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Brennan v. Department of Health and Human Services

April 3, 1986

JERRY G. BRENNAN, PETITIONER,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, RESPONDENT



Appealed from: Merit Systems Protection Board.

Markey, Chief Judge, Smith and Bissell, Circuit Judges.

Bissell

BISSELL, Circuit Judge.

This is an appeal from the decision of the Merit Systems Protection Board (Board), Docket No. HQ75218210010, 27 M.S.P.R. 242 (1985), affirming the recommended decision to suspend for 60 days Jerry G. Brennan (petitioner), a Social Security Administration (agency) administrative law judge (ALJ). We affirm.

BACKGROUND

The agency proposed the removal of petitioner on April 2, 1982, pursuant to 5 U.S.C. § 7521(a) (1982), on charges of unsatisfactory productivity and disruptive and insubordinate conduct. In accordance with 5 C.F.R. § 1201.132 (1982), the Board designated an ALJ as presiding official to hear the case and to issue a recommended decision. The ALJ concluded that the agency had established good cause to remove petitioner on both the low productivity and misconduct grounds and recommended that the Board sustain the two charges. On February 6, 1984, the Board remanded the case to the ALJ for issuance of a supplemental recommended decision on whether the agency had met the "good cause" standard of section 7521 and whether the new office procedures improperly interfered with petitioner's ability to hold full and fair hearings and render complete and reasoned decisions. 19 M.S.P.R. 335 (1984), opinion clarified 20 M.S.P.R. 35 (1984). The questionable behavior engaged in by petitioner was that, contrary to mandatory office procedures, he insisted that all mail concerning his cases be delivered to him prior to its being logged in at a central location and he refused to use standardized office worksheets to monitor the progress of his cases. Additionally, the Board ruled that the agency's statistical evidence regarding petitioner's low productivity was inadequate because it did not validly measure comparable levels of production.

On September 18, 1984, the ALJ issued a supplemental recommended decision finding that the new office procedures did not interfere with petitioner's ability to hold full and fair hearings and to render complete decisions and was "good cause" for removal. On appeal after remand, the Board authorized the agency to suspend petitioner for a period up to 60 days. 27 M.S.P.R. 242 (1985). Petitioner appealed the Board's final decision raising the issue of whether the decision of the Board's finding that the agency had good cause to suspend petitioner for 60 days was supported by substantial evidence, was not arbitrary or capricious, and was obtained through use of the procedures required by law.

Actions against administrative law judges are permitted only by following the proscriptions of 5 U.S.C. § 7521(a) (1982) which provides:

An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.

Actions subject to this section taken against an ALJ include both removal and suspension. 5 U.S.C. § 7521(b)(1), (2) (1982).

To be sustained, the charges brought against petitioner must be supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B) (1982). A preponderance of the evidence is specifically defined in 5 C.F.R. § 1201.56(c)(2) (1982) as "that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true." See also Steadman v. Security Exchange Commission, 450 U.S. 91, 100-02 (1981).

Petitioner concedes that he did the acts that are the basis of the charge against him. Nevertheless, he argues that his behavior does not constitute "good cause" within the meaning of the statute, the notice of the charge was not sufficiently specific, and the Board shifted the burden of proof to him to prove that the agency lacked good cause to take this action.

With regard to the specificity of the notice, the charge against petitioner states that he "displayed a pattern of disruptive, insubordinate, obstructionist and dilatory conduct . . . and followed his own procedures regardless of established office routine and standard procedures. . . ."

The 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. See Burkett v. United States, 402 F.2d 1002, 1004 (Ct. Cl. 1968); accord DeSarno v. Department of Commerce, 761 F.2d 657 (Fed. Cir. 1985). We are persuaded that this charge constituted sufficient notice ...


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