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GOODMAN v. SVAHN

July 1, 1985

ROBERT W. GOODMAN, Plaintiff
v.
JOHN A. SVAHN, et al., Defendants



The opinion of the court was delivered by: HOGAN

 The plaintiff, Robert W. Goodman, is an administrative law judge at the Charlotte, North Carolina field office of the Social Security Administration Office of Hearings and Appeals. The Office of Hearings and Appeals ("OHA") is responsible for hearing and deciding claims for disability benefits under the Social Security Act, 42 U.S.C. §§ 401, et seq., and 42 U.S.C. §§ 1381, et seq. Plaintiff has brought this action for declaratory relief and money damages against executive officers of the Social Security Administration, challenging the defendants' formulation and implementation of certain management policies and programs concerning OHA's administrative law judges (ALJs). Specifically, plaintiff alleges that the defendants have unlawfully instituted a case production quota system under which statistics of the number of decisions rendered by an ALJ are maintained, and ALJs are pressured to decide a certain number of cases each month, or threatened with adverse action for failure to do so.

 At the time this action was filed, proceedings had been initiated before the Merit Systems Protection Board (MSPB), pursuant to 5 U.S.C. § 7521, proposing the removal of the plaintiff from his position on the grounds that he had not been deciding a sufficient number of cases. During the pendency of this action, the MSPB dismissed the removal action against the plaintiff. Social Security Administration v. Goodman, 19 M.S.P.R. 321 (1985). *fn1" The plaintiff maintains that his success before the MSPB does not alter, or in any way moot, the assertions of his complaint in this action that the defendant's implementation of a case production quota system and its attendant pressures on ALJs, violate the Administrative Procedure Act, 5 U.S.C. § 551, et seq., the Fifth Amendment, the Civil Rights Act of 1861, 42 U.S.C. § 1985(1), and a settlement agreement entered into by the Social Security Administration. The plaintiff also asserts that the defendants' assignment of staff writers to write decisions for the ALJs violates his First Amendment rights.

 This case is presently before the Court on defendants' motion to dismiss for lack of jurisdiction or failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1) & (6). Upon consideration of defendants' motion, the plaintiff's opposition thereto, and the supplemental memoranda submitted, the Court concludes that defendants' motion should be granted.

 Administrative Procedure Act & the Fifth Amendment

 The plaintiff maintains in this action that, by imposing arbitrary case production quotas on OHA's administrative law judges, the defendants have violated his rights to decisional independence under the Administrative Procedure Act and the Fifth Amendment.

 The Administrative Procedure Act does in fact contain a number of provisions designed to safeguard the status of ALJs as independent hearing examiners for the receipt of evidence and initial rendering of a decision. These provisions remove from the employing agency any decisionmaking power with respect to the ALJs' compensation and tenure. See generally Butz v. Economou, 438 U.S. 478, 513-14, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 132, 97 L. Ed. 872, 73 S. Ct. 570 (1953). Thus, an administrative law judge's compensation is determined by the Office of Personnel Management without agency recommendations and ratings, and with no monetary award or periodic step increases based on performance. 5 U.S.C. §§ 554; 5372. Moreover, ALJs are exempt from the performance appraisals to which other federal employees are subject, which may result in removal or reduction in grade for unsatisfactory performance. 5 U.S.C. § 4302. Instead, ALJs may be removed only by a determination of the MSPB, after a hearing, that the agency has established good cause for the removal. 5 U.S.C. § 7521. In this manner, the process of agency adjudication is structured to "assure that the . . . [ALJ] exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency." Butz, 438 U.S. at 513 (1978).

 An administrative law judge's individual rights associated with his position are purely the creation of Congressional enactment, and are not Constitutionally protected. Ramspeck v. Trial Examiners Conference, 345 U.S. 128, 133, 97 L. Ed. 872, 73 S. Ct. 570 (1953); see also Nash v. Califano, 613 F.2d 10, 15 (2d Cir. 1980). An administrative law judge's rights, therefore, are limited to the protections of his compensation and tenure found in the Administrative Procedure Act. Consequently, to the extent a larger right of decisional independence exists, arising either from the Due Process Clause of the Fifth Amendment or the APA or Social Security Act, such a right would belong to the claimants whose rights are adjudicated by the ALJs, rather than to the ALJs themselves, and therefore would not create a right to relief in this plaintiff. See Kalaris v. Donovan, 225 U.S. App. D.C. 134, 697 F.2d 376, 399 n.91 (D.C. Cir. 1983); see also D'Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983). *fn2"

 The explicit statutory protections for the plaintiff's tenure rights precludes the recognition of a right of action for declaratory relief or money damages in this Court. Where, as here, the statute "creates a right and provides a special remedy, that remedy is exclusive." Renegotiation Board v. Bannercraft Co., 415 U.S. 1, 18, 39 L. Ed. 2d 123, 94 S. Ct. 1028 (1974) (quoting United States v. Babcock, 250 U.S. 328, 331, 63 L. Ed. 1011, 39 S. Ct. 464 (1919)). Consequently, recognition of a damage remedy in this case is precluded by the comprehensive alternative administrative remedy provided by Congress. Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 97, 101 S. Ct. 1571, 67 L. Ed. 2d 750 (1981); see Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983); Carlson v. Green, 446 U.S. 14, 18-19, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980); Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 422, 13 L. Ed. 2d 386, 85 S. Ct. 551 (1965).

 The plaintiff has continually protested in this action that his administrative remedies to challenge adverse action taken against him under the "good cause" standard afford him no ability to challenge the day-to-day interference with his duties that falls short of actual adverse action. The simple fact remains, however, that plaintiff has only those specific rights enumerated in the APA. Unless adverse action, such as removal, is initiated against him, he has not suffered any injury cognizable under that statute that is ripe for review by any court. *fn3" If such adverse action is initiated, giving rise to a claim, this Court is not the proper court to consider it.

 42 U.S.C. § 1985(1)

 Plaintiff also asserts that the defendants violated his rights under the Civil Rights Act of 1861, 42 U.S.C. § 1985(1). Section 1985(1) provides:

 
If two or more persons . . . conspire to prevent, by force, intimidation, or threat, any person . . . from discharging any duties [of any office, trust or place of confidence under the United States] . . . or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof . . . the party so injured or deprived may have an action for the ...

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