Association of Administrative Law Judges v. Colvin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1953
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, JUDICIAL
COUNCIL NO. 1, IFPTE, AFL-CIO & CLC, et al.,
Plaintiffs-Appellants,
v.
CAROLYN W. COLVIN, Acting Commissioner of
Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 2925 — Sharon Johnson Coleman, Judge.
____________________
ARGUED DECEMBER 9, 2014 — DECIDED JANUARY 23, 2015
____________________
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The Association of Administrative
Law Judges (its cumbersome official name is given in the
caption) is a union that, so far as relates to this case, repre-
sents the Social Security Administration’s administrative law
judges in collective bargaining with the Administration,
pursuant to the Federal Labor-Management Relations Act, 5
2 No. 14-1953
U.S.C. §§ 7101 et seq. The Association, together with three
administrative law judges employed by the Social Security
Administration, are the plaintiffs in this suit, which, though
the named defendant is the head of the Administration, is
really a suit against the Administration itself because she is
being sued in her official capacity.
The plaintiffs contend that, by requiring its administra-
tive law judges to decide at least 500 social security disability
cases a year the Administration has interfered with the ad-
ministrative law judges’ decisional independence, in viola-
tion of the Administrative Procedure Act, which provides
that when conducting a hearing an administrative law judge
is not subject to direction or supervision by other employees
of the agency that he is employed by and may not be as-
signed duties inconsistent with his duties and responsibili-
ties as an administrative law judge. 5 U.S.C. §§ 554(d)(2),
3105.
In October 2007 the Social Security Administration’s
chief administrative law judge issued a directive setting as a
“goal” for the administrative law judges that each one
“manage their docket in such a way that they will be able to
issue 500–700 legally sufficient decisions each year.” (When
the directive was issued, 56 percent of the administrative
law judges were deciding fewer than 500 cases a year.) Alt-
hough it is described as a goal, the plaintiffs claim in their
37-page, 126-paragraph complaint that the Administration
has taken formal and informal disciplinary measures to en-
force it, so that it is in effect an enforceable and enforced
quota. The purpose of the goal or quota is to reduce the
backlog of disability cases.
No. 14-1953 3
The district court dismissed the complaint for want of
subject-matter jurisdiction, holding that the Civil Service Re-
form Act of 1978 (sections of which are scattered throughout
title 5 of the U.S. Code) precludes the plaintiffs’ resort to the
Administrative Procedure Act. The Civil Service Reform Act
creates remedies for “prohibited personnel practices” taken
against federal employees, and defines “personnel practices”
to include “significant change in duties, responsibilities, or
working conditions.” 5 U.S.C. §§ 2302(a)(1), (2)(A)(xii), (b).
Subsection (b) has a long list of the prohibited personnel
practices, most of which are various types of discrimination.
The district judge ruled that the plaintiffs were alleging a
“significant change in duties, responsibilities, or working
conditions,” and if this is correct, their exclusive remedy is
under the Civil Service Reform Act. It is correct. Increasing
an employee’s production quota changes his or her duties
and responsibilities, and therefore working conditions. But
the plaintiffs have no remedy under that Act either, even if
they’re right that the challenged order is a quota rather than
a goal, because the Act does not prohibit an increase in a
production quota unless the increase violates a prohibition
listed in 5 U.S.C. § 2302(b), and the increase challenged in
this case does not.
The plaintiffs argue that because it takes less time for an
administrative law judge to award social security disability
benefits than to deny benefits, because an award is not judi-
cially appealable and therefore the administrative law judge
doesn’t have to be as careful in his analysis of the disability
claim (doesn’t, in short, have to try to make his decision ap-
peal proof), the effect of the quota (as we’ll call the “goal,”
thus giving the plaintiffs the benefit of the doubt) is to in-
duce administrative law judges to award more benefits:
4 No. 14-1953
were it not for the quota, they would deny benefits whenev-
er they thought the applicant wasn’t entitled to them under
the law, even if making that determination took a lot of time.
The argument is thus that the quota alters the administrative
law judges’ preferred ratio of grants to denials of benefits
and by doing so infringes their decision-making independ-
ence.
The argument would have merit if the Social Security
Administration had imposed the quota because it wanted a
higher rate of benefits awards, but that is not contended. If
the result of the quota is that the percentage of such awards
has risen—and in fact there is evidence that the administra-
tive law judges who decide the most cases per year also
award benefits in a higher percentage of their cases than do
the administrative law judges who decide fewer cases per
year—this is not contended to be an aim of the quota, but an
unintended and presumably unwanted byproduct. Because
the social security disability insurance trust fund is on the
verge of being exhausted, see Rachel Greszler, “Social Secu-
rity Disability Insurance Trust Fund Will Be Exhausted in
Just Two Years: Beneficiaries Facing Nearly 20 Percent Cut
in Benefits,” Aug. 1, 2014 (The Heritage Foundation, Re-
search), www.heritage.org/research/reports/2014/08/social-se
curity-disability-insurance-trust-fundwill-be-exhausted-in-ju
st-two-years-beneficiaries-facing-nearly-20-percent-cut-in-be
nefits, the Social Security Administration is under pressure
to reduce, not increase, the aggregate disability benefits that
its administrative law judges award—which in 2012 was
$137 billion. U.S. Social Security Administration, Office of
Retirement and Disability Policy, Annual Statistical Supple-
ment, 2013, “Highlight and Trends,” www.ssa.gov/
policy/docs/statcomps/supplement/2013/highlights.html.
No. 14-1953 5
(Both websites were visited on Jan. 10, 2015.) The aim of the
quota is to speed up decision-making rather than to prod
administrative law judges to grant more applications for
disability benefits.
Of course any change in work duties, responsibilities, or
working conditions might affect an administrative law
judge’s decision-making. Beyond some point, increasing a
worker’s quota is going to induce him to spend less time on
each task. If he is a worker on a poultry processing assembly
line and the conveyor belt that carries the chickens to his
work station for deboning is speeded up, he will spend less
time deboning each chicken than he might think desirable to
make sure no bits of bone are left in the chicken when it
leaves his work station on the conveyor belt. In other words,
the quality of his output would decline. Yet he would not be
heard to claim that his decisional independence was being
compromised. His situation would parallel that of the ad-
ministrative law judges. The time pressure on him would
result in a reduction in the quality of his work. Similarly, the
plaintiffs allege that because of the quota, the quality of the
administrative law judges’ work decreases because they
grant benefits in cases in which, had they more time, they
would have denied benefits; the quota thus affected their de-
cision-making.
Suppose the Social Security Administration hired more
administrative law judges, thus reducing the workload of
each one. With less pressure to grant benefits in order to
make the quota, the administrative law judges might, be-
cause they were spending more time on each case, increase
the fraction of benefit denials. But who would argue that in-
6 No. 14-1953
creasing a work force is an actionable interference with the
workers’ decisional independence?
In the 1960s and 1970s there were very steep increases in
federal court caseloads, and increases in the number of
judgeships lagged. So each judge had to work harder. Maybe
some judges responded by dismissing more cases earlier
than they would have preferred to do. Would this have
meant that by failing to increase the number of judges in
proportion to the increase in caseload, the government was
interfering with federal judges’ decisional independence?
The answer is no, and it is no here as well, and were it oth-
erwise the courts would be flooded with cases brought by
civil servants complaining that, as an incidental and unin-
tended effect of a change in their working conditions, they
had decided to reduce the amount of effort they devoted to
each task they were assigned. An incidental and uninten-
tional effect of a change in working conditions is not action-
able under the Administrative Procedure Act.
We are mindful that the District of Columbia Circuit, in
Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013), went even
further, ruling that any action alleged to interfere with an
administrative law judge’s decisional independence is a per-
sonnel action governed exclusively by the Civil Service Re-
form Act even though that Act provides no remedy for per-
sonnel actions that interfere—even that intentionally inter-
fere—with decisional independence. That ruling, if sound,
would nullify the express protection of such independence
in the Administrative Procedure Act. We doubt that it’s
sound but need not pursue the issue in this case. The other
cases cited in Judge Ripple’s concurring opinion do not in-
volve claims relating to the infringement of decisional inde-
No. 14-1953 7
pendence. But we are mindful of his suggestion that admin-
istrative law judges whose decisional independence is inter-
fered with by their superiors might have a constitutional
remedy. Although the suggestion opens up a rather frighten-
ing vista of constitutional claims by administrative law
judges employed by the federal government, of whom some
1400 are employed by the Social Security Administration
alone, we can imagine a case in which a change in working
conditions could have an unintentional effect on decisional
independence so great as to create a serious issue of due
process. Suppose that solely for the sake of administrative
efficiency the Social Security Administration ordered that
disability hearings were to last no more than 15 minutes. The
quality of justice meted out by the administrative law judges
would be dangerously diminished. But all that matters for
the decision of the present case is that the administrative law
judges’ remedy under the Administrative Procedure Act for
interference with their decisional independence does not ex-
tend to the incidental consequences of a bona fide produc-
tion quota.
AFFIRMED.
8 No. 14-1953
RIPPLE, Circuit Judge, concurring. My colleagues have
attempted to cabin narrowly their holding. Noting that the
District of Columbia Circuit has held squarely that any
“personnel action” that interferes with decisional
independence is remediable, if at all, through the
administrative mechanisms of the Civil Service Reform Act
(“CSRA”), see Mahoney v. Donovan, 721 F.3d 633, 636 (D.C.
Cir. 2013), they stress that this circuit simply holds today
that the administrative law judges’ remedy under the
Administrative Procedures Act (“APA”) for interference
with their decisional independence does not extend to the
incidental consequences of a bona fide production quota.
Placing a decision interpreting the gnarled intersection of
two statutory schemes on narrow grounds is, in most
instances, a commendable path. I am skeptical, however,
about the appropriateness of such an approach in this
situation and write to set forth the reasons for my
skepticism.
If, as the court intimates, only bona fide personnel
actions that tread incidentally on decisional independence
are exempted from the strictures of the APA, we must be
prepared to undertake the gargantuan task of determining,
every time a decisional independence allegation is made,
whether the governmental action is taken in good faith. The
statutory scheme lacks, of course, any such “bona fides”
criterion—and for good reason. It would require judges to
dig into the subjective intent of executive and agency
officials. It is difficult to imagine how such an inquiry would
be compatible with Congress’s manifest intent in the CSRA
to limit judicial intrusion into the day-to-day management of
executive and regulatory government.
No. 14-1953 9
Moreover, the approach taken by the court today is in
significant tension with the doctrinal path hewed by the
Supreme Court and this circuit—a path that cuts a far
broader path for the scope of the CSRA.
I will discuss both of these reservations in turn.
A.
The Supreme Court has addressed on several occasions
the preemptive effect that the CSRA has with respect to
complaints by federal employees about employment
matters. See Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126
(2012); United States v. Fausto, 484 U.S. 439 (1988). In Fausto,
the Court considered whether a nonpreference excepted
service employee could challenge his suspension in the
United States Claims Court, even though the CSRA did not
then afford him a right to review in either the Merit Systems
Protection Board (“MSPB”) or the Federal Circuit. The Court
held that
[t]he comprehensive nature of the CSRA, the
attention that it gives throughout to the rights
of nonpreference excepted service employees,
and the fact that it does not include them in
provisions for administrative and judicial
review contained in Chapter 75, combine to
establish a congressional judgment that those
employees should not be able to demand
judicial review for the type of personnel action
covered by that chapter.
10 No. 14-1953
Fausto, 484 U.S. at 448.
The Court’s more recent pronouncement on the CSRA,
Elgin, concerned former federal employees who had failed to
comply with the Selective Service Act and were therefore
discharged by their employing agencies. See 132 S. Ct. at
2131. One of the former employees, Elgin, appealed his
removal to the MSPB and argued that the selective service
requirement was unconstitutional. The MSPB referred the
issue to an ALJ for initial decision, and the ALJ dismissed
the appeal for lack of jurisdiction, “concluding that an
employee is not entitled to MSPB review of agency action
that is based on an absolute statutory bar to employment.”
Id. Elgin did not petition for review by the full MSPB, nor
did he appeal to the Federal Circuit. Instead, he filed suit in
district court seeking a declaratory judgment that the
challenged statute was unconstitutional; he also requested
reinstatement, backpay, benefits, and attorneys’ fees.
Before the Supreme Court, Elgin argued that the grant of
general federal question jurisdiction, 28 U.S.C. § 1331,
provided authority for the district court to entertain his
action. The Court disagreed. Analogizing the case before it
to Fausto, the Court stated:
Just as the CSRA’s “elaborate” framework
demonstrates Congress’ intent to entirely
foreclose judicial review to employees to
whom the CSRA denies statutory review, it
similarly indicates that extrastatutory review is
not available to those employees to whom the
CSRA grants administrative and judicial
review. Indeed, in Fausto we expressly
assumed that “competitive service employees,
No. 14-1953 11
who are given review rights by Chapter 75,
cannot expand these rights by resort to”
judicial review outside of the CSRA scheme.
As Fausto explained, the CSRA “prescribes in
great detail the protections and remedies
applicable to” adverse personnel actions
against federal employees.…Given the
painstaking detail with which the CSRA sets
out the method for covered employees to
obtain review of adverse employment actions,
it is fairly discernible that Congress intended to
deny such employees an additional avenue of
review in district court.
Id. at 2133–34 (citations omitted) (quoting Fausto, 484 U.S. at
443, 450 n.3).
We also have considered the scope of the CSRA’s
preemptive effect on at least two occasions and reached
decisions compatible with the Supreme Court’s decisions. In
Paige v. Cisneros, 91 F.3d 40 (7th Cir. 1996), a HUD attorney
had challenged his discharge in district court. The district
court held that the plaintiff’s administrative hearing was
constitutionally inadequate and remanded for further
proceedings. The plaintiff appealed, however, arguing that
once the court had determined that there was a
constitutional violation, it should not have remanded the
matter to HUD. We determined that “the district court
lacked authority to remand the case to HUD, but for a
different reason: It hadn’t subject matter jurisdiction. By the
[CSRA], Congress gave exclusive jurisdiction over civil
service personnel disputes to the Merit Systems Protection
12 No. 14-1953
Board (MSPB).” Id. at 42 (citation omitted). We further
explained:
Since Paige could not appeal to the MSPB, the
district court thought it appropriate to order
the creation of a parallel administrative
apparatus through which he could challenge
his termination. This action was unwarranted
because it failed to accord respect to the
administrative system established by statute
for reviewing federal personnel actions. A
statute providing for review of some claims
but not others means that the “others” (like
Paige’s) don’t receive review; it does not mean
that judges should disregard the exclusions
and order the agency to provide a comparable
administrative review anyway.
Id. at 42–43.
We reached a similar decision in Richards v. Kiernan, 461
F.3d 880 (7th Cir. 2006). Richards, a former ATF employee,
“brought suit against his supervisors alleging that they
violated his First Amendment rights by retaliating against
him for his whistleblowing activities”; indeed, he had
resigned his position citing a hostile work environment. Id.
at 882. He first filed a formal complaint of discrimination
with the ATF, which was denied. He then turned to the
Office of Special Counsel. That claim and the appeal also
failed. Richards then filed a complaint in the district court
alleging constructive discharge and retaliation; he
voluntarily dismissed that action, however, to pursue claims
through the MSPB. “The MSPB held that it lacked
jurisdiction over Richards’ discharge claim, concluding that
No. 14-1953 13
he had voluntarily retired, and denied the whistleblower
claim finding that Richards had not made any protected
disclosures.” Id. at 883. Rather than appealing that adverse
ruling to the Federal Circuit, Richards reinstated his First
Amendment claim in the district court. The district court
dismissed for lack of jurisdiction, and we affirmed,
explaining that, “[b]y creating the CSRA, Congress implicitly
repealed the jurisdiction of federal district courts over
personnel actions arising out of federal employment.” Id.
Moreover, the fact that Richards was asserting a
constitutional challenge did not change the analysis.
In short, a conclusion that the federal courts lack
jurisdiction over any claim of interference with decisional
independence falls squarely within the extant jurisprudence
on the subject. Today’s opinion establishes a different
framework, and, although it does not alter the result, it sets
us up to travel a different and highly problematic road in the
future.
B.
The majority suggests that the administrative law judges,
if they are able to show a lack of bona fides, can challenge
departmental or agency action trenching on their decisional
independence. Although I am skeptical that the CSRA
permits them to pursue such a course, I also believe that
even the absence of a judicial remedy does not mean that
there is an absence of a constitutional violation. Rather, it
simply means that Congress has not seen fit to entrust such a
systemic issue to the administrative or judicial process.
14 No. 14-1953
Despite the lack of judicial redress, both statutory design 1
and, to some degree, constitutional imperative, 2 require that
the integrity of the administrative judges’ decision-making
process be respected. It is very possible that executive or
administrative authorities can so burden the exercise of that
judicial decision-making process that the congressional
intent of protecting the administrative law judges can be
fundamentally impaired. Such an impairment, should it
occur, is far more than an “incidental and undesired effect,”
Maj. Op. 6, of the adjudicative process. Congress, under the
present scheme, apparently has decided to leave the decision
as to whether such a systemic impairment is occurring to its
own scrutiny—and perhaps the scrutiny of the courts if a
litigant should ever raise it as a matter of due process of law
(a seemingly gargantuan task).
1 See Butz v. Economou, 438 U.S. 478, 513 (1978) (“[T]he process of agency
adjudication is currently structured so as to assure that the hearing
examiner exercises his independent judgment on the evidence before
him, free from pressures by the parties or other officials within the
agency.”).
2 See Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (holding that, in
evaluating the licensure decision of a state administrative board, “[i]t is
sufficiently clear from our cases that those with substantial pecuniary
interest in legal proceedings should not adjudicate these disputes”); see
also Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972) (holding that a
quasi-judicial official cannot, consonant with due process, act as a
decisionmaker when he is placed in a situation “which would offer a
possible temptation to the average man as a judge to forget the burden of
proof required to convict the defendant, or which might lead him not to
hold the balance nice, clear and true between the State and the accused”
(internal quotation marks omitted)); Tumey v. Ohio, 273 U.S. 510, 522
(1927) (“That officers acting in a judicial or quasi-judicial capacity are
disqualified by their interest in the controversy to be decided is, of
course, the general rule.”).
No. 14-1953 15
Serious impairment of a governmental function can occur
at the hands of officials with the most worthy of motives.
The integrity of the judicial function, at any level of
adjudication, can be undermined seriously by even the most
benignly motivated administrative or executive action that
alters the essential function of adjudication. Officials charged
with the responsibility “to get the job done” must devise
methods and measures for achieving that goal. Devising
such tools always requires, however, balancing
considerations of efficiency with respect for the core
functions of the governmental unit involved—here the
adjudication of cases.
The administrative adjudicative process is a vital part of
our system of administering justice in today’s United States.
Indeed, it is in the administrative process that most
Americans have any contact with the American justice
system. Here, their Government decides whether their
elderly family members will receive a steady, albeit basic,
income stream in their old age. Here, those in their family
who have the misfortune of coping with a physical or
psychiatric disability find whether they are eligible for
sufficient support to live in some semblance of economic
dignity. Administrative law judges affect directly the lives of
millions; the quality of their work deeply affects, moreover,
the respect that our people have for our system of justice.
The rights of Americans are not processed by our judges; they
are adjudicated. The task of adjudication at the administrative
level involves an intimate knowledge of a complicated
statutory scheme and the capacity to comprehend and
analyze technical and, at times, conflicting statutory
material. The judge must have the practical wisdom to
evaluate the value of testimony, some of it true, some of it
16 No. 14-1953
untrue, and some of it simply mistaken. Even though we
review the decisions of these officers under a deferential
standard, we know well that these analytical and evaluative
tasks alone are time-consuming and demand great attention
to detail.
Finally, I cannot accept even the slightest intimation that
the exercise of legislative power, even with the most benign
of motivations, could not constitute a significant
constitutional impairment of our own work. That the courts
of the Third Article cannot be burdened with non-
adjudicatory responsibilities has long been established. 3 I see
no reason why we should take as a given that those same
courts ever can be similarly impaired by being deprived of
the tools necessary to achieve their assigned task with
integrity. 4
With these considerations in mind, I am pleased to join
the judgment of the court.
3 “As a general rule, we have broadly stated that ‘executive or
administrative duties of a nonjudicial nature may not be imposed on
judges holding office under Art. III of the Constitution.’” Morrison v.
Olson, 487 U.S. 654, 677 (1988) (quoting Buckley v. Valeo, 424 U.S. 1, 123
(1976)); see also United States v. Ferreira, 54 U.S. (13 How.) 40, 48–51 (1852);
Hayburn's Case, 2 U.S. (2 Dall.) 409, 411 (1792).
4 See Hon. Deanell Reece Tacha, Independence of the Judiciary for the Third
Century, 46 Mercer L. Rev. 645, 648 (1995) (“In order for a judge to handle
her caseload and maximize productivity, she implicitly must possess
adequate staff, equipment, and physical facilities to carry out her
responsibilities. Independent judicial action requires an appropriate level
of support which allows a judge to carry out the judicial function
without relying on other entities, depending on someone else’s
assessment of the judge’s needs, or giving any thought in the case-
deciding role to tangential factors that might influence the speed of
deliberation or the outcome.”).