AALJ Association of Administrative Law Judges - IN THE UNITED … · 2017-07-31 · reviewable under the APA. And because this case does not involve rights under the Civil Service

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ASSOCIATION OF ADMINISTRATIVE )LAW JUDGES, JUDICIAL COUNCIL )NO. 1, IFPTE, AFL-CIO & CLC; )CYNTHIA M. BRETTHAUER; )ROBIN HENRIE; and GILBERT ) MARTINEZ; )

) No. 1-13-CV-02925Plaintiffs, )

v. ) Hon. Sharon Johnson Coleman) Magistrate Judge Young B. Kim

CAROLYN W. COLVIN, ACTING )COMMISSIONER SOCIAL SECURITY )ADMINISTRATION; )

)Defendant. )

PLAINTIFFS’ RESPONSE TO RULE 12(b)(1) MOTION TO DISMISS

C. Philip CurleyCynthia H. HyndmanLaura KleinmanROBINSON CURLEY & CLAYTON, P.C.300 South Wacker DriveSuite 1700Chicago, Illinois 60606(312) 663-3100 Telephone(312) 663-0303 [email protected]@[email protected]

Of Counsel:Robert H. Stropp, Jr.Diana M. BardesMOONEY, GREEN, SAINDON, MURPHY& WELCH, P.C.1920 L Street, N.W.Suite 400Washington, D.C. 20036(202) 783-0010 Telephone (202) 783-6088 [email protected]@mooneygreen.com

August 30, 2013

Case: 1:13-cv-02925 Document #: 18 Filed: 08/30/13 Page 1 of 36 PageID #:221

mailto:[email protected]





i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutory ALJ Decisional Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Agency Imposes A Fixed Quota of 500-700 Decisions Per Year . . . . . . . . . . . . . . . . 3

Plaintiff’s Have Been Injured By The Quota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPLICABLE STANDARD FOR RULE 12(b)(1) MOTION . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. PLAINTIFFS ARE “ENTITLED TO JUDICIAL REVIEW” UNDER THE APA . 7

A. PLAINTIFFS HAVE SUFFERED A LEGAL WRONG AND AREADVERSELY AFFECTED AND AGGRIEVED BY SSA ACTION . . . . . . . . . 7

B. THE QUOTA IS FINAL AGENCY ACTION REVIEWABLE UNDER THEAPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. The Benchmarks And Directive Constitute Final Agency Action . . . . . . . 8

2. Plaintiffs Have No Other Adequate Judicial Remedy . . . . . . . . . . . . . . . . 9

C. THE EXCEPTIONS OF SECTION 701 OF THE APA DO NOT APPLY . . . . 10

1. The CSRA Does Not Preempt Plaintiffs’ Claims . . . . . . . . . . . . . . . . . . 10

a. Plaintiffs are not seeking relief for a violation of rights under theCSRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

b. Plaintiffs are not required to exhaust administrative remedies under the Federal Labor Management Relations Act . . . . . . . . . . 13

c. Plaintiffs do not claim “special status” under the CSRA . . . . . . . 14

2. The Quota Is Not Action Committed To Agency Discretion . . . . . . . . . . 15


ii

Page

II. PLAINTIFFS HAVE ARTICLE III STANDING TO BRING THEIR CLAIMS . 16

A. PLAINTIFFS HAVE SUFFERED INJURY-IN-FACT . . . . . . . . . . . . . . . . . . . 16

1. Infringement of Statutory Right Of ALJ Decisional Independence . . . . . 16

2. Interference With ALJ Oath Office And Federal Duties . . . . . . . . . . . . . 19

3. Constructive Salary Reduction And Adverse Effect On CareerAdvancement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. Damage to Professional Reputation and Public Standing . . . . . . . . . . . . 20

B. PLAINTIFFS’ INJURIES ARE TRACEABLE TO THE QUOTA AND REDRESSABLE BY THE RELIEF SOUGHT . . . . . . . . . 20

C. PLAINTIFF AALJ HAS ASSOCIATIONAL STANDING . . . . . . . . . . . . . . . . 21

D. THE INDIVIDUAL PLAINTIFFS HAVE ADEQUATELY ALLEGED INJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

E. PLAINTIFFS MAY ASSERT THE CLAIMS OF THE DISABILITYCLAIMANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


iii

TABLE OF AUTHORITIES

Cases Pages

AALJ v. Heckler,

594 F. Supp. 1132 (D.D.C. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

Abbott Labs v. Gardner,387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

AFGE v. Sec’y of the Air Force,841 F. Supp. 2d 233 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Aguayo v. Richardson,473 F.2d 1090 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

American Federation of Government Employees Local 2119 v. Cohen,171 F.3d 460 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appraisers Coal v. Appraisal Inst.,845 F. Supp. 592 (N.D. Ill. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Asociacion de Empleados Del Area Canalera v. Panama Canal Comm’n,329 F.3d 1235 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ayrault v. Pena,60 F.3d 346 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Bennett v. Spear,520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Bjornson v. Astrue,671 F.3d 640 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Board of Education v. Allen,392 U.S. 239 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Bono v. United States of America Social Security Administration,U.S.D.C. W.D. Mo., No. 770819 CV W4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Bowen v. Massachusetts,487 U.S. 879 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


iv

Cases Pages

Brock v. United States,64 F.3d 1421 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Broadway v. Block,694 F.2d 979 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bush v. Lucas,462 U.S. 367 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Butz v. Economou,438 U.S. 478 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Caplin & Drysdale, Chtd. v. United States,491 U.S. 617 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Carducci v. Regan,714 F.2d 171 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

Carter v. Jury Commission of Greene County,396 U.S. 320 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

D’Amico v. Schweiker,698 F.2d 903 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24

Edwards v. First American Corp.,610 F.3d 514 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Elgin v. Department of Treasury,132 S.Ct. 2126 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Fane v. Locke Reynolds, LLP,480 F.3d 534 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fernandez v. Donovan,760 F. Supp. 2d 31 (D.D.C. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Filebark v. United States,555 F.3d 1009 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Finger v. Orkin, Inc.,2009 WL 102982 (N.D. Ill. Jan. 15, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


v

Cases Pages

Fligiel v. Samson,440 F.3d 747 (6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Goodman v. Svahn,614 F. Supp. 726 (D.D.C. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Graham v. Ashcroft,358 F.3d 931 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gray v. Office of Personnel Mgmt.,771 F.2d 1504 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Grosdidier v. Chairman, Broadcasting Bd. of Gov.,560 F.3d 495 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Heckler v. Chaney,470 U.S. 821 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Hunt v. Washington State Apple Adver. Comm'n,432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Int’l Fed’n of Prof’l & Technical Eng’rs Assoc of Admin. Law Judges Judicial Council No. 1 and Soc. Sec. Adm’n Office of Disability Adjudication and Review, Nat’l Hearing Ctr. Richmond, VA,

66 F.L.R.A. 763 (July 13, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kyles v. Guardian Sec. Services, Inc.,222 F.3d 289 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mahoney v. Donovan, 2013 U.S. App. LEXIS 13272 (D.C. Cir. June 28, 2013) . . . . . . . . . . . . . . . . . . . . . 14, 15

Martin v. Shalala,63 F.3d 497 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Meese v. Keene,481 U.S. 465 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


vi

Cases Pages

Mudge v. United States,308 F.3d 1220 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Nash v. Bowen,869 F.2d 675 (2d Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Nash v. Califano,613 F.2d 10 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Nat’l Treasury Employees Union v. Chertoff,385 F. Supp. 2d 1 (D.D.C. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nat’l Treasury Employees Union v. Devine,577 F. Supp. 738 (D.D.C. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nat’l Treasury Employees Union v. Whipple,636 F. Supp. 2d 63, 71 (D.D.C. 2009), partially rev’d on other grounds, 452 F.3d 839 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22

OCONUS DOD Empl. Rotation Action Group v. Cohen,144 F. Supp. 2d 1 (D.D.C. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 ,12, 15

Paige v. Cisneros,91 F.3d 40 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Powers v. Ohio,499 U.S. 400 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

Ramirez v. U.S. Customs & Border Prot., 709 F. Supp. 2d 74 (D.D.C. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ramspeck v. Federal Trial Examiners Conference,345 U.S. 128 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Retired Chicago Police Ass'n v. City of Chicago,7 F.3d 584 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Richards v. Kiernan,461 F.3d 880 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sannier v. Merit Systems Protection Bd.,931 F.2d 856 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


vii

Cases Pages

Scott v. Bender,893 F. Supp. 2d 963 (N.D. Ill. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sec’y of State of Maryland v. Joseph H. Munson Co.,467 U.S. 947 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sierra Club v. Franklin County Power of Illinois, LLC,546 F.3d 918 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sierra Club v. Morton,405 U.S. 727 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

SSA v. Goodman,19 M.S.P.R 321 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Stewart v. Evans,275 F.3d 1126 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc.,517 U.S. 544 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

U.S. Dep't of Labor v. Triplett,494 U.S. 715 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Fausto,484 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Vitarelli v. Seaton,539 U.S. 535 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes & Regulations

5 U.S.C. § 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 U.S.C. §702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5 U.S.C. §704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

5 U.S.C. §1214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15


viii

Statutes & Regulations

5 U.S.C. §2302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

5 U.S.C. §7121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5 U.S.C. §7521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

5 C.F.R. §930.206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

20 CFR §404.951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

20 CFR §404.1512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

20 CFR §404.1520b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

42 U.S.C. §406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Other

Joint Report of Comm. on Government Affairs and Comm. on the Judiciary, Reform of Federal Regulation,

S. Rep. No. 1018, 96 Cong., 2d Sess., pt. 2 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . .th 2-3

Sen. Comm. on the Judiciary, Administrative Procedure Act Legislative History, S. Doc. No. 248, 79 Cong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 17


References to “Doc. #___, p. ___” are to the Docket in this case, and Document Number and1

page. References to “¶ ___” are to paragraphs of the Complaint.

1

PLAINTIFFS’ RESPONSE TO RULE 12(b)(1) MOTION TO DISMISS

This lawsuit challenges Benchmarks and a Directive issued by the Social Security

Administration (“Agency” or “SSA”) and imposed Agency-wide, requiring SSA administrative

law judges (“ALJ”) to decide 500-700 disability cases per year. The Court has jurisdiction under

the Administrative Procedure Act (“APA”). The litigation is not, as Defendant characterizes it,

“quintessentially a federal employment dispute.” (Doc. #13, p. 1). No redress or review is1

sought from disciplinary action against any ALJ. Rather, the sole relief sought is a declaration

that the Benchmarks and Directive constitute an illegal performance appraisal and production

quota in violation of the APA and Social Security Act, and that the Agency be enjoined from

imposing the existing quota, and any other such quota in the future. (¶¶ 109, 111).

That the production quota is not simply “internal agency guidance” (Doc. #13, p. 1), is

proven by the aggressive steps the SSA has taken to enforce the quota, alleged in detail by

Plaintiffs. (¶¶ 36-59). These actions also prove that the quota is “final agency action”

reviewable under the APA. And because this case does not involve rights under the Civil

Service Reform Act (“CSRA”), the CSRA is no impediment to Plaintiffs’ claims.

Members of Plaintiff Association of Administrative Law Judges (“AALJ”) and the

individual Plaintiffs, Judges Bretthauer, Henrie, and Martinez, have also alleged concrete,

particularized, and actual injury arising from the quota. That injury is not, as Defendant would

have the Court believe, “future and threatened personnel actions.” (Doc. #13, p. 2). Instead, it is

the ongoing infringement of the right of ALJs under the APA to decisional independence, as well


See ¶¶ 16-25 of the Complaint for a detailed description of the SSA disability claim hearing2

process and the duties and obligations of ALJs.

2

as other injuries specifically itemized by Plaintiffs and ignored by Defendant’s motion (¶¶ 72-

88, 89-95). Thus, Plaintiffs have alleged “injury-in-fact” and possess the requisite Article III

standing. Plaintiffs likewise have third-party standing to bring claims on behalf of the disability

claimants.

FACTS

Statutory ALJ Decisional Independence.

In enacting the APA, Congress intended hearing examiners (now referred to as ALJs) to

be a “special class of semi-independent subordinate hearing officers” entitled to “independence

and tenure.” Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 131-32 (1953).

The Supreme Court later underscored the importance of ALJ independence in Butz v. Economou:

“[T]here can be little doubt that the role of the modern federal hearingexaminer or administrative law judge ... is ‘functionally comparable’ tothat of a judge ... the process of agency adjudication is currently structuredso as to assure that the hearing examiner exercises his independentjudgment on the evidence before him, free from pressures by either theparties or other officials within the agency.”

438 U.S. 478, 513-514 (1978). The Agency’s ALJ position description confirms that an ALJ’s

adjudicatory powers and duties shall be carried out “in conformity with the [APA] and with full

and complete individual independence of action and decision.” (¶ 28). 2

In order to guarantee decisional independence, no agency, including the SSA, may

evaluate the performance of an ALJ. 5 C.F.R. §930.206. Congress has specifically noted that

“agencies are not, at any time, permitted to appraise ALJ performance.” Joint Report of Comm.

on Government Affairs and Comm. on the Judiciary, Reform of Federal Regulation, S. Rep. No.


See ¶¶ 31-32 of the Complaint for other ways, in addition to the prohibition against3

performance standards and appraisals, in which the APA, the Social Security Act and their implementingregulations guarantee ALJ decisional independence.

3

1018, 96 Cong., 2d Sess., pt. 2, at 69 (1980). Defendant does not dispute the statutory right toth

ALJ decisional independence. 3

Agencies have occasionally adopted production goals for ALJs based on allegedly

objective units of output. Fixed production quotas, however, as opposed to goals, are unlawful

performance appraisals in violation of the APA. Nash v. Bowen, 869 F. 2d 675, 680 (2d Cir.

1989) (“[t]he setting of reasonable production goals, as opposed to fixed quotas, is not in itself a

violation of the APA.”). An attempt by the SSA in the 1970s to implement performance

appraisals in the form of a production quota was challenged in Bono v. United States of America

Social Security Administration, U.S.D.C. W.D. Mo., No. 77-0819-CV-W-4. The SSA settled the

Bono case and entered a Settlement Agreement, agreeing it “will not issue directives or

memoranda setting any specific number of dispositions by ALJs as quotas or goals.” (Exhibit B

to Complaint, at ¶ 3). Defendant does not dispute that a fixed quota is unlawful under the APA.

The Agency Imposes A Fixed Quota Of 500-700 Decisions Per Year.

The Agency has adopted a series of “Benchmarks” requiring completion of certain ALJ-

controlled stages of the disability hearing process within a specified number of calendar days.

(¶ 36). The SSA has admitted there are no validation studies supporting the Benchmarks, which

are, in fact, arbitrary. (¶ 37). A Directive has also been issued by the Agency, requiring ALJs

“to issue 500-700 legally sufficient decisions each year.” (¶ 39, and Exhibit D to Complaint, at

p. 2). When the AALJ asked the Agency for support for the Directive, it was told no supporting

data or studies existed. (¶ 43). The Benchmarks and Directive are enforced together by the


The Merit System Protection Board (“MSPB”) in SSA v. Goodman, 19 M.S.P.R 321, 3314

(1984) (Exhibit A hereto), held that the SSA could not challenge the productivity of an ALJ “in theabsence of evidence demonstrating the validity of using [the SSA’s] statistics to measure comparativeproductivity.” The quota of 500-700 decisions is entirely unrelated to any statistical or other analysis ofactual SSA claims or historical ALJ productivity. (¶¶ 43, 62).

4

Agency as a fixed production quota. (¶¶ 40, 60).

The quota is referred to by the Agency as an “expectation [for] all ALJs,” and a

“minimum Agency expectation of 500 cases per year.” (¶ 45). It is based on commitments

made by SSA senior management to the Office of Management and Budget to deliver a

minimum number of nationwide “budgeted dispositions,” and reflects fiscal, political, and other

pressures unrelated to actual ALJ decision-making. (¶¶ 2, 63). The quota is wholly unrelated to

the complexity of the mix of cases assigned to any individual ALJ, and is arbitrary, capricious,

and lacks a rational basis. (¶¶ 2, 63-65, 84). 4

The SSA sets the quota formulaically based on the number of cases all ALJs must dispose

of in order to achieve the negotiated nationwide number of “budgeted dispositions.” (¶ 55-56).

For Fiscal Years 2011 and 2012, the quota was based on the requirement of 2.37 dispositions per

ALJ per day. (¶ 56). For example, in Fiscal Year 2011, the Eugene, Oregon Hearing Office was

assigned a quota of 3,920 dispositions, and each ALJ (with more than one year of experience)

was, therefore, assigned a quota of 585 dispositions. (¶ 57). The quota erroneously assumes that

every disability claim and every ALJ is fungible, the same arbitrary assumption that underlies all

quotas, and that every ALJ has the same access to competent staff and resources. (¶¶ 65-66).

The Agency has aggressively enforced the quota, including by formal disciplinary action,

reprimand, less formal discipline such as “counseling,” threats, and intimidation. (¶ 46). ALJs

who have not met the quota have had resources and staff withheld by the Agency, and have also


See ¶¶ 36-71 of the Complaint for Plaintiffs’ complete allegations about the implementation5

and enforcement of the quota.

The District of Columbia District Court almost thirty years ago struck down an SSA program6

that stressed reduction of allowance rates. While there was no evidence that any particular ALJ“consciously succumbed to such pressure,” it found “as a matter of common sense, that pressure mayhave intruded on the fact finding process and may have influenced some outcomes,” and that the program“could have tended to corrupt the ability of administrative law judges to exercise [ ] independence in thevital cases they decide.” AALJ v. Heckler, 594 F. Supp. 1132, 1142-43 (D.D.C. 1984).

5

had their requests for leave delayed or refused. (¶ 53). When an ALJ is unexpectedly

unavailable due to health or other reasons, the remaining ALJs in the Hearing Office are assigned

more dispositions so that, in the words of the Agency, they do their “fair share” to make sure the

Hearing Office meets its assigned quota. (¶ 54). 5

Plaintiffs Have Been Injured By The Quota.

The quota infringes on the right of ALJ decisional independence guaranteed by the APA,

the Social Security Act, and SSA regulations. (¶ 3). The Agency itself recognizes that it takes

less time to issue a favorable decision allowing benefits than a decision denying benefits. (¶ 72).

Thus, the quota tends to dictate the outcome in some cases in favor of allowing benefits, as

confirmed by the Agency’s own recent study finding a direct relationship between ALJ

productivity and allowance rates. (¶ 74). This is so even though the individual ALJ may

genuinely believe the quota has no effect on his or her decision-making. (¶ 75). 6

The quota also promotes shortcuts through the hearing process. (¶ 77). Thus, in other

cases, it results in arbitrary and legally insufficient ALJ decisions based on an incomplete

development and/or review of the factual record. (¶ 87). For example, ALJs have been advised

to set arbitrary time limits when reviewing a file (including by using an egg timer) to “force”

themselves to move on, with the result that they do not read all of the medical and lay evidence.


See ¶¶ 72-88 of the Complaint for a complete description of how the quota infringes on ALJ7

decisional independence. The tendency in some cases to award benefits also works to the detriment ofthe Social Security Trust Fund, taxpayers, and the public fisc. (¶ 3).

6

(¶ 77). ALJs do not allow cases to remain open post-hearing, even if necessary to develop the

claimant’s record, because they are pressured to move cases to comply with the quota. (¶ 78).

Decisional independence is compromised because ALJs cannot prepare for and conduct hearings

and decide cases in the manner they otherwise would, consistent with their statutory and

regulatory obligations. (¶ 79).

The varying ways in which the quota infringes on the decisional independence of ALJs

results in disparities in allowance rates among ALJs that academics and commentators agree is

“alarming.” (¶ 3). Whether that infringement results in an ALJ tending to issue more decisions

allowing benefits, or it impedes the ALJ’s ability to render carefully reasoned, impartial decisions

based on a fully developed record, the quota renders the outcome of the body of ALJ decisions

taken as a whole variable and arbitrary. (¶ 70). 7

Plaintiffs have suffered additional injuries from the quota as well: interference with the

ALJ oath of office and statutory and regulatory duties and obligations (¶¶ 24-25, 90, 93),

constructive reduction in salary and an adverse effect on career advancement (¶¶ 94-95), and

damage to professional reputation and public standing (¶¶ 51, 81-83, 91-92). The quota also

results in a violation of the procedural due process rights of disability claimants. (¶¶ 102-103).

APPLICABLE STANDARD FOR RULE 12(b)(1) MOTION

Plaintiffs bear the burden of establishing the Court’s jurisdiction by a preponderance of

the evidence. Scott v. Bender, 893 F. Supp. 2d 963, 970 (N.D. Ill. 2012). The allegations in the


Thus, Fane v. Locke Reynolds, LLP, 480 F.3d 534 (7th Cir. 2007) and Finger v. Orkin, Inc.,8

2009 WL 102982 *5 (N.D. Ill. Jan. 15, 2009), the cases principally relied upon by the Defendant, areinapposite.

7

Complaint must be accepted as true, and all inferences at the pleading stage are drawn in favor of

the Plaintiffs. Martin v. Shalala, 63 F.3d 497, 501 (7 Cir. 1995). th

ARGUMENT

I. PLAINTIFFS ARE “ENTITLED TO JUDICIAL REVIEW” UNDER THE APA.

Plaintiffs’ claims are brought under the judicial review provisions of the Administrative

Procedure Act, pursuant to which a person “suffering a legal wrong” or “adversely affected or

aggrieved by agency action” is “entitled to judicial review.” 5 U.S.C. §§702-706.

A. PLAINTIFFS HAVE SUFFERED A LEGAL WRONG AND ARE ADVERSELY AFFECTED AND AGGRIEVED BY SSA ACTION.

Plaintiffs have alleged several different ways in which ALJs, pursuant to 5 U.S.C. §702,

have suffered a legal wrong and been adversely affected or aggrieved by the unlawful Agency

quota: infringement of statutory ALJ decisional independence (¶¶ 70, 72-88), interference with

the ALJ oath of office and statutory and regulatory duties and obligations (¶¶ 24-25, 90, 93),

constructive reduction in salary and adverse effect on career advancement (¶¶ 94-95), and

damage to professional reputation and public standing (¶¶ 51, 81-83, 91-92). Most of these are

ignored by Defendant’s motion.

The injury alleged here is not, as Defendant states, “the manner in which the [SSA]

supervises [ ] ALJs” or an “email or communication from supervisors urging ALJs to perform

their duties.” (Doc. #13, p. 16). The Court will search the Complaint in vain for any attempt by8

ALJs to shirk their duties. In fact, Plaintiffs complain of the exact opposite; they want to comply


8

with their oath of office and statutory and regulatory duties and obligations. Because of the

quota, however, ALJs are unable to do so while still ensuring a fair and impartial adjudication of

disability claims. (¶¶ 72-88). The actionable, injury-producing conduct is the quota, not how it

is enforced by Agency supervisors.

B. THE QUOTA IS FINAL AGENCY ACTION REVIEWABLE UNDER THE APA.

The APA provides for judicial review of “final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. § 704. Plaintiffs’ claims meet both of these requirements.

1. The Benchmarks And Directive Constitute Final Agency Action.

Defendant argues that the quota is simply “internal agency guidance” and not final agency

action reviewable under the APA. (Doc. #13, p. 18). Agency action is final if it: (1) “mark[s]

the ‘consummation’ of the agency’s decisionmaking process;” and (2) is “one by which ‘rights or

obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v.

Spear, 520 U.S. 154, 178 (1997) (citations omitted). Withholding judicial review until agency

action is final “protect[s] the agencies from judicial interference until an administrative decision

has been formalized and its effects felt in a concrete way by the challenging parties.” OCONUS

DOD Empl. Rotation Action Group v. Cohen, 144 F. Supp. 2d 1, 6 (D.D.C. 2000) (citation

omitted).

The quota has been in place for several years. (¶¶ 36-44). It has been aggressively

enforced by the Agency, including by formal disciplinary action, reprimand, less formal

discipline such as “counseling,” threats, and intimidation. (¶¶ 45-71). And the quota has injured

ALJs and disability claimants alike. (¶¶ 72-95, 102-105). These allegations must be taken as

true. Hence, there is no doubt the quota is alleged to be “formalized” and “its effects felt in a


9

concrete way.” See OCONUS DOD, 144 F. Supp. 2d at 6. The decision in OCONUS DOD is

instructive. There, civil servants challenged “Draft Subchapter 1230,” implemented by the

Department of Defense to limit the amount of time civilian employees could serve overseas. The

agency claimed that Draft Subchapter 1230 was just that – a draft – and not final agency action.

The court disagreed, holding that because the agency had no intention of changing the “draft” and

was making decisions based on Draft Subchapter 1230, it was reviewable under the APA as final

agency action. Id. at 6.

Here, like Draft Subchapter 1230, the Benchmarks and Directive represent the

“consummation of the agency’s decisionmaking process” with respect to the number of decisions

required from ALJs. The Agency has not wavered since 2007 from its requirement that ALJs

must move cases along at a prescribed clip and produce between 500-700 decisions each year.

(¶¶ 36, 39, 55-59). The SSA itself characterizes 500-700 decisions as an “expectation.” (¶ 45).

Thus, the quota has conclusively determined the “obligations” of ALJs to produce 500-700

decisions, and “legal consequences [have] flow[ed].” See Bennett, 520 U.S. at 178. At a

minimum, whether the quota constitutes final agency action is a question of fact not properly

adjudicated at this preliminary stage of the proceedings. See Martin, 63 F.3d at 501.

2. Plaintiffs Have No Other Adequate Judicial Remedy.

Defendant suggests Plaintiffs have “special and adequate review procedures” available

under the Civil Service Reform Act (“CSRA”). (Doc. #13, p. 8 n. 2). For the reasons discussed

immediately below, however, the CSRA does not provide an adequate judicial remedy for

Plaintiffs’ challenge to the quota. The central purpose of the APA is to provide “a broad

spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903


5 U.S.C. §2302(a)(2)(A)(xii). 9

10

(1988) (alternative action under Tucker Act could not provide declaratory and injunctive relief

plaintiff sought). Because “the Administrative Procedure Act’s ‘generous review provisions’

must be given a ‘hospitable’ interpretation,” Abbott Labs v. Gardner, 387 U.S. 136, 140-41

(1967) (citations omitted), Plaintiffs’ APA claims should not be dismissed.

C. THE EXCEPTIONS OF SECTION 701 OF THE APA DO NOT APPLY.

Section 701 of the APA provides that Chapter 7 (allowing claims to be brought under the

APA) applies “except to the extent that (1) statutes preclude judicial review; or (2) agency action

is committed to agency discretion by law.” 5 U.S.C. § 701(a). Neither exception applies here.

1. The CSRA Does Not Preempt Plaintiffs’ Claims.

a. Plaintiffs are not seeking relief for a violation of rights under the CSRA.

Citing Elgin v. Department of Treasury, 132 S.Ct. 2126 (2012), and United States v.

Fausto, 484 U.S. 439 (1988), Defendant contends Plaintiffs’ claims are preempted by the CSRA.

(Doc. #13, p. 7). The CSRA, however, protects federal employees only “when their rights under

the statute are violated.” Grosdidier v. Chairman, Broadcasting Bd. of Gov., 560 F.3d 495, 497

(D.C. Cir. 2000) (emphasis added). Those rights include: (1) protecting ALJs specifically under

5 U.S.C. §7521 from five enumerated agency actions – removal, suspension, reduction in grade,

reduction in pay, or furlough – without “good cause;” and (2) the right of all federal employees,

including ALJs, under 5 U.S.C. §2302 to be free from “prohibited personnel practice[s]” taken

against an employee, including “a significant change in ... working conditions,” based on9

improper motives, such as discrimination, coercion of political activity, nepotism, or retaliation.


An alleged “prohibited personnel practice” under 5 U.S.C. §2302 must first be investigated10

by the Office of Special Counsel. 5 U.S.C. §1214.

11

5 U.S.C. §2302(b)(1)-(12). Plaintiffs are not seeking relief for a violation of rights under either10

§7521 or §2302, or any other rights redressable under any other provision of the CSRA.

Rather, they challenge a violation of their rights under the APA to freedom “from agency

interference,” and, specifically, their right to decisional independence. Nash v. Califano, 613

F.2d 10, 16 (2d Cir. 1980). Not every unlawful action taken against a federal employee

constitutes a violation of the CSRA. For example, actions “such as wiretapping, warrantless

searches, or uncompensated takings,” do not fall within the CSRA’s statutory scheme. Bush v.

Lucas, 462 U.S. 367, 385 n.28 (1983). See also Stewart v. Evans, 275 F.3d 1126, 1130 (D.C.

Cir. 2002) (Bivens action not precluded by CSRA). Similarly, a Federal Tort Claims Act action

for negligent supervision based on an agency’s failure to prevent plaintiff’s rape by her

supervisor is not precluded by the CSRA. Brock v. United States, 64 F.3d 1421, 1425 (9th Cir.

1995). Where, as here, an employee’s claim does not involve a specific “challenged employment

action,” Elgin, 132 S.Ct. at 2136, the CSRA does not apply.

In each of the cases cited by Defendant where claims were found to be preempted,

plaintiffs sought judicial relief outside the CSRA for specific adverse personnel actions taken

against them individually. See Elgin, 132 S.Ct. at 2131 (individual relief from discharge

asserting Constitutional challenge); Fausto, 484 U.S. at 440 (individual relief from suspension

citing Back Pay Act); Richards v. Kiernan, 461 F.3d 880, 882-883 (7th Cir. 2006) (individual

relief from constructive discharge through Bivens action); Paige v. Cisneros, 91 F.3d 40, 42 (7th

Cir. 1996) (individual relief from termination based on alleged due process violations); Ayrault v.


12

Pena, 60 F.3d 346, 347 (7th Cir. 1995) (same); Graham v. Ashcroft, 358 F.3d 931, 932 (D.C.

Cir. 2004) (individual relief from censure under Vitarelli v. Seaton, 539 U.S. 535 (1959)); Fligiel

v. Samson, 440 F.3d 747, 749 (6th Cir. 2006) (individual relief from transfer under APA);

Broadway v. Block, 694 F.2d 979, 980 (5th Cir. 1982) (same). Elgin and Fausto and their

progeny turn on the source of the employee’s right not to be discharged, suspended, etc. Because

the CSRA was the source of the employee’s right in each of those cases, and not, for example,

the Constitution or the Back Pay Act, the claims were required to be pursued under the CSRA.

Here, the APA, and not the CSRA, is the source of the right to ALJ decisional

independence. The claims Plaintiffs have brought here – seeking Agency-wide, prophylactic

relief from a nationwide policy impacting hundreds of ALJs – have long been cognizable under

the APA. See, e.g., Nat’l Treasury Employees Union v. Devine, 577 F. Supp. 738, 745 (D.D.C.

1983) (union action alleging that agency rules were “not in accordance with law” not preempted

by CSRA), aff’d, 773 F.2d 114, 117 n.8 (D.C. Cir. 1984). APA claims, such as those here, that

do “not seek to address adverse personnel actions regarding specific employees,” are not

precluded by the CSRA. Nat’l Treasury Employees Union v. Whipple, 636 F. Supp. 2d 63, 71

(D.D.C. 2009), partially rev’d on other grounds, 452 F.3d 839 (D.C. Cir. 2006) (union challenge

under APA to program allowing agency to use interns to fill vacant positions). See also Nat’l

Treasury Employees Union v. Chertoff, 385 F. Supp. 2d 1, 23 (D.D.C. 2005) (“The APA has

often been found to provide jurisdiction for a federal court to hear union challenges to agency

regulations or policies of general application on the grounds that they were inconsistent with a

statute”); OCONUS DOD, 144 F. Supp. 2d at 7-8 (allowing review under APA because plaintiffs

were not “challeng[ing] any personnel decisions made in any individual cases”). Plaintiffs,


In Filebark, the court, invoking the CSRA, ultimately did not allow plaintiffs to pursue11

judicial remedies because they were challenging specific personnel actions taken against themindividually – classification of plaintiffs’ salary levels. 555 F.3d at 1011. Similarly, both FLMRA casescited by Defendant, Ramirez v. U.S. Customs & Border Prot., 709 F. Supp. 2d 74, 81 (D.D.C. 2010), andAFGE v. Sec’y of the Air Force, 841 F. Supp. 2d 233, 237 (D.D.C. 2012), dismissed claims because theFLMRA required grievance of complaints relating to action taken against them individually. Once again,Plaintiffs are not seeking relief from specific action taken against an individual, and their claims are notprecluded under the CSRA.

That plaintiff AALJ has in the past availed itself of grievance procedures in the collective12

bargaining agreement to challenge violations of the APA is of no moment. (Doc. #13, p. 11). As

13

therefore, have properly brought their claims under the APA.

b. Plaintiffs are not required to exhaust administrative remedies under the Federal Labor Management Relations Act.

Defendant suggests Plaintiffs must exhaust administrative remedies under the Federal

Labor Management Relations Act (“FLMRA”), including pursuing an unfair labor practice

charge or a grievance under the collective bargaining agreement. (Doc. #13, pp. 9-11). There is

nothing in the FLMRA, however, requiring Plaintiffs to pursue these administrative remedies.

The FLMRA provides that negotiated grievance procedures in a collective bargaining

agreement “shall be the exclusive administrative procedure for resolving grievances which fall

under its coverage.” 5 U.S.C. § 7121(a)(1) (emphasis added). It does not, however, preclude

available judicial remedies, as Defendant contends. See Filebark v. United States, 555 F.3d

1009, 1012 (D.C. Cir. 2009). Because the APA provides an independent legal basis for11

jurisdiction, Plaintiffs’ claims may proceed regardless of the availability of grievance or other

administrative procedures. Id. See also Mudge v. United States, 308 F.3d 1220, 1228-29 (Fed.

Cir. 2002) (allowing plaintiff to proceed under Tucker Act); Asociacion de Empleados Del Area

Canalera v. Panama Canal Comm’n, 329 F.3d 1235, 1241 (11th Cir. 2003) (allowing plaintiffs

to pursue claims under Panama Canal Act, APA, and Back Pay Act). 12


Filebark and Mudge make clear, those grievance procedures are the exclusive administrative remediesavailable to the AALJ, which also has the right to pursue the judicial remedies provided by the APA. Interestingly, it is the Agency that has in the past taken the position that the AALJ cannot use grievanceprocedures to challenge Agency action that violates the APA. See Int’l Fed’n of Prof’l & TechnicalEng’rs Assoc of Admin. Law Judges Judicial Council No. 1 and Soc. Sec. Adm’n, Office of DisabilityAdjudication and Review, Nat’l Hearing Ctr., Richmond, VA, 66 F.L.R.A. 763 (July 13, 2012) (Exhibit B

hereto) (cited by Defendant at Doc. #13, p. 11).

14

c. Plaintiffs do not claim “special status” under the CSRA.

Defendant accuses Plaintiffs of claiming some sort of “special status,” citing Gray v.

Office of Personnel Mgmt., 771 F.2d 1504 (D.C. Cir. 1985). (Doc. #13, p. 12). Plaintiffs only

seek the judicial review of final agency action to which they are “entitled” under the APA, and

Gray has nothing to do with their claims.

Defendant also argues (Doc. #13, p. 13) that the recent decision in Mahoney v. Donovan,

2013 U.S. App. LEXIS 13272 (D.C. Cir. June 28, 2013), requires dismissal of Plaintiffs’ claims.

In Mahoney, an ALJ challenged specific actions of his supervisor that he claimed violated his

right under the APA to decisional independence. The Mahoney court concluded that whether

Judge Mahoney’s own decisional independence was infringed “certainly sounds like a working

condition” under 5 U.S.C. §2302, and that his claims should, therefore, be treated as a “personnel

action subject to investigation by the Office of Special Counsel” under 5 U.S.C. §2302. Id. at **

10-11. The decision in Mahoney does not compel dismissal here.

First, the Mahoney court’s analysis under the CSRA is wrong. Even assuming the APA-

guaranteed right to ALJ decisional independence is a “working condition,” a proposition for

which the Mahoney court cited no authority, the Office of Special Counsel (“OSC”) does not

have the power to investigate a change in “working conditions” generally. Instead, the OSC is

only authorized under 5 U.S.C. §1214 to investigate “prohibited personnel practices,” including a


Defendant also relies on Sannier v. Merit Systems Protection Bd., 931 F.2d 856 (Fed. Cir.13

1991). The sole issue in Sannier was whether plaintiffs had a cause of action for constructive dischargeunder §7521 of the CSRA based upon alleged interference with their decisional independence. The courtheld that, as a matter of law, the “actions alleged did not constitute constructive removal,” and, therefore,there was no jurisdiction. Id. at 857. The decision in Sannier has no precedential value here as there isno claim of constructive discharge, and no claim seeking individual relief from a specific personnelaction against any ALJ. And unlike the plaintiff in Sannier, Plaintiffs here have made detailedallegations (¶¶ 72-95) of how the quota has interfered with ALJ decisional independence.

15

change in “working conditions,” motivated by improper reasons, such as discrimination, coercion

of political activity, nepotism, or retaliation. 5 U.S.C. §§1214, 2302(b)(1)-(12).

Second, outside of §2302, only five agency actions against ALJs are redressable under the

CSRA, and “significant changes in. . . working conditions” is not among them. 5 U.S.C. §7521.

“The APA creates a comprehensive bulwark to protect ALJ from agency interference.” Nash,

613 F.2d at 16. There is nothing in the APA or CSRA to suggest that the SSA is free to impose

an otherwise unlawful quota that interferes with ALJs’ decisional independence, as long as the

agency does not violate §7521 or §2302. Third, Mahoney did not involve a challenge to Agency-

wide action affecting hundreds of ALJs. Even if the Mahoney court were correct that Mahoney

should have pursued his individual claim through the OSC, the OSC “lacks the power to

invalidate any agency policy or action.” OCONUS DOD, 144 F. Supp. 2d at 7. Thus, Plaintiffs’

claims here are properly brought under the APA. 13

2. The Quota Is Not Action Committed To Agency Discretion.

Defendant’s final argument under the APA, reduced to a footnote, is that Plaintiffs’

claims are not actionable because the quota is committed to agency discretion by law. (Doc. #13,

p. 18 n. 10). The single case upon which she relies, Carducci v. Regan, 714 F.2d 171 (D.C. Cir.

1983), is inapposite. In Carducci, the court dismissed claims seeking review of plaintiff’s

assignment of a new job title without any change in pay grade, concluding that the failure to


16

include remedies under the CSRA for such a minor personnel action, indicated that it must “be

deemed ‘committed to agency discretion by law.’” Id. at 174.

Carducci has no relevance here. First, as explained above, Plaintiffs are not seeking

individual relief from a specific personnel action. Second, the quota is not a minor action at all.

Third, the Agency certainly cannot have discretion to impose an unlawful quota. Fourth, as the

Supreme Court has explained, “the general exception to reviewability provided by §701(a)(2) for

action ‘committed to agency discretion’ remains a narrow one.” Heckler v. Chaney, 470 U.S.

821, 838 (1985). There is no reason to apply that narrow exception to allow the SSA to infringe

on ALJ decisional independence guaranteed by the APA.

II. PLAINTIFFS HAVE ARTICLE III STANDING TO BRING THEIR CLAIMS.

Article III standing requires injury-in-fact, traceable to the challenged action, that is

redressable by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); American

Federation of Government Employees Local 2119 v. Cohen, 171 F.3d 460, 466 (7th Cir. 1999).

A. PLAINTIFFS HAVE SUFFERED INJURY-IN-FACT.

To have standing, Plaintiffs must have suffered an injury-in-fact that is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or hypothetical. Sierra Club v.

Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir. 2008). The injuries alleged

by Plaintiffs are not, as Defendant posits, “future and threatened personnel actions.” (Doc. #13,

p. 2). They are concrete, particularized, and actual, as described below.

1. Infringement of Statutory Right Of ALJ Decisional Independence.

As already noted, Defendant does not dispute the right to ALJ decisional independence.

Instead, she argues that infringement of decisional independence “does not harm an ALJ.” (Doc.


As alleged in the Complaint, the quota is arbitrary, capricious, and lacks a rational basis (¶¶14

2, 65, 84), and is based on outside fiscal, political, and other pressures (¶¶ 63-64). These allegationsmust be taken as true.

17

#13, p. 16). It is well-settled, however, that when Congress grants a right by statute, deprivation

of that right satisfies the injury-in-fact requirement of Article III standing. Kyles v. Guardian

Sec. Services, Inc., 222 F.3d 289, 294 (7th Cir. 2000); Edwards v. First American Corp., 610

F.3d 514, 517 (9th Cir. 2010). Indeed, ALJ standing based on infringement of decisional

independence granted by the APA has long been recognized. Nash, 613 F.2d at 15-16 (“we

cannot say that ALJs are so disinterested as to lack even standing to safeguard their own

independence”); Heckler, 594 F. Supp. at 1140 (“the APA contains a number of provisions

designed to safeguard the decisional independence of ALJs”). See also Ramspeck, 345 U.S. at

131-33; Butz, 438 U.S. at 512-14; S.S.A. v. Goodman, 19 M.S.P.R. at 327 (ALJs protected from

“arbitrary or politically motivated supervision”). 14

Defendant mistakenly argues that the right to decisional independence belongs solely to

disability claimants. (Doc. #13, pp. 16-17). First, the ALJ, not the claimant, makes the disability

decision; thus, granting a right of decisional independence to the claimant is a non sequitur.

Second, claimants are already guaranteed due process rights by the United States Constitution,

giving them a right to decisional independence under the APA protecting those same rights is

redundant. Third, judicial precedent and the APA legislative history confirms Congress’s intent

to grant decisional independence to ALJs. E.g., Heckler, 594 F. Supp. at 1143 (SSA

“insensitiv[e] to that degree of decisional independence the APA affords to administrative law

judges”); Sen. Comm. on the Judiciary, Administrative Procedure Act Legislative History, S.

Doc. No. 248, 79 Cong., at 327 (the APA “provides very specific machinery for independentth


The only other case Defendant cites with regard to ALJ standing based on an infringement of15

decisional independence is Goodman v. Svahn, 614 F. Supp. 726 (D.D.C. 1985). The claims inGoodman, however, arose out of a removal action against the plaintiff ALJ which had already beendismissed by the MSPB. Thus, the court found the plaintiff “has not suffered any injury” ripe for reviewunder the APA. 614 F. Supp. at 729. This case does not arise out of a removal action against anyindividual ALJ, and Plaintiffs have alleged in detail how they have been injured. (¶¶ 72-88, 89-95).

18

[ALJs]”). And fourth, that the right to decisional independence belongs to the ALJs themselves

is underscored by the Agency’s own ALJ position description, confirming “full and complete

individual independence of action and decision.” (¶ 28).

Defendant’s reliance on Fernandez v. Donovan, 760 F. Supp. 2d 31, 37 n. 5 (D.D.C.

2011), is misplaced. Fernandez did not dispute the holding of Nash v. Califano, that ALJs have

standing “to safeguard their judicial independence.” Id. Instead, the court found that the claims

there were “not analogous to Nash” because the allegations were not “broad enough to affect

plaintiff’s actual decision making.” Id. Plaintiffs here, unlike in Fernandez, have alleged at

length how the quota affects actual decision making (¶¶ 3, 70, 72-88), and reaches “virtually

every aspect of an ALJ’s daily role.” See Nash, 613 F.3d at 16. These allegations must be taken

as true. 15

Defendant’s motion forecloses the possibility that different plaintiffs can suffer injury

from the same wrongful Agency conduct. Yet, Defendant cites no authority for this all or

nothing proposition. ALJs and disability claimants have each been injured by the unlawful

quota: the ALJs have been deprived of their statutory right to decisional independence, and the

claimants have been injured by the resulting violation of their due process rights. See Carter v.

Jury Commission of Greene County, 396 U.S. 320, 329-330 (1970) (both criminal defendants

and potential jurors harmed by unlawful systematic jury discrimination).


19

2. Interference With ALJ Oath Of Office And Federal Duties.

ALJs take an oath to uphold the United States Constitution, including protecting the due

process rights of disability claimants. (¶ 90). They are charged by statute and regulation to,

among other things: (1) “look fully into the issues,” question witnesses, and accept documents

into evidence; (2) issue subpoenas, if necessary, for the full presentation of a case; (3) issue a

decision that includes findings of fact and reasons for the decision; (4) develop a complete

medical history of the claimant for the preceding 12 months, and provide evidence at the hearing

about the existence of work available for the claimant; (5) consider all the evidence in the record;

and (6) obtain additional evidence, if necessary, to complete the factual record. (¶ 93).

The ALJ oath of office and the above and other statutory and regulatory duties and

obligations reflect the requirement that disability claimants receive a full and fair hearing on their

claims consistent with their due process rights. (¶¶ 22-25). It is the resulting duty of ALJs to

provide that full and fair hearing. The quota, however, interferes with the ALJs’ performance of

that duty, resulting in arbitrary and incomplete decisions. (¶¶ 70, 90). These allegations must be

taken as true. It is well-recognized that interference with a federal duty constitutes injury-in-fact,

affording an alternative basis for Article III standing. Board of Education v. Allen, 392 U.S. 239,

241 n.5 (1968) (oath to support United States Constitution); Aguayo v. Richardson, 473 F.2d

1090, 1100-01 (2d Cir. 1973).

3. Constructive Salary Reduction And Adverse Effect On Career Advancement.

ALJs work longer hours without additional compensation in an attempt to comply with

the unlawful quota, resulting in a constructive salary reduction. (¶ 94). Failure to comply with

the quota also adversely impacts ALJ career advancement. (¶ 95). These types of economic


20

harm constitute injury-in-fact and support Article III standing. Sierra Club v. Morton, 405 U.S.

727, 733 (1972)(“palpable economic injuries have long been recognized as sufficient to lay the

basis for standing”); D’Amico v. Schweiker, 698 F.2d 903, 905 (7th Cir. 1983) (ALJ constructive

salary reduction).

4. Damage to Professional Reputation and Public Standing.

ALJs unable to meet the quota are publicly shamed by the dissemination of “productivity

data” by the Agency, harming their professional reputation among their peers. (¶ 91). Because

of the quota’s emphasis on the quantity of dispositions over quality, members of the federal

judiciary have been highly critical of the work of ALJs. (¶ 92). This is especially true in the

Seventh Circuit, which has publicly criticized ALJ decisions. See Bjornson v. Astrue, 671 F.3d

640, 644-46 (7th Cir. 2012). As a result, ALJs have been demeaned in the eyes of the federal

judiciary, and the public standing of ALJs has suffered. (¶ 92). The damage to professional

reputation and public standing also constitutes injury-in-fact supporting Article III standing.

Meese v. Keene, 481 U.S. 465, 472-76 (1987) (interest in reputation confers standing).

B. PLAINTIFFS’ INJURIES ARE TRACEABLE TO THEQUOTA AND REDRESSABLE BY THE RELIEF SOUGHT.

Defendant’s lone argument with respect to traceability, or causation, is that Plaintiffs

have not “established that any of the alleged personnel actions threatened or taken against them”

were due to the quota. (Doc. #13, p. 17). As noted previously, this case is not about any

personnel action – past, present, or future. Plaintiffs’ injuries are the infringement of decisional

independence and other injuries alleged but totally ignored by Defendant’s motion, and are

specifically alleged to have been caused by the quota. (¶¶ 3, 70, 72-88, 89-95, 96-101, 103).

The sole argument made by Defendant on whether Plaintiffs’ injuries are redressable is


21

also misguided. She contends that even if the injunctive relief requested is granted, that

“Plaintiffs are still permitted to be supervised and still expected to do their job duties.” (Doc.

#13, p. 17). Plaintiffs, of course, do not seek an end to proper supervision and are anxious to

perform their jobs without interference from the unlawful quota. The requested relief enjoining

Defendant from “utilizing and enforcing the Benchmarks and Directive” or any future quota will

fully redress the injuries alleged by Plaintiffs. (¶ 111).

C. PLAINTIFF AALJ HAS ASSOCIATIONAL STANDING.

Plaintiff AALJ meets all three requirements for associational standing: (1) its members

have standing to sue in their own right; (2) the interests AALJ seeks to protect are germane to its

purpose; and (3) neither the claim asserted nor the relief requested requires the participation of

individual AALJ members. United Food & Commercial Workers Union Local 751 v. Brown

Grp., Inc., 517 U.S. 544, 553 (1996). First, as already demonstrated above, AALJ members have

suffered injuries that are specific, concrete, and actual, including infringement of their statutory

decisional independence, and other injuries resulting from the quota specifically alleged in the

Complaint. (¶¶ 72-88, 89-95). Thus, they have standing to sue in their own right.

Second, the Complaint alleges that the purpose of the AALJ includes “to preserve,

promote, and improve” the “protections provided by the United States Constitution, the Social

Security Act, the Administrative Procedure Act, and all other federal laws.” (¶ 5). Upholding

statutory ALJ decisional independence, as well as protecting the professional reputation, public

standing, and career interests of ALJs, is clearly germane to the purpose of the AALJ. See Hunt

v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 344 (1977) (protecting apple growers

and dealers germane to advertising commission’s purpose of enhancing market for apples);


22

Appraisers Coal v. Appraisal Inst., 845 F. Supp. 592, 600 (N.D. Ill. 1994) (where no “profound

conflict” exists, “germaneness test is satisfied”).

Finally, Defendant does not contest that the participation of individual ALJ members is

required, nor could she. Because an Agency-wide quota has been imposed, individualized proof

for each ALJ will not be required to prove Plaintiffs’ claims or to grant the declaratory and

injunctive relief sought. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 601-

03 (7th Cir. 1993); Whipple, 636 F. Supp. 2d at 74 (“individual participation is not normally

necessary when an association seeks prospective or injunctive relief for its members”) (citation

omitted).

D. THE INDIVIDUAL PLAINTIFFS HAVE ADEQUATELY ALLEGED INJURY.

Defendant asserts the individual Plaintiffs have not alleged concrete injury-in-fact. (Doc.

#13, p. 16). To the contrary, Judge Bretthauer has been unable to meet the quota, and alleges she

has been subjected to “performance related counseling” by the Agency. (¶ 96). Judge Henrie has

been unable to meet the quota, though he works after hours without compensation. (¶ 98). He

alleges that the quota infringes his decisional independence, and finds it “impossible” to comply

with the quota “without compromising the quality of his decision-making and the procedural due

process rights of disability claimants.” (¶¶ 98, 99). Judge Martinez likewise alleges the quota

“directly infringes” his decisional independence. (¶ 101). He has been threatened with loss of

support personnel if he does not increase the number of scheduled hearings. (¶ 100). The

individual Plaintiffs have adequately alleged injury-in-fact resulting from the quota.

E. PLAINTIFFS MAY ASSERT THE CLAIMS OF THE DISABILITY CLAIMANTS.

To establish third-party standing, Plaintiffs must allege: (1) an injury to their own rights


The responsibility to gather evidence makes the relationship between an ALJ and claimant16

closer than that of a typical judge and litigant. For instance, if at the close of a plaintiff’s case in atypical judicial setting, plaintiff has failed to introduce evidence supporting all of the elements of his orher claim, the judge will enter a directed verdict. The SSA ALJ, on the other hand, is obligated todevelop the factual record further in such a circumstance. See 20 CFR §§404.951, 404.1512, 404.1520b.

Defendant contends that the close relationships sufficient to confer standing typically arise in17

the context of lawyer-client or doctor-patient relationships. (Doc. #13, p. 20). Even if this were true,just as a lawyer is a steward of the client’s legal rights and a doctor is the steward of the patient’s health,so too is an ALJ, by statute and their oath of office, a steward of the claimant’s due process rights. (¶ 22,ALJ is required by the Social Security Act and case law to “scrupulously protect the interests of theclaimant in receiving a full and fair due process hearing.”)

23

and interests; (2) a close relationship with the claimants; and (3) that the ability of the claimants

to advance their own rights has been hindered. See Powers v. Ohio, 499 U.S. 400, 411 (1991).

As already demonstrated, Plaintiffs have suffered injury to their own rights and interests for

third-party standing purposes, even if, as Defendant contends, some or all of those injuries do not

confer Article III standing or are redressable under the CSRA. Defendant admits the final two

requirements for third-party standing involve “factual determinations” (Doc. #13, p. 19), and her

attempt to dispute these “prudential” requirements must fail at this early stage of the proceedings.

Plaintiffs have alleged a sufficiently close relationship with the disability claimants based

on the federal duty of every ALJ to provide claimants a full and fair hearing consistent with their

due process rights. (¶¶ 22-25, 70, 90, 104). See U.S. Dep't of Labor v. Triplett, 494 U.S. 715,16

720 (1990) (attorney had third-party standing on behalf of black lung benefit claimants); Sec’y of

State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954-958 (1984); Caplin & Drysdale,

Chtd. v. United States, 491 U.S. 617, 623-624 n. 3 (1989). Defendant’s argument that ALJs17

are “the ones allegedly causing injury to the claimants” (Doc. #13, p. 19), ignores that it is the

Agency that has imposed the quota, and is akin to blaming the grocery cashier for charging more

when the price of milk increases.


Also unavailing is Defendant’s argument that certain claimants may benefit from the quota. 18

(Doc. #13, p. 20). The best that can be said about the quota is that it results in variable and arbitrarydecision making, based on an undeveloped factual record. (¶¶ 3, 70, 87). Even if some individualclaimants are benefitted by the arbitrary justice resulting from the quota, all claimants are subject to thepotential harm of deprivation of the right to a full and fair hearing consistent with their due processrights. (¶¶ 70, 90).

24

Defendant’s citation to D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983), is also

unavailing. (Doc. #13, pp. 20-21). First, unlike the Agency-required instruction at issue in

D’Amico, Plaintiffs here challenge an unlawful quota they allege impairs their actual decision-

making. (¶¶ 3, 70, 72-88). These allegations must be taken as true. Further, while the required

instruction in D’Amico impacted all ALJs uniformly, the quota here impacts ALJs in varying

ways, resulting in disparities in decisions that academics and commentators agree is “alarming.”

(¶ 3). Thus, claimants are not capable of assessing how the quota impacts their individual cases.

The D’Amico court also specifically noted that a challenge to a “housekeeping” measure, such as

the quota here (and like the agency action in Nash), does not compromise ALJ impartiality or

their ability to assert third-party standing on behalf claimants: “the challenge, as in Nash, to

housekeeping as distinct from substantive directives does not put the judicial officer who sues to

enjoin it in the position of taking sides in controversies that he is supposed to adjudicate

impartially.” 698 F.2d at 907.

Finally, the Complaint alleges disability claimants are hindered from challenging the

quota because they are unaware of how the quota is used and enforced, and that they lack the

resources and legal acumen to wage a costly Constitutional challenge against the Agency. (¶ 105).

These allegations must be taken as true, and Defendant’s motion raises issues of fact not ripe for

adjudication at this stage of the litigation. Defendant’s contention that claimants are free to18

raise the quota in an appeal of an individual disability decision to federal court misses the point.


Of course, the CSRA is no way an impediment to the claims asserted by Plaintiffs on behalf19

of the disability claimants.

25

(Doc. #13, p. 21). Doing so would greatly expand the nature of an otherwise straightforward

appeal, involve burdensome discovery, be costly, and delay the award of benefits. Fee awards for

attorneys representing claimants are capped by the SSA (42 U.S.C. § 406), a substantial

disincentive to a claimant’s attorney raising the complex issues surrounding the quota on an

appeal in an individual case. See Powers, 499 U.S. at 415 (hindrance prong satisfied if litigation

is unlikely for practical reasons).

A claimant also faces genuine obstacles to filing an original action in federal court. Such

an action would be costly and involve a complex set of factual issues relating to Agency action

nationwide in scope, all of which would prevent lower income and legally unsophisticated

claimants from taking on the task of litigating the quota. (¶ 105). And because the Complaint

seeks only declaratory and injunctive relief, it is unlikely an attorney would take the case on

behalf of a claimant on a contingent basis. 19

CONCLUSION

For the reasons stated above, Defendant’s Rule 12(b)(1) Motion to Dismiss should be

denied.


26

Dated: August 30, 2013 Respectfully submitted,

ASSOCIATION OF ADMINISTRATIVE LAWJUDGES, JUDICIAL COUNCIL NO. 1, IFPTE,AFL-CIO & CLC; CYNTHIA M.BRETTHAUER; ROBIN HENRIE; andGILBERT MARTINEZ

By: /s/ Cynthia H. Hyndman One of Their Attorneys

C. Philip CurleyCynthia H. HyndmanLaura KleinmanROBINSON CURLEY & CLAYTON, P.C.300 South Wacker DriveSuite 1700Chicago, Illinois 60606(312) 663-3100 Telephone(312) 66-0303 [email protected]@[email protected]

Of Counsel:Robert H. Stropp, Jr.Diana M. BardesMOONEY, GREEN, SAINDON, MURPHY & WELCH, P.C.1920 L Street, N.W.Suite 400Washington, D.C. 20036(202) 783-0010 Telephone (202) 783-6088 [email protected]@mooneygreen.com







CERTIFICATE OF SERVICE

I hereby certify that on August 30, 2013, I caused copies of the foregoing Plaintiffs’Response to Rule 12(b)(1) Motion to Dismiss to be filed with the Clerk of the District Courtusing the CM/ECF system, which sent notification to all counsel of record.

/s/ Cynthia H. Hyndman


Documents

AALJ Association of Administrative Law Judges - IN THE UNITED … · 2017-07-31 · reviewable under the APA. And because this case does not involve rights under the Civil Service