 1026

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
William BOHAM, Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION, Respondent.

No. 89-3057.

United States Court of Appeals, Federal Circuit.

July 17, 1989.

Before NIES, BISSELL and MICHEL, Circuit Judges.

PER CURIAM.

1

William Boham, an administrative law judge, appeals the decision of the Merit Systems Protection Board (board), 35 MSPR 540 (1988), authorizing the Social Security Administration (agency) to suspend Boham for up to seventy-five days for refusal to comply with the agency's reasonable orders concerning the scheduling and hearing of two dockets of cases in cities remote from his normal station. We affirm.

OPINION

2

Pursuant to 5 U.S.C. Sec. 7521(a) (1982), an agency may suspend an administrative law judge but "only for good cause established and determined by the ... Board on the record after opportunity for hearing before the Board." And in no event may the agency's action undermine the decisional independence of the judge. "Whether the charge is based on reasons which interfere with the quasi-judicial function is a question of fact and must be answered on a case by case basis." Brennan v. Department of Health and Human Services, 787 F.2d 1559, 1563 (Fed.Cir.), cert. denied, 479 U.S. 985 (1986). The board here decided that the agency acted reasonably because it had the authority to order its administrative law judges to travel to hear cases, because there was no valid reason for it not to assign such cases to Boham, and because such an order did not interfere with his quasi-judicial function.

3

Our review of the board's decision authorizing Boham's suspension is limited to whether the board's decision is:

4

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

5

(2) obtained without procedures required by law, rule, or regulation having been followed; or

6

(3) unsupported by substantial evidence.

7

5 U.S.C. Sec. 7703(c) (1982); Brennan, 787 F.2d at 1563.

8

We conclude that the board's decision is not arbitrary and capricious or otherwise unlawful, was not procedurally incorrect, and was supported by substantial evidence. Moreover, the order did not undermine petitioner's decisional independence. All Boham's remaining constitutional and other arguments have been considered by the court and determined to be without merit.

9

Finally, the seventy-five day suspension authorized by the board was not so lengthy as to constitute an abuse of discretion, particularly since it was based on two separate instances of insubordination, and the Recommended Decision, adopted as modified by the board, reasonably applied the applicable Douglas factors to Boham.