Berlin v. Department of Labor ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
STEVEN B. BERLIN, JONATHAN C. CALIANOS,
LINDA S. CHAPMAN, RICHARD M. CLARK,
WILLIAM R. DORSEY, JENNIFER GEE, COLLEEN
A. GERAGHTY, CHRISTINE L. KIRBY, PAMELA J.
LAKES, TIMOTHY J. MCGRATH, RICHARD A.
MORGAN, RUSSELL PULVER, STEPHEN M.
REILLY, PATRICK M. ROSENOW, DANIEL F.
SOLOMON, DANIEL F. SUTTON, DREW A. SWANK,
AND THERESA C. TIMLIN,
Petitioners,
v.
DEPARTMENT OF LABOR,
Respondent.
______________________
2014-3031
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. CB-7521-13-0072-T-1, CB-7521-13-0074-T-
1, CB-7521-13-0075-T-1, CB-7521-13-0076-T-1, CB-7521-
13-0079-T-1, CB-7521-13-0080-T-1, CB-7521-13-0081-T-1,
CB-7521-13-0087-T-1, CB-7521-13-0089-T-1, CB-7521-13-
0093-T-1, CB-7521-13-0095-T-1, CB-7521-13-0098-T-1,
CB-7521-13-0100-T-1, CB-7521-13-0102-T-1, CB-7521-13-
0106-T-1, CB-7521-13-0108-T-1, CB-7521-13-0109-T-1,
and CB-7521-13-0110-T-1.
2 BERLIN v. LABOR
______________________
Decided: November 20, 2014
______________________
PAUL A. MAPES, of Walnut Creek, California, argued
for petitioners.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were STUART F.
DELERY, Assistant Attorney General, ROBERT E.
KIRSCHMAN, JR., Director, and REGINALD T. BLADES, JR.,
Assistant Director. Of counsel on the brief were JAMES V.
BLAIR, Counsel for Employment Law and KATHERINE
BREWER, Trial Attorney, Office of the Solicitor, United
States Department of Labor, of Washington, DC.
MARTIN R. COHEN, Assistant General Counsel for Lit-
igation, American Federation of Government Employees,
of Elkins Park, Pennsylvania, for amicus curiae The
American Federation of Government Employees.
GREGORY O’DUDEN, General Counsel, National Treas-
ury Employees Union, of Washington, DC, for amicus
curiae National Treasury Employees Union. With him on
the brief were LARRY J. ADKINS, Deputy General Counsel,
and MATTHEW D. ROSS, Assistant Counsel.
JOHN P. MAHONEY, Tully Rinckey, PLLC, of Washing-
ton, DC, for amicus curiae The Federal Administrative
Law Judges Conference.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
TARANTO, Circuit Judge.
BERLIN v. LABOR 3
Under 5 U.S.C. § 7521, an agency may furlough an
administrative law judge (ALJ) for 30 days or less “only
for good cause established and determined by the Merit
Systems Protection Board” in a formal adjudication. In
this case, the Board determined that the Department of
Labor had good cause for its decision to furlough its ALJs
for a particular length of time in 2013. We affirm. The
challenged furlough of ALJs, which was part of a program
of furloughs throughout the Department and indeed
throughout the federal government, was the result of a
neutral, reasonable, statute-based determination about
how to implement a government-wide budget sequester.
The Board could therefore find good cause.
BACKGROUND
The Budget Control Act of 2011, Pub. L. No. 112-25,
§§ 101–103, 125 Stat. 240, 241–46, and the American
Taxpayer Relief Act of 2012, Pub. L. No. 112-240, § 901,
126 Stat. 2313, 2370, made amendments to the Balanced
Budget and Emergency Deficit Control Act of 1985, Pub.
L. No. 99-177, title II, 99 Stat. 1038, codified in pertinent
part at 2 U.S.C. § 901 et seq. The amendments estab-
lished spending limits for agencies of the federal govern-
ment and required automatic reduction of spending
(“sequestration” or “sequester”) under certain statutory
conditions, implemented under certain directives of the
Office of Management and Budget (OMB). The 2012
Taxpayer Relief Act (§ 901(e)) specifically required the
President to issue a sequestration order on March 1, 2013,
near the middle of fiscal year 2013. 126 Stat. at 2370.
On that date, President Obama issued a sequestration
order requiring reductions in spending from most federal
budget accounts for fiscal year 2013. 78 Fed. Reg. 14,633.
The order states that each agency must administer the
spending cuts, for “each non-exempt budget account,” “in
strict accordance with the requirements” of 2 U.S.C.
§ 901a “and the specifications of [OMB’s] report of March
4 BERLIN v. LABOR
1, 2013, prepared pursuant to” § 901a(9). 78 Fed. Reg.
14,633. Section 901a mandates compliance with another
statutory provision, 2 U.S.C. § 906(k), which provides that
“the same percentage sequestration shall apply to all
programs, projects, and activities within a budget ac-
count.” 2 U.S.C. §§ 901a(8), 906(k)(2).
OMB, performing its statutory role, calculated that
the Department of Labor had to reduce spending by five
percent in a budget account called the Departmental
Management Salaries and Expenses account. Office of
Mgmt. & Budget, Exec. Office of the President, OMB
Report to the Congress on the Joint Committee Sequestra-
tion for Fiscal Year 2013 app. 41 (2013). The Department,
with OMB’s approval for sequester purposes (J.A. 520),
broke down that budget account into nine subaccounts
(known as “programs, projects, and activities,” 2 U.S.C.
§ 906(k)(2)), one of which is “Adjudication.” Based on 2
U.S.C. § 906(k)(2), the Department applied “the same
percentage” cut to all subaccounts within the account. It
then chose to apply the five-percent cut equally to the four
offices within the Adjudication subaccount, one of which is
the Office of Administrative Law Judges. 1
Those determinations led directly to the furlough re-
sult challenged here. The Office spends more than half of
its budget on salaries and a majority of the remainder on
nondiscretionary costs, such as rent. Thus, to make the
required cuts, the Office calculated that it had to furlough
all of its employees, including its ALJs, for 5.5 days. The
same methodology produced longer furloughs for many
employees in other offices covered by the Adjudication
subaccount, and the ALJs before us therefore do not
challenge their furloughs based on a comparison to other
Adjudication employees. But the methodology produced
shorter furloughs for employees covered by less salary-or-
1 A small percentage of the Office’s funding came
from a separate account subject to a 5.1% reduction.
BERLIN v. LABOR 5
rent-heavy subaccounts outside the Adjudication subac-
count (or outside the Management and Salaries Expenses
account), J.A. 40, and it is those comparatively short
furloughs that the ALJs here invoke in complaining of
their furloughs.
To furlough its ALJs, the Department first filed a
complaint with the Board on March 18, 2013. J.A. 116–
24; see 5 U.S.C. § 7521; 5 C.F.R. § 1201.137. The Board
assigned Administrative Law Judge Jordan (from the
United States Coast Guard) to conduct a hearing and
make the initial decision whether to authorize the fur-
loughs. See 5 C.F.R. § 1201.140. After discovery and a
two-day hearing in late July 2013, Judge Jordan conclud-
ed that the Department had good cause to furlough its
ALJs. Dep’t of Labor v. Avery, No. CB-7521-13-0070-T-1,
slip op. at 2–3, 39 (M.S.P.B. Aug. 20, 2013). When it came
to the length of furloughs throughout the Department,
however, Judge Jordan concluded that the Department
had to consider the “special status” of ALJs and that
doing so would require the Department to shift funds
from one subaccount to another, or otherwise reallocate
funds, so that ALJs did not receive a longer furlough than
other employees paid from the same account. Id. at 35–38
(“[A]s a special class of employee protected in their com-
pensation and tenure, [ALJs] should not be forced to bear
a greater furlough than most employees.”). On that basis,
Judge Jordan determined that the Department had good
cause to furlough the ALJs for only four days, the average
furlough length for other furloughed employees within the
Management Salaries and Expenses account. Id. at 39–
40.
The Department petitioned the full Board for review
of the initial decision under 5 C.F.R. § 1201.114, and the
ALJs cross-petitioned for review of Judge Jordan’s deci-
sions denying their motion to compel discovery and ex-
cluding certain witness testimony. The Board vacated the
initial decision, found that the Department had good
6 BERLIN v. LABOR
cause to furlough the ALJs for the full 5.5-day period, and
denied the ALJs’ cross-petition. Dep’t of Labor v. Avery,
2013 M.S.P.B. 75 ¶ 1 (Board Decision). The Board noted
its “flexible approach in which good cause is defined
according to the individual circumstances of each case.”
Id. ¶ 5. Applying that flexible approach, the Board found
that, because of the sequester-induced budget shortfall,
the Department “had sound business reasons behind its
decision to furlough” the ALJs for the full 5.5 days. Id. ¶
13. It also found “no evidence that the decision was made
for an improper reason or to interfere with the ALJs’
qualified judicial independence.” Id. Vice Chairman
Wagner dissented in part, agreeing with Judge Jordan’s
reduction of the furlough length to four days.
The ALJs timely petitioned for judicial review of the
Board’s final decision. See 5 U.S.C. § 7703(b)(1)(A). We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
A
The substantive issue presented is whether the Board
erred in concluding that the Department had “good cause”
for the challenged furloughs of the ALJs. 5 U.S.C. § 7521.
We review the Board’s decision to determine if it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; was arrived at without following
procedures required by law; or is unsupported by substan-
tial evidence. 5 U.S.C. § 7703(c). Substantial evidence is
“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)
(internal quotation marks and citation omitted).
We have observed that “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.
BERLIN v. LABOR 7
Cir. 1986). The Supreme Court has explained that an
agency can have “good cause” for an action against an
ALJ even if the ALJ did not depart from the “good behav-
ior” standard applicable to federal judges appointed under
Article III of the Constitution. Ramspeck v. Fed. Trial
Exam’rs Conference, 345 U.S. 128, 141–43 (1952). We
have also explained that an agency lacks “good cause” to
the extent it acts based “on reasons which constitute an
improper interference with the ALJ’s performance of his
quasi-judicial functions.” Brennan, 787 F.2d at 1563.
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 rulemaking and
adjudicatory authority with respect to section 7521.”
Long v. Soc. Sec. Admin., 635 F.3d 526, 534 (Fed. Cir.
2011); see Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984).
The Board here adhered to its longstanding view that
“good cause” should be defined in a case-by-case manner.
Board Decision ¶¶ 5, 6 (citing Soc. Sec. Admin. v. Long,
2010 M.S.P.B. 19 ¶ 13); see also Soc. Sec. Admin. v. Mills,
73 M.S.P.R. 463, 467–68 (M.S.P.B. 1996); Soc. Sec. Ad-
min. v. Goodman, 19 M.S.P.R. 321, 328 (M.S.P.B. 1984).
It affirmed that, to meet the good-cause standard, an
adverse action must not be an attempt to interfere, or
actually interfere, with an ALJ’s “qualified judicial inde-
pendence.” Board Decision ¶ 5 (citing Brennan, 787 F.2d
at 1563); id. ¶ 9 (“[W]hatever the reason for the action, it
cannot be for a reason that interferes with the ALJs’
qualified judicial independence.”). The Board reiterated
its position that “disparate treatment” of ALJs “must be
part of the good-cause calculus.” Id. ¶ 11; see Fed. Drug
Admin. v. Davidson, 46 M.S.P.R. 223, 226 (M.S.P.B. 1990)
(“[A]bsent any showing of disparate treatment with other
[agency] employees, we will not interfere with the agen-
cy’s management determination respecting how to struc-
ture the furlough.”). Finally, the Board applied the “good
8 BERLIN v. LABOR
cause” requirement by asking if the agency had “sound
business reasons” for its adopted furlough. Board Deci-
sion ¶ 13. That focus mirrors what the Board has said
about non-ALJ furloughs under 5 U.S.C. § 7513. See
Chandler v. Dep’t of the Treasury, 2013 M.S.P.B. 74 ¶ 8
(an agency satisfies the standard for a furlough under
§ 7513 “by showing, in general, that the furlough was a
reasonable management solution to the financial re-
strictions placed on it and that the agency applied its
determination as to which employees to furlough in a ‘fair
and even manner,’ ” quoting Clark v. Office of Pers.
Mgmt., 24 M.S.P.R. 224, 225 (M.S.P.B. 1984)).
We find nothing improper in the Board’s adherence to
those principles. The Board could reasonably proceed by
case-by-case adjudication in applying the broad and
context-dependent “good cause” standard to the wide
variety of circumstances that may arise. NLRB v. Bell
Aerospace Co., 416 U.S. 267, 294 (1974) (citing SEC v.
Chenery Corp., 332 U.S. 194, 202–03 (1947)). And the
Board reasonably interpreted “good cause” in this context
to focus on whether the Department had sound business
reasons for the challenged furlough and, relatedly, wheth-
er the furlough resulted from disparate treatment of ALJs
or from a reason inconsistent with decision-making inde-
pendence. We see no basis in the statute or in the record
of this case for reversing the Board’s conclusion that those
standards suffice to respect ALJs’ “special status.” See
Board Decision ¶9.
In deciding what the “good cause” standard requires
for ALJs in the context of a furlough of less than 30 days
under 5 U.S.C. § 7521, the Board referred to its prece-
dents interpreting (a) the standards for a furlough longer
than 30 days applicable in a reduction-in-force proceeding
under 5 U.S.C. § 3502 and (b) the standards for a furlough
of non-ALJ employees under the “efficiency of the service”
standard of 5 U.S.C. § 7513. See Board Decision ¶ 10
(citing Schroeder v. Dep’t of Transp., 60 M.S.P.R. 566, 570
BERLIN v. LABOR 9
(M.S.P.B. 1994); Chandler, 2013 M.S.P.B. 74 ¶ 9). The
Board made clear, however, that it considered its inter-
pretation of those standards as informing, but not control-
ling, its interpretation of the “good cause” standard of
§ 7521. Id. After all, the provisions, though related, are
distinct in language and procedures. We have no need to
explore the significance of the distinctions here. The
Board interpreted “good cause” in § 7521 to embody the
standards we have described, and we hold that interpre-
tation to be reasonable.
We also have no basis for reversing the Board’s con-
clusion that the challenged furloughs in this case met
those standards. The ALJs do not argue that the De-
partment lacked good cause to furlough them for some
period. Instead, they argue that the Board abused its
discretion, and lacked substantial-evidence support, in
finding that the Department had good cause to furlough
them for 5.5 days. The crux of their protest is that the
Department had no good cause for imposing longer fur-
loughs on them than on many other employees outside the
Adjudication subaccount. But the Board had ample
grounds to conclude that the Department had good cause
for its decisions that produced that result.
A difference in furlough lengths alone does not consti-
tute an improper outcome under the good-cause standard.
The reason for the durational difference matters. Here,
no evidence exists that the difference resulted from any
determination that relied on ALJ status to impose a
longer furlough, let alone a determination aimed at or
causing an impairment of decision-making independence.
See Brennan, 787 F.2d at 1563 (agency actions “based on
reasons which interfere with the quasi-judicial functions”
of ALJs cannot stand); cf. Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993) (“Whatever the employer’s deci-
sionmaking process, a disparate treatment claim cannot
succeed unless the employee’s protected trait actually
played a role in that process and had a determinative
10 BERLIN v. LABOR
influence on the outcome.”). Where there is no such
evidence, there is no “disparate treatment” or other
impropriety when different furloughs are simply the
result of following neutral, sound “business reasons.”
That is the situation here. The Department was un-
der tight constraints in carrying out the required budget
sequester. By order (in compliance with statutory re-
quirements), the Department had to cut five percent in
spending from the Management Salaries and Expenses
account by the end of fiscal year 2013. The Department
then made a neutral determination that it would apply
that percentage equally to each subaccount (program,
project, or activity) within the account.
That determination was a reasonable one. Indeed, it
was required by 2 U.S.C. § 906(k)(2), which states that,
“[e]xcept as otherwise provided, the same percentage
sequestration shall apply to all programs, projects, and
activities within a budget account.” The provision further
clarifies, as relevant here, that the “programs, projects,
and activities” are the ones “delineated in the appropria-
tion Act or accompanying report for the relevant fiscal
year covering that account.” 2 U.S.C. § 906(k)(2). For the
Department of Labor, the 2013 appropriation acts carry
forward the appropriations from the 2012 act. Continuing
Appropriations Resolution, 2013, Pub. L. No. 112-175,
§ 101, 126 Stat. 1313, 1313 (2012); Consolidated and
Further Continuing Appropriations Act, 2013, Pub. L. No.
113-6, § 1101, 127 Stat. 198, 412. The relevant portion of
the 2012 act covers the Management Salaries and Ex-
penses account, but does not itself delineate the Adjudica-
tion subaccount. See Consolidated Appropriations Act,
2012, Pub. L. No. 112-74, 125 Stat. 786, 1061. But the
accompanying budget report—to which § 906(k)(2) points
in such circumstances—identifies all nine of the subac-
counts the Department used for its sequester planning,
including Adjudication. H.R. Rep. No. 112-331, at 1173
(2011) (Conf. Rep.).
BERLIN v. LABOR 11
Perhaps the Department of Labor, after making the
required cuts, had some discretion “to realign funds to
protect mission priorities,” as OMB suggested “may” be
true for “some agencies.” J.A. 1152. Even if that was so,
however, the Department could reasonably decide not to
offset the cuts here by shifting funds from another de-
partmental function to the Office of ALJs.
As the Board concluded, there is no statutory or other
basis for forcing the Department to give the ALJ function
priority over other departmental functions. See Board
Decision ¶ 10 (“The Board will not scrutinize an agency’s
decision . . . in a manner that second-guesses the agency’s
assessment of its mission requirements and priorities.”).
Moreover, the ALJs cannot claim that shifting funds to
their Office was required by an established departmental
practice. The only fund-shifting practice identified here
was limited to allowing an organizational unit that con-
trolled multiple subaccounts to shift funds from one to
another in some circumstances. 2 J.A. 532–33, 670–71.
But there is no evidence that the Office of ALJs, which is
itself an organizational unit within the Department,
controlled multiple subaccounts, let alone subaccounts it
could tap to reallocate funds that would have increased
the Office’s resources and thereby shortened furloughs.
There was no evidence of a departmental practice to allow
fund shifting in circumstances relevant to the ALJs’
complaint here.
Applying the five-percent cut to the Adjudication sub-
account produced the challenged length of ALJ furloughs
after one further step, namely, equal allocation among the
organizational units funded from the Adjudication subac-
count—a step that the ALJs do not challenge (their fur-
2 The Department is organized into roughly thirty
organizational units. See Organizational Chart, U.S.
Dep’t of Labor,
http://www.dol.gov/dol/aboutdol/orgchart.htm.
12 BERLIN v. LABOR
loughs being generally similar to or shorter than fur-
loughs imposed on others within the various Adjudication
units). It is undisputed that a high share of the ALJ
Office’s budget is tied to non-discretionary spending and
salaries, so that employee salaries for that Office had to
bear a higher portion of the five-percent cut than in
organizational units funded from subaccounts with a
greater share of non-salary, discretionary spending. And
it is undisputed that following this neutral method pro-
duced the 5.5-day furlough for the ALJs before us.
B
In addition to substantively challenging the “good
cause” determination, the ALJs challenge the Board’s
upholding of Judge Jordan’s denial of their motion to
compel discovery and exclusion of certain witness testi-
mony. We have required a harmful abuse of discretion
before overturning a Board procedural decision on discov-
ery or admissibility of evidence. Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1378–79 (Fed. Cir. 1988). We find
no such abuse in this case.
The discovery requests were broad and not at all par-
ticularized to the decision-makers or their decisions
leading to the furloughs. 3 The ALJs also did not set out
with particularity why individual discovery requests
should be granted, as a regulation requires. See 5 C.F.R.
§ 1201.73(c)(1). Moreover, there is no hint of any improp-
er motivation that would suggest the need for follow-up
inquiries, and for the reasons explained, the agency
determination supporting the challenged action here is
readily seen to be neutral, reasonable, and consistent with
3 For example, Request for Production 6 sought
“[a]ll documents prepared after January 1, 2009, regard-
less of source, related to the activities or performance of
the [Office] including but not limited to documents evalu-
ating, criticizing, or questioning the actions or judicial
decisions of the [Office].” J.A. 317.
BERLIN v. LABOR 13
past practice and statutory directives on its face. In these
circumstances, the Board committed no harmful abuse of
discretion in upholding Judge Jordan’s denial of the
requests.
There was likewise no abuse in the Board’s upholding
of Judge Jordan’s refusal to allow testimony by current
ALJs about their perceptions of how their work affects the
Department’s core mission and how public opinion of the
ALJs’ judicial independence might be altered by a fur-
lough. Testimony about the importance of ALJ activities
to the Department’s missions is, at a minimum, hardly
needed; there is no dispute about that issue, and such
testimony would not compel the Board to second-guess the
Department’s decision about how to treat its multiple
missions. Moreover, general opinion testimony about the
effect of furloughs on public opinion of ALJs’ judicial
independence can readily be rejected as simply too specu-
lative. J.A. 396. The exclusion of such testimony also has
not been shown to be harmful under the standards for
assessing good cause that the Board adopted and that we
have upheld.
CONCLUSION
For those reasons, we affirm the decision of the Merit
Systems Protection Board.
AFFIRMED