Lloyd L. Tunik, et al. v. M.S.P.B., (2005)

United States Court of Appeals for the Federal Circuit

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Lloyd L. Tunik, et al. v. M.S.P.B., (2005)

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

United States Court of Appeals for the Federal Circuit 03-3286, -3330, -3331

LLOYD L. TUNIK,

and

VERRELL DETHLOFF, THOMAS S. ROBINSON, MARGUERITE SCHELLENTRAGER, KAREN BAKER, BRYAN BERNSTEIN, and

TELA L. GATEWOOD,

and JOSEPH SCHLOSS,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent,

Intervenor.

Michael J. Kator, Kator, Parks & Weiser, P.L.L.C., of Washington, DC, argued for petitioners.

Calvin M. Morrow, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief were Martha B. Schneider, General Counsel, and Stephanie M. Conley, Reviewing Attorney.

Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Todd M. Hughes, Assistant Director. Of counsel on the brief was Shawn S. McGruder, Office of General Counsel, Social Security Administration, of Baltimore, Maryland.

Petitioner,

Petitioners,

and

SOCIAL SECURITY ADMINISTRATION,

Sally M. Tedrow, O'Donoghue & O'Donoghue LLP, of Washington, DC, for amici curiae Association of Administrative Law Judges, IFPTE, AFL-CIO, et al.

Joyce E. Kitchens, Kitchens/New, L.L.C., of Atlanta, Georgia, for amicus curiae Federal Bar Association.

Appealed from: United States Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit 03-3286, -3330, -3331

LLOYD L. TUNIK,

and

VERRELL DETHLOFF, THOMAS S. ROBINSON, MARGUERITE SCHELLENTRAGER,

KAREN BAKER, BRYAN BERNSTEIN, and TELA L. GATEWOOD,

Petitioners,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent,

and

SOCIAL SECURITY ADMINISTRATION,

Intervenor.

DECIDED: May 11, 2005

Petitioner,

and JOSEPH SCHLOSS,

Before LOURIE, SCHALL, and LINN Circuit Judges.

Opinion for the Court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit Judge SCHALL.

LINN, Circuit Judge.

Lloyd L. Tunik ("Tunik"), Verrell Dethloff et al. ("Dethloff"), and Joseph Schloss ("Schloss") petition for review of the Merit Systems Protection Board's ("Board") dismissal of each of their appeals for lack of jurisdiction. Tunik v. Social Sec. Admin.,

93 M.S.P.R. 482 (2003); Dethloff v. Social Sec. Admin., 93 M.S.P.R. 574 (2003); Schloss v. Social Sec. Admin., 93 M.S.P.R. 578 (2003). Their separate appeals were consolidated before this court because there is a common issue among them. Because Tunik's case is moot, we vacate the Board's opinion in his case and remand with instructions to dismiss. Because in the remaining cases the Board erred in attempting to repeal by adjudication its rule adopted pursuant to notice and comment rulemaking, we reverse and remand.

I. BACKGROUND

Tunik was an Administrative Law Judge ("ALJ") with the Social Security Administration ("Agency"). During the course of his employment, Tunik issued an opinion remanding a disability claim to a state agency due to asserted deficiencies in the state agency's consideration of the claim. Subsequently, Tunik informed Acting Regional Chief Administrative Law Judge Mary Bisantz ("Bisantz") of his disposition of the case and his similar disposition of other cases. The state agency refused to comply with the remand order and sent the case back to the Agency. Several months after being informed of Tunik's actions, Bisantz reviewed Tunik's decision and issued a memorandum to Acting Spokane Hearing Office Chief Administrative Law Judge Mary 03-3286, -3330, -3331 2

Reed ("Reed") asserting that Tunik had improperly dismissed the case. The memorandum also instructed Reed to inform Tunik that his decision was invalid and to offer him the opportunity to rectify his alleged mistake by vacating the dismissal order and hearing the case on its merits. Bisantz also sent a memorandum to Tunik informing him that his decision in the case was without legal justification and could result in disciplinary action.

Tunik sent a memorandum to the Agency's Chief Administrative Law Judge protesting Bisantz's actions. Nevertheless, Tunik vacated his original order remanding the case to the state agency. In his consideration of the case on the merits, Tunik drafted a new decision holding that the claimant had been denied due process of law by the lack of a proper decision by the state agency. Reed reviewed the decision prior to its issuance and notif...

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