Barber v. D.C. Comm'n on Selection & Tenure of Admin. Law Judges, s. 19-CV-266

Docket NºNos. 19-CV-266
Citation259 A.3d 62
Case DateSeptember 23, 2021
CourtCourt of Appeals of Columbia District

259 A.3d 62

Claudia A. BARBER, Jesse P. Goode, and Caryn Hines, Appellants,

Nos. 19-CV-266

District of Columbia Court of Appeals.

Argued March 9, 2021
Decided September 23, 2021

David A. Branch for appellant Barber.

Stephen C. Leckar, with whom Evan Lisull was on the brief, for appellants Goode and Hines.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee.

Before Glickman and Thompson,* Associate Judges, and Greene, Senior Judge, Superior Court of the District of Columbia.**

Glickman, Associate Judge:

In the District of Columbia, decisions concerning the appointment, reappointment, removal, and discipline of Administrative Law Judges ("ALJs") in the Office of Administrative Hearings ("OAH") are entrusted to the Commission on Selection and Tenure of Administrative Law Judges ("COST").1 Appellants in these consolidated cases are former ALJs who challenge determinations by the Superior Court that it could not review COST's decisions to remove Appellant Barber and not to reappoint Appellants Goode and Hines. For the following reasons, we affirm the Superior Court rulings.

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I. Background

A. Removing and Reappointing ALJs

COST is a public body that was created by the Office of Administrative Hearings Establishment Act of 2001 ("Establishment Act").2 It consists of three voting members and two nonvoting ("ex officio ") members.3 The voting members serve staggered three-year terms and are eligible for reappointment.4 COST's mission is to "ensure the recruitment and retention of a well-qualified, efficient, and effective corps" of ALJs.5 ALJs are responsible for the "fair, impartial, effective, and efficient disposition" of the broad range of disputes "to which they are assigned."6

ALJs serve set terms: initially for two years, then for six or ten years at a time.7 An ALJ who seeks reappointment for a new term must file a statement with COST requesting reappointment at least six months before the previous appointment expires.8 The Chief ALJ then prepares for COST a record of the ALJ's "performance with regard to that judge's efficiency, efficacy, and quality of performance over the period of his or her appointment."9 The record includes copies of the ALJ's performance evaluations, prior decisions, and a recommendation from the Chief ALJ "with a statement of reasons, as to whether the ALJ should be reappointed."10 The voting members of COST "shall give significant weight" to the Chief ALJ's recommendation, "unless it is determined that the recommendation is not founded on substantial evidence."11 COST regulations provide that it "shall reappoint" an ALJ if it finds that the ALJ "has satisfactorily performed the responsibilities of his or her office and is likely to continue to do so."12 COST must issue a written statement of reasons for every decision to reappoint or not reappoint an ALJ.13

ALJs are subject to removal "only for cause."14 COST may determine whether a formal proceeding to remove an ALJ should be instituted pursuant to "a proposal of the Chief [ALJ], or upon receiving information giving it reason to believe that there may be cause" for removal.15 Before instituting the formal proceeding, COST must "serve the [ALJ] with notice of the investigation and offer the [ALJ] an opportunity to meet" with COST members.16 The formal proceeding itself consists of a hearing conducted in accordance with D.C. Code § 2-509 (2016 Repl.) "and any other applicable law."17 A quorum of two COST

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voting members18 must be present to preside over the hearing,19 in which the ALJ "shall be given every reasonable opportunity to defend himself or herself against the charges ... including the introduction of evidence and ... cross-examination of witnesses."20 Following the hearing, COST is directed to issue its written findings of facts and conclusions of law within ninety days.21

The Establishment Act states that "COST shall have final authority to appoint, reappoint, discipline, and remove Administrative Law Judges,"22 and does not provide for judicial review of those decisions. The implementing regulations state that any non-reappointment or removal decision "shall be reviewable only to the same extent as a decision of the District of Columbia Commission on Judicial Disabilities and Tenure giving an evaluation of ‘Unqualified.’ "23 An "unqualified" evaluation by the Disabilities and Tenure Commission means that a judge has been deemed "unfit for further judicial service."24 A judge may seek review of this determination only by filing a notice of appeal with the Chief Justice of the United States Supreme Court.25

In October 2017, the Office of Open Government ("OOG") issued a report disclosing "troubling gaps between [the] terms" of COST's voting members dating back to 2003.26 The report noted "evidence, based upon review of records of COST meetings, that official actions were taken when members of the COST may have been improperly held over, and therefore improperly seated."27

Three voting members of COST identified as holdover appointees in the OOG report were involved in that status in appellants’ cases. These were Commissioners Williams, Onek, and Cooper.

On December 16, 2013, Superior Court Chief Judge Morin selected Associate Judge Yvonne Williams to replace his previous appointee as a voting member of COST. Judge Williams's appointment letter stated that her term would expire on December 16, 2016, despite the fact that the previous appointee's term would have ended, in accordance with the statute, on April 30, 2015.28 Judge Williams was not reappointed to the COST on May 1, 2015 or on December 17, 2016. Instead, Chief Judge Morin eventually issued a reappointment order on August 1, 2017, effective nunc pro tunc to December 16, 2016. Judge Williams continued to actively serve on COST in the interval between April 30, 2015, and August 1, 2017.

The Council appointed Joseph Onek as a voting member of COST on June 3, 2014. By statute, his term ended on April 30,

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2017.29 However, Commissioner Onek held over in his COST position for approximately five months until he was reappointed by the Council on September 22, 2017.

The Mayor appointed James Cooper as a COST voting member on November 1, 2013. His term ended on April 30, 2016,30 but he continued to serve as a voting member until March 15, 2017 (when Robert Hawkins replaced him).

B. Appellant Barber

Claudia Barber served as an ALJ from 2005 to 2016. In late 2015, she began to consider running for a Fifth Circuit judgeship in Anne Arundel County, Maryland. Section V.U. of the OAH's Code of Ethics ("Section V.U.") requires ALJs to "resign from judicial office when the[y] become[ ] a candidate either in a party primary or a general election." Violating this provision is grounds for removal.31

Ms. Barber asked ALJ James Harmon, who chaired OAH's ethics committee, for his opinion as to whether she could become a candidate for the Maryland judgeship without resigning as an ALJ or facing removal. ALJ Harmon advised her that she would have to resign her position if the election involved a party primary or a partisan general election. Ms. Barber solicited COST's opinion on the same question. Judge Williams responded that COST "was not the appropriate forum to consider this issue," and recommended that Ms. Barber contact the Board of Ethics and Government Accountability ("BEGA"). The general counsel for BEGA eventually told Ms. Barber that his organization could not "opine on whether running for judicial office would comport with any OAH rules that apply to ALJs." Following this exchange, Ms. Barber emailed Judge Williams asking for "reassurance from [COST] ... that I would not be forced to resign under Section V.U. of our ethics code." She did not receive a reply.32

In January 2016, Ms. Barber filed her certificate of candidacy for the Maryland judgeship, without resigning from OAH. Two weeks later, Chief ALJ Eugene Adams received a formal complaint that Ms. Barber had violated Section V.U. by entering a partisan political election. After asking Ms. Barber for an explanation,33 Chief ALJ Adams placed her on paid administrative leave and requested her resignation. Ms. Barber refused to resign, and Chief ALJ Adams recommended her removal to COST.

On May 17, 2016, COST notified Ms. Barber that a formal removal proceeding had been instituted against her. After a

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hearing, at which Ms. Barber testified, COST found that she had participated in a party primary, in contravention of Section V.U.’s prohibition, and removed her from her position as an ALJ, effective immediately. At the time this decision was made, two of the three COST voting members — Judge Williams and Commissioner Cooper — were serving in that...

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1 practice notes
  • Goode v. D.C., 21-7038
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 29 Abril 2022
    ...("Establishment Act") confers "'final authority'" on COST "'to appoint, reappoint, discipline, and remove Administrative Law Judges.'" 259 A.3d 62, 69-70 (D.C. 2021) (quoting D.C. Code § 2-1831.06(b)). The court noted that like the Establishment Act, "the National Labor Relations Act provid......

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