Butler v. Social Sec. Admin., 02-3301.
| Citation | 331 F.3d 1368 |
| Decision Date | 13 June 2003 |
| Docket Number | No. 02-3301.,02-3301. |
| Parties | Larry J. BUTLER, Petitioner, v. SOCIAL SECURITY ADMINISTRATION, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Larry J. Butler, pro se, of Shreveport, LA.
Phyllis Jo Baunach, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent. With her on the brief were David M. Cohen, Director, and Mark A. Melnick, Assistant Director. Of counsel on the brief was Mark S. Ledford, Senior Attorney, Office of General Law, Office of General Counsel, Social Security Administration, of Baltimore, MD.
Before NEWMAN, RADER, and DYK, Circuit Judges.
This case presents the question of whether the Merit Systems Protection Board ("the Board") has jurisdiction over an appeal by an administrative law judge from a decision by the employing agency, the Social Security Administration ("SSA"), to eliminate his administrative and managerial duties as Hearing Office Chief Administrative Law Judge. The Board concluded that it did not have jurisdiction and dismissed the appeal. Butler v. Soc. Sec. Admin., No. CB-7521-02-0002, slip op. at 5 (M.S.P.B. Dec. 12, 2001) ("Initial Decision"), review denied, No. CB-7521-02-0002, slip op. at 2, 2002 WL 1270122 ("Final Order"). We affirm.
The position of administrative law judge is created by statute. Under 5 U.S.C. § 3105, "[e]ach agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title." 5 U.S.C. § 3105 (2000). Congress has also implemented a pay structure for administrative law judges and has delegated to the Office of Personnel Management ("OPM") the authority to "determine, in accordance with procedures which the Office shall by regulation prescribe, the level in which each administrative-law-judge position shall be placed and the qualifications to be required for appointment to each level." 5 U.S.C. § 5372(b)(2) (2000). OPM has created a pay structure based on seniority, which is codified at 5 C.F.R. § 930.210(a)(f). One of the limited exceptions to this basic system is provided by 5 C.F.R. § 930.210(h):
Subject to the approval of OPM, and on the appropriate recommendation of the employing agency, an agency may on a one-time basis, advance an administrative law judge in a position at AL-3 with added administrative and managerial duties and responsibilities one rate beyond that allowed under current pay rates for AL-3, up to the maximum Rate F.
Pursuant to section 930.210(h), the SSA designates certain incumbent administrative law judges to act as Hearing Office Chief Administrative Law Judges ("Hearing Office Chiefs"). These assignments are made "with the approval of the incumbent." (J.A. 30.) An administrative law judge so assigned becomes "responsible for the management of the hearing office to which assigned," in addition to his preexisting responsibility to "hold[ ] hearings and mak[e] and issu[e] decisions on appeals pursuant to the Social Security Act." (J.A. 30.) The SSA assigns the following "added administrative and managerial duties and responsibilities" to those administrative law judges designated as Hearing Office Chiefs:
The [Hearing Office Chief] has administrative and managerial responsibility for all personnel in the hearing office (HO) and provides overall guidance and direction regarding adherence to time and attendance procedures; staffing, space, equipment and expert witness needs; rotational assignment of cases and review of work products; application of performance standards and appraisals; and approval of travel vouchers, itineraries and expenditures. The [Hearing Office Chief] provides advice and guidance to [administrative law judges] regarding the interpretation of applicable law, regulations, rulings and judicial precedents. The [Hearing Office Chief] participates in investigations, in coordination with the Regional Chief Administrative Law Judge, into allegations of misconduct on the part of any employee, including [administrative law judges], ensures compliance with the principles of equal employment opportunity and [the Office of Hearings and Appeal's] Affirmative Employment Plan, and conducts labor management functions consistent with collective bargaining agreements. The [Hearing Office Chief] also ensures the timely and accurate response to public and congressional inquiries; performs liaison functions between the HO and various federal and local government agencies, including bar associations, medical and vocational rehabilitation associations; and conducts periodic training.
Social Security Administration, Office of Hearings and Appeals, Hearings, Appeals and Litigation Law Manual, at I-2-0-5.A (updated, Jan. 28, 2003), available at http:/ /www.ssa.gov/OP-Home/hallex/hallex. html.
The petitioner, Larry J. Butler ("the petitioner"), began serving as the Hearing Office Chief of the SSA's Shreveport, Louisiana, Office of Hearings and Appeals on January 11, 2001. Pursuant to section 930.210(h), as a consequence of assuming additional administrative and managerial duties, the petitioner received a pay adjustment of one rate, from AL3/E to the maximum rate of pay, AL3/F. On September 17, 2001, the SSA's Acting Regional Chief Administrative Law Judge in Dallas, Texas, notified the petitioner that he was "removed as the [Hearing Office Chief] in the Shreveport Hearing Office." (J.A. 26.) The letter notifying the petitioner of his "removal" stated, "the removal of a [Hearing Office Chief] is at the discretion of the Regional Chief Administrative Law Judge with the concurrence of the Chief Administrative Law Judge." Id. According to the petitioner, he "was not given[ ] a statement of the grounds for his removal." (Appellant's Brief at 13.)
Before the Board, the petitioner alleged that he was removed in retaliation for his support of grievances filed by other administrative law judges, and that this action constituted a constructive removal in violation of 5 C.F.R. § 1201.142. (J.A. 25.)1 The petitioner also alleged that he was removed "without due cause, and without compliance with 5 C.F.R. [§ ] 930.214(a) requiring hearing before the [Board]." Id. The petitioner admitted that he did not suffer a reduction in pay or grade upon losing his Hearing Office Chief duties. Initial Decision, slip op. at 2. He contends, however, that he suffered other types of harm, including damage to reputation, diminished opportunities for advancement in the federal government, and the loss of certain perquisites, such as "a larger office than a line [administrative law judge,] ... a dedicated printer ... [and] paid parking by the agency, etc." (Appellant's Brief at 26-27.)
On September 23, 2001, the petitioner appealed the loss of his Hearing Office Chief duties to the Board. On November 13, the SSA filed a motion to dismiss for lack of Board jurisdiction. On December 12, 2001, in an Initial Decision, the Board dismissed the appeal for lack of jurisdiction. Initial Decision, slip op. at 5.
Congress has granted the Board jurisdiction over appeals from certain adverse actions taken by agencies against administrative law judges. 5 U.S.C. § 7521 (2000). OPM has promulgated regulations to implement this statute. 5 C.F.R. §§ 930.201-930.216 (2003). Under 5 C.F.R. § 930.214(a), the Board has jurisdiction over removals, suspensions, reductions in grade, reductions in pay, or furloughs for 30 days or less. 5 C.F.R. § 930.214(a) (2003). In this case, the Board held that section 930.214(a) provided jurisdiction only if the SSA's action constituted a "removal" of the petitioner, since there had been no reduction in pay or grade. The regulations define "removal" as the "discharge of an administrative law judge from the position of administrative law judge or involuntary reassignment, demotion, or promotion to a position other than that of administrative law judge." 5 C.F.R. § 930.202(f) (2003). Applying this definition of "removal," the Board concluded that "a plain reading of Section 930.202(f) does not encompass the reassignment or demotion of a hearing office chief administrative law judge." Id. (emphasis in original).
The regulations also give the Board jurisdiction over certain "reassignments." 5 C.F.R. § 930.205 (2003). Section 930.205 provides that an agency may only "reassign" an administrative law judge "from one administrative law judge position to another administrative law judge position" with prior approval of OPM, for bona fide management reasons, and "in accordance with regular civil service procedures and merit system principles." 5 C.F.R. § 930.205 (2003). The Board determined that this regulation covers only "an `administrative law judge,' not a hearing office chief administrative law judge" and concluded that it did not have jurisdiction under this regulation. Initial Decision, slip op. at 4.2
On March 29, 2002, the Board dismissed the petitioner's petition for review. Final Order, slip op. at 2. The petitioner timely appealed to this court. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
Whether the Board has jurisdiction to adjudicate a case is a question of law, which we review without deference. Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed.Cir.2000). The Board's jurisdiction is limited to that expressly granted by statute, rule or regulation. Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378, 1380 (Fed.Cir.1996).
The petitioner first contends that the Board has jurisdiction under 5 U.S.C. § 7521. That statute provides as follows:
(a) 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...
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