Association of Administrative Law Judges, Judicial Council No. 1 IFPTE, AFL-CIO & CLC et al v. Colvin

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/26/2014:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
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,
Plaintiffs,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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No. 13-cv-2925
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiffs, members of the Association of Administrative Law Judges et al (collectively
“ALJs”), filed a complaint challenging a Benchmarks and Directive issued by the Social
Security Administration (“Agency” or “SSA”) imposing an agency-wide requirement that SSA
administrative law judges decide 500 – 700 cases per year. The ALJs allege that SSA has
imposed an illegal quota infringing on the ALJ’s right to decisional independence under the
Administrative Procedures Act (“APA”). Defendant, Carolyn Colvin, Commissioner of the SSA,
moves to dismiss pursuant to Rule 12(b)(1) arguing that this Court lacks subject matter
jurisdiction because the Civil Service Reform Act (“CSRA”) precludes jurisdiction and, even if
this Court had jurisdiction the plaintiffs lack standing. For the reasons stated herein the Court
grants the motion.
Background
Plaintiffs challenge a violation of their rights under the Administrative Procedure Act
(“APA”) to “freedom from agency interference, and specifically, their right to decisional
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independence.” The Agency adopted a series of “Benchmarks” requiring the completion of
certain ALJ controlled stages of the disability hearing process within a specified number of
calendar days. The Agency also issued a Directive, requiring all ALJS “to issue 500-700 legally
sufficient decisions each year.”
Plaintiffs allege infringement of their statutory decisional independence, interference
with their oath of office and duties, constructive reduction in salary, an adverse effect on career
advancements, and damage to their professional reputations because of the Benchmarks and
Directive. Plaintiffs are seeking a declaration that the Benchmarks and Directive constitute an
illegal performance and for this Court to enjoin the Agency from imposing a quota now or in the
future.
Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a court must dismiss any action for
which it lacks subject matter jurisdiction. “On a motion to dismiss for lack of subject matter
jurisdiction, the court is not bound to accept the truth of the allegations in the complaint, but may
look beyond the complaint and the pleadings to evidence that calls the court’s jurisdiction into
doubt.” Bastien v. AT & T Wireless Servs., Inc., 205 F.3d 983, 990 (7th Cir. 2000). The party
asserting jurisdiction has the burden of establishing it under Rule 12(b)(1). United Phosphorus,
Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003).
Discussion
Defendant moves to dismiss the ALJs’ complaint arguing that the Court does not have
jurisdiction under the APA. Alternatively, if the Court determines it does have jurisdiction over
plaintiffs’ claims under the APA, the defendant argues that the case should still be dismissed
because the plaintiffs lack standing.

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The APA allows judicial review of a “final agency action” for which there is no other
adequate remedy or an agency action that is made reviewable by statute. 5 U.S.C. § 704. Before
finding that judicial review is available, the court must confirm that such review does not fall
within either of the APA’s two exceptions: (1) where a statute expressly precludes judicial
review; or (2) where agency action is committed to agency discretion by law. 5 U.S.C. § 701.
Defendant argues that the remedial scheme set forth by the Civil Service Reform Act (“CSRA”)
expressly precludes judicial review in this case by this Court.
The CSRA protects the rights of all federal employees, including ALJs, to be free from
“prohibited personnel practices” taken against them. 5 U.S.C. §2302. The statute states that “a
significant change in working conditions” is a “personnel action” and describes prohibitions in
regards to the personnel actions. 5 U.S.C. 2302(a)(2)(A); See also § 2302(b) (prohibiting
personnel actions that arise from improper motives and reasons such as discrimination,
nepotism, or retaliation). The statute details a variety of causes of actions, protections, remedies,
and the availability of administrative and judicial review when an employee’s rights are violated.
Grosdidier v. Chairman, Broad. Bd. Of Gov., 560 F. 3d 495, 497 (D.C. Cir. 2009). The Supreme
Court referred to the CSRA as a “comprehensive system for reviewing personnel action taken
against federal employees.” United States v. Fausto, 484 U.S. 439, 455 (2012). When Congress
created the CSRA they wanted to replace the disorganized and unsystematic arrangements in
place for administrative and judicial review. They therefore designed the statute to balance the
legitimate interests of the numerous categories of federal employees with the needs of complete
and efficient administration. Id. at 44-45. Federal employees are not to circumvent the CSRA’s
requirements by resorting to the catchall APA when challenging agency employment actions.
Grosdidier, 560 F.3d at 497. By creating the CSRA, Congress removed the jurisdiction of

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federal district courts over personnel actions arising out of federal employment. Paige v.
Cisneros, 91 F.3d 40, 43 (7th Cir. 1996).
This case is comparable to Mahoney v. Donovan where ALJ Mahoney brought an action
under the APA for violation of his decisional independence. 721 F.3d 633, 634 (D.C. Cir. 2013).
Mahoney argued his claims were not “personnel actions” and thus were not covered by the
CSRA. Mahoney complained, among other things, that his supervisor failed to assign him cases
in a rotating manner and instead assigned cases based on political considerations. Id. The court
rejected this argument and found that Mahoney’s complaint concerning the selective assignment
of cases to be a “working condition” which therefore fell under “personnel actions” within the
CSRA. Id. at 636.
Similarly here, the ALJs assert that they are not bringing their claims under the CSRA,
but that defendant violated the APA by interfering with their decisional independence. Although
presented as interference with decisional independence a review of the complaint shows that the
ALJs’ allegations are actually challenging working conditions and duties. For example, plaintiffs
allege that the quota impedes their ability to render carefully reasoned decisions and forces them
to take shortcuts through the hearing process. They also allege interference with their statutory
and regulatory duties because of the Benchmarks and Directive. Plaintiffs contend that the
Agency aggressively enforces the quota with formal disciplinary action and reprimands, as well
as less formal discipline such as counseling, threats, and intimidation. They claim that ALJs who
fail to meet the quota have had staff and resources withheld, and have had their requests for
leave delayed or refused. Rather than indicating that the Agency is interfering with decisional
independence, the allegations show that a change in working conditions resulted from the
Benchmarks and Directive. The allegations in the complaint also show the changes in working

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conditions predominantly originated after disciplinary actions and the threat of disciplinary
actions. It appears to this Court that the ALJs’ claims stem not from decisional interference by
the Agency, but from a change in working conditions that resulted from the Agency demanding
the ALJs meet certain benchmarks. Thus, their claims fall squarely within the CSRA’s coverage.
Defendant also argues that plaintiffs must exhaust their administrative remedies as
required by Chapter 71 of the CSRA, known as the Federal Labor-Management Relations Act
(“FLMRA”). See 5 U.S.C. § 7103. Plaintiffs argue that since the FLMRA is only the exclusive
administrative procedure for resolving grievances under its coverage, they are still entitled to
judicial remedies. FLMRA is the exclusive administrative procedure for resolving grievances
falling under its coverage. 5 U.S.C. § 7103 (explaining a “grievance” within the statute includes
“any complaint by any employee, labor organization, or agency concerning any claimed
violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions
of employment”).1 Therefore, the FLMRA does not preclude the possibility of judicial remedies.
See Filebark v. United States DOT, 555 F.3d 1009, 1012 (D.C. Cir. 2009). Even if the FLMRA
alone does not have a preclusive effect, it does not confer jurisdiction nor does it create a cause
of action for the ALJs to bring their complaint in federal court. Whitman v. Department of
Transportation, 547 U.S. 512, 513 (2006).
Here, plaintiffs claim they are asserting their claim under the APA, not the CSRA, and
therefore the may seek judicial relief and need not exhaust their administrative remedies under
the FLMRA. However, this Court has already found that the quota of which plaintiffs complain
constitutes a change in working conditions subject to the CSRA.

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Under Chapter 75, the CRSA covers actions against ALJs specifically in respect to removal, suspension, a
reduction in grade, a reduction in pay, and a furlough of 30 days or less. 5 U.S.C. § 7521. However this chapter does
not apply in this case.

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Plaintiffs argue that since they are not seeking relief for specific adverse personnel
actions taken against them individually, but against agency-wide action affecting hundreds of
ALJs, the CSRA does not apply. Yet, the CSRA applies to system-wide challenges of agency
policy the same way it does to an individual challenge. Nyunt v. Chariman, Braod. Bd. Of
Govenors, 589 F.3d 445, 448-449 (D.C. Cir. 2009).
Plaintiffs also argue the CSRA is not applicable because their claim cannot be redressed
under the statute by the U.S. Office of Special Counsel (“OSC”). This argument fails. The CSRA
is also the exclusive means of redressing employment disputes even when, as the ALJs allege
here, the statute provides no relief. See Elgin v. Department of Treasury, 132 S. Ct. 2126, 2133
(2012) (disagreeing with the petitioners’ argument that the CSRA provided no meaningful
review of their claim because the MSPB lacked authority to declare a federal statute
unconstitutional). However, the OSC does in fact have the power to investigate the ALJs
concerns about the alleged quota because it is authorized to investigate a change in working
conditions motivated by improper reasons. 5 U.S.C. §1214. Accordingly, this Court finds that
the ALJs claim falls squarely within the CSRA and this Court lacks subject matter jurisdiction to
review the matter.
Because this Court finds it lacks subject matter jurisdiction, it need not address whether
the plaintiffs have standing to assert the claims. Based on the foregoing, defendant’s Motion to
Dismiss [13] is granted.
IT IS SO ORDERED.
Date: February 26, 2014

Entered: _______________________________
United States District Judge

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