United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RICHARD L. ABRAMS, 

Petitioner, 

v. 

SOCIAL SECURITY ADMINISTRATION, 

Respondent. 

__________________________ 

2011-3177 

__________________________ 

Petition for Review of the Merit Systems Protection 

Board in Case No. CB752108001-T-1. 

___________________________ 

Decided: December 28, 2012 

_________________________ 

PETER B. BROIDA, of Arlington, Virginia, argued for 

petitioner. 

ELIZABETH M. HOSFORD, Senior Trial Counsel, Classification Unit, United States Department of Justice, of 

Washington, DC, argued for respondent. With her on the 

brief were STUART F. DELERY, Acting Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and BRIAN M.

SIMKIN, Assistant Director. Of counsel was ALLISON 

KIDD-MILLER, Trial Counsel. 
ABRAMS v. SSA 2

DONALD J. WILLY, Association of Administrative Law 

Judges, of Houston, Texas, for amicus curiae Association 

of Administrative Law Judges. 

__________________________ 

Before LOURIE, CLEVENGER, and WALLACH, Circuit 

Judges. 

WALLACH, Circuit Judge. 

Judge Richard L. Abrams appeals from the Merit Systems Protection Board (“Board”) decision upholding his 

removal by the Social Security Administration (“Agency”) 

from his position as an Administrative Law Judge 

(“ALJ”). Because the legal challenges are meritless and 

substantial evidence supports the Board’s findings that 

good cause existed to remove Judge Abrams from his 

position, we affirm. 

BACKGROUND

Prior to his removal Judge Abrams had been an ALJ 

with the Agency since 2001 and with the HoustonBissonnet Hearing Office of the Agency’s Office of Disability Adjudication and Review since 2003. The Hearing 

Office Chief ALJ of the Houston-Bissonnet Office was, at 

all times relevant to this appeal, Judge Robert McPhail. 

The Hearing Office Chief 

is responsible for managing, planning, and coordinating the administration of the hearing process 

for the office. In addition to handling his or her 

own hearing docket, the [Hearing Office Chief] responds to Congressional and public inquiries, assigns cases to ALJs, gives directives to ALJs, and 

assumes the overall responsibility for the expeditious handling of case processing in the office. 
3 ABRAMS v. SSA

Soc. Sec. Admin. v. Abrams, No. CB-7521-08-0001-T-1, at 

3 (M.S.P.B. Mar. 29, 2010) (“Initial Decision”). 

In April 2007 the national office sent a memorandum 

to the regional offices entitled “Benchmarks for Quality 

Case Processing” (“benchmarks”) providing guidelines to 

facilitate case processing and service delivery. J.A.125. A 

Collective Bargaining Agreement between the Agency and 

its ALJs provided that the benchmarks were “guidelines 

for management officials,” and would not be “used as a 

source of any disciplinary or performance action.” J.A.192. 

Later that year a nationwide initiative began to move 

cases through the process more quickly, with a particular 

focus on completing those cases that were more than 900 

days old. 

Judge Abrams had frequently come to the attention of 

management due to his difficulty in processing cases in a 

timely manner. Efforts to address this included entering 

into an agreement to exchange his older cases for newer 

cases, not assigning new cases or giving him so called 

“thin” cases, offering him docket management training, 

and offering to have his aged cases reassigned; the latter 

two he refused. 

In February 2007, Regional Chief ALJ Joan Parks 

Saunders sent Judge Abrams a memorandum directing 

him to decide cases that had been in post hearing status.1 

 1 When a case is assigned to an ALJ it is in “ARPR” 

status (ALJ Prehearing Review); upon reviewing a case, 

the ALJ will typically place it into “RTS” status (ready-toschedule for a hearing), unless it requires additional 

evidentiary development in which case it is placed in 

“PRE” (pre-hearing development) status. An administrative employee will schedule RTS cases for hearing. After 

a hearing the ALJ typically will issue decision instructions and put the case in Unassigned Writing (“UNWR”) 

status, unless the ALJ needs more time or more informa-
ABRAMS v. SSA 4

For those he could not decide by March 9, 2007, he was 

directed to provide a detailed explanation why and what 

specific action he intended to take with a timeline for 

taking that action. In a letter dated March 8, 2007, Judge 

Abrams provided information concerning each of the 27 

cases identified in the memorandum. 

On June 14, 2007, Judge McPhail sent Judge Abrams 

an email with the subject line: “Direct Order—Decide 

Aged Cases or Provide Explanation of Your Intended 

Course of Action by June 22, 2007” (the “June 2007 directive”). J.A.127. Attached was a list of 53 aged cases in 

various statuses. For cases in all statuses Judge Abrams 

was directed to advance them or provide a detailed reason 

why he could not do so. On June 15, 2007, Judge Abrams 

told Judge McPhail he would be unable to comply because 

of his upcoming hearing schedule. Judge McPhail responded advising him that despite his hearing schedule 

he must still comply. Judge Abrams never responded. On 

August 6, Judge McPhail reassigned 11 of the 53 listed 

cases that were the subject of the June 2007 directive; 

each was more than 1,000 days old. On November 8, 

2007, the Agency filed a complaint against Judge Abrams 

and sought a 14-day suspension for failure to follow the 

June 2007 directive. 

On January 22, 2008, Judge McPhail again directed 

Judge Abrams to take action regarding 40 cases in various statuses or provide detailed explanations why he was 

unable to move a case forward (the “January 2008 direc-

 

tion in which case it is placed in the Post-Hearing status 

(“ALPO”). If it needs additional development a case is 

placed in Post-Hearing Development (“POST”) status. 

When a decision is drafted it is moved to “EDIT” status 

for review or editing by the ALJ. After final changes are 

made it is in “SIGN” status as it awaits the ALJ’s signature. 
5 ABRAMS v. SSA

tive”). On February 5, 2008, Judge Abrams responded 

that he had substantially complied and expected that any 

remaining work he was directed to perform would be 

completed by February 15, 2008. 

Judge McPhail again directed Judge Abrams on May 

7, 2008 (the “May 2008 directive”) to take action on 19 

pending cases or provide a written explanation explaining 

why he could not do so. Judge Abrams responded that he 

had completed those cases that were simply awaiting his 

signature, made edits to those written decisions that 

needed his review, and returned some cases for reassignment to other judges. However, upon examination 

of the case management system, Judge McPhail found 

otherwise. In particular, Judge McPhail found that cases 

had simply been shifted to different statuses, rather than 

moved toward adjudication, without adequate explanation. Contrary to Judge Abrams’s representation, no 

cases were returned for reassignment nor was there any 

agreement in place at the time that cases would be returned and reassigned. On July 16, 2008, the Agency 

filed a second complaint against Judge Abrams with the 

Board, seeking a 30-day suspension for failure to follow 

instructions in the January 2008 and May 2008 directives 

on the grounds that contrary to Judge Abrams’s responses, he had not adjudicated the cases or provided 

explanation as directed. 

Judge McPhail issued another directive to Judge 

Abrams on August 19, 2008, directing him to take action 

on cases in need of either his signature or edits, without 

the option of providing a written explanation if he could 

not adjudicate the cases as directed (the “August 2008 

directive”). For cases in other statuses he was directed to 

move them along in the process or explain why he could 

not do so. On September 9, 2008, Judge Abrams emailed 

Judge McPhail to inform him that he had completed all of 
ABRAMS v. SSA 6

the tasks as directed. Contrary to Judge Abrams’s assertion, the Agency determined that Judge Abrams had not 

moved all of his cases or provided a written explanation 

as directed and on November 14, 2008, filed a third complaint with the Board for continued failure to follow 

instructions. 

The three complaints were combined, and a multi-day 

hearing was conducted by ALJ Margaret G. Brakebusch. 

In her initial decision, she determined that the Agency 

had proven the charge of failure to follow instructions as 

alleged in the three complaints by a preponderance of the 

evidence. Judge Brakebusch recognized the importance of 

an ALJ’s qualified judicial independence to be free from 

improper interference. She nevertheless found that ALJs 

are not immune from supervision and may be disciplined 

for failure to comply with reasonable instructions as long 

as the instructions do not affect the ALJ’s ‘“ability to 

provide full and fair hearings and to render impartial and 

complete decisions.”’ Initial Decision at 58 (quoting Soc. 

Sec. Admin. v. Boham, 38 M.S.P.R. 540, 543 (1988)). She 

further found that Judge Abrams was given the opportunity to provide a written explanation as to what was 

needed to move cases toward adjudication but failed to 

fully comply with the directives and established no justification for this failure. Judge Brakebusch determined that 

the Agency showed good cause for disciplinary action. 

After reviewing the standards articulated in Douglas v. 

Veterans Administration, 5 M.S.P.R. 280 (1981), Judge 

Brakebusch concluded the evidence weighed in favor of 

removal. 

The initial decision was affirmed by the full Board. 

Judge Abrams filed a timely appeal. We have jurisdiction 

pursuant to 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9). 
7 ABRAMS v. SSA

DISCUSSION

The scope of our review in an appeal from the Board is 

limited. We must affirm the Board’s decision unless we 

find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c). Under the substantial 

evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 

1298 (Fed. Cir. 2002) (quoting Brewer v. United States 

Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)). 

Judge Abrams does not dispute that substantial evidence supports the Board’s conclusion that the Agency 

met its burden in proving the charge of failure to follow 

directions; in fact, he admitted that he had not fully 

complied with the directives. Instead, Judge Abrams 

argues that the Board erred in concluding there was “good 

cause” for removal. Three arguments were presented to 

show that good cause did not exist in this case. First, 

Judge Abrams and amicus curiae, the Association of 

Administrative Law Judges (“AALJ”), argue that the 

Agency’s charge of “failure to follow instructions” was an 

improper attempt to enforce the benchmarks, and thus 

could not constitute good cause for removal. In the alternative, Judge Abrams argues that the Board erred in 

finding “good cause” for discipline because performancebased misconduct actions require objective, articulated 

performance standards. Finally, the AALJ contends that 

failure to follow the directives could not have provided the 

basis for “good cause” removal because the directives 

interfered with Judge Abrams “qualified decisional inde-
ABRAMS v. SSA 8

pendence” in addressing “live cases.” We address each 

argument in turn. 

Under 5 U.S.C. § 7521(a) an administrative law judge 

cannot be removed unless “good cause [is] established and 

determined by the Merit Systems Protection Board.” 

“Good cause” is not defined in this statute, nor was it 

defined in the Administrative Procedure Act (“APA”). 

Long v. Soc. Sec. Admin, 635 F.3d 526, 533 (Fed. Cir. 

2011). ‘“[G]ood cause’ is to be given meaning through 

judicial interpretation. . . .” Brennan v. Dep’t of Health & 

Human Servs., 787 F.2d 1559, 1561–62 (Fed. Cir. 1986). 

The Board’s “interpretation of ‘good cause’ in section 7521 

is subject to Chevron deference.” Long, 635 F.3d at 534; 

see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984). Under the two-part Chevron test, a 

court must first determine if Congress has directly addressed the issue and if so must give effect to the expressed intent of Congress. Long, 635 F.3d at 535. If the 

statute is silent or ambiguous the court must sustain an 

agency’s reasonable construction. Id. Here, Congress 

failed to define the meaning of “good cause” in 5 U.S.C. 

§ 7521, and therefore, we must evaluate the Board’s 

construction. Id. 

The Board determined that the “good cause standard 

must be construed as including all matters which affect 

the ability and fitness of the ALJ to perform the duties of 

office.” Initial Decision at 45. In support, the Board 

reasoned: 

The legislative history of the APA indicates that 

an ALJ’s fitness and ability to perform the duties 

of office means that: “[ALJs] must conduct themselves in accord with the requirements of this bill 

and with due regard for the rights of all parties as 
9 ABRAMS v. SSA

well as the facts, the law, and the need for prompt 

and orderly dispatch of public business.” 

Id. (quoting H.R. Rep. No. 1980, at 269 (1946)) (emphasis 

added) (alteration in Board Opinion). The Board concluded that there was good cause for removal because 

Judge Abrams’s failure to fully comply with the directives 

“evidence[d] . . . a neglect of his duties as an ALJ to 

provide ‘prompt and orderly dispatch of public business.’” 

Id. at 59-60. The Board’s interpretation of “good cause” is 

a reasonable construction of the statutory language, and 

is consistent with the APA. Accordingly, under Chevron, 

we defer to the Board’s interpretation of “good cause” in 

section 7521(a) and uphold its determination that failure 

to follow instructions is sufficient “good cause” for removal. 

I. The Charge Is Not Premised On Benchmarks. 

Judge Abrams and the AALJ argue that the benchmarks became de facto performance standards used 

against him in violation of the collective bargaining 

agreement. The Board determined, as a factual matter, 

that the Agency did not rely upon the benchmarks as de 

facto performance standards, concluding that: 

A review of the specifications at issue reflects that 

the Agency’s proposed disciplinary actions were 

based upon [Judge Abrams’s] failure to follow the 

instructions included in the directives. Additionally there is nothing in the record to support a 

finding that the proposed discipline was for 

[Judge Abrams’s] failure to follow the benchmarks 

rather than his failure to follow the instructions 

in the [four] directives. 

Id. at 62. Neither Judge Abrams nor the AALJ point to 

any evidence to support their assertions that the bench-
ABRAMS v. SSA 10

marks were used as performance standards. Judge 

McPhail testified that he targeted aged cases in the 

directives, but did not limit Judge Abrams to any of the 

time frames for case processing set forth in the benchmarks. He simply directed that cases not continue to 

languish. The Agency charged that Judge Abrams had 

failed to follow instructions because he failed to decide 

aged cases or explain why he was unable to do so in order 

to fully comply with the directives. The charge was not 

based upon the benchmarks. 

II. The Charge Is Not Performance-Based. 

In the alternative, Judge Abrams contends that the 

Board erred in finding “good cause” for discipline because 

performance-based misconduct actions require objective, 

articulated performance standards. Appellant’s Br. at 38–

54 (quoting Soc. Sec. Admin. v. Goodman, 19 M.S.P.R. 

321, 331 (1984)). However, as explained in the previous 

section and as demonstrated in both the complaint and 

the Board’s decision, Judge Abrams was charged with 

misconduct based upon a failure to follow instructions, 

and not poor performance.2 

 2 At oral argument, Judge Abrams’s counsel argued 

that Goodman required a misconduct charge to be based 

upon insubordination. See Oral Argument at 5:40–5:57, 

available at http://www.cafc.uscourts.gov/oralargument-recordings/all/abrams.html. The argument 

fails for several reasons. First, this court is not bound by 

Goodman, a decision of the Board. Second, the main 

determination in Goodman was that ALJs can be charged 

for misconduct under 5 U.S.C. § 7521. Goodman, 19 

M.S.P.R. at 324–32. The language in Goodman that 

Abrams references is dicta, discussing the distinction 

between performance-based and misconduct-based actions: “For example, a case based upon a charge that work 

is of unacceptable quality is a performance-based action. 

On the other hand, if the agency charged that the same 
11 ABRAMS v. SSA

The charge of failure to follow instructions is a charge 

of misconduct and is supported by substantial evidence. 

For instance, with regard to the June 2007 directive, the 

Board found: 

Although there is no dispute that [Judge Abrams] 

complied with the [June 2007] directive in at least 

10 of the 53 cases, I also find that there is no evidence that [Judge Abrams] complied with the directive in any way regarding a number of the aged 

cases listed in the directive. More importantly, in 

those cases where [Judge Abrams] took no action 

to comply with the directive, or where he acted in 

contradiction to the directive, he provided no written explanation why he could not comply. [Judge 

Abrams], in fact, provided no written response at 

all to the June 2007 directive. Interestingly, when 

he receive[d] a similar directive from [Judge] 

Parks Saunders in February 2007, he complied. 

Thus, there is no question that he fully understood what was needed for full compliance to [sic] 

such a directive. 

Initial Decision at 51; see also J.A.10305–07, J.A.10348–

51, J.A.10364–70 (Judge McPhail’s testimony detailing 

Judge Abrams’s noncompliance with the January 2008, 

 

poor work resulted from the employee’s failure to follow 

instructions, the case would present a misconduct charge 

based upon insubordination.” Id. at 330. Last, despite 

Judge Brakebusch’s statement that Judge Abrams’s 

“failure to fully comply with McPhail’s directives evidence[d] . . . insubordination,” Initial Decision at 59, 

Judge Abrams was charged with misconduct for failure to 

follow instructions. A charge of misconduct based on a 

failure to follow instructions need not be based upon 

insubordination. 
ABRAMS v. SSA 12

May 2008, and August 2008 directives, respectively). 

Accordingly, Judge Abrams’s argument that the Board 

could not find good cause for his removal because it did 

not use objective performance standards is without basis. 

III. The Directives Do Not Interfere With Judicial 

Independence. 

The AALJ argues that the charge of failure to follow 

instructions cannot be sustained because the instructions 

interfered with Judge Abrams’s qualified decisional 

independence. Decisional independence ensures that “the 

hearing examiner exercises his independent judgment on 

the evidence before him, free from pressures by the parties or other officials within the agency.” Brennan, 787 

F.2d at 1562 n.1 (quoting Butz v. Economou, 438 U.S. 478, 

513 (1978)). Furthermore, the APA prohibits substantive 

review and supervision of the quasi-judicial functions of 

ALJs. Id. at 1562. However, decisional independence does 

not prohibit “appropriate administrative supervision that 

is required in the course of general office management.” 

Id.

The Board has repeatedly acknowledged that ALJs 

may be disciplined for failure to follow instructions unrelated to their decisional independence. See, e.g., Soc. Sec. 

Admin. v. Burris, 39 M.S.P.R. 51, 55 (1988); Soc. Sec. 

Admin. v. Manion, 19 M.S.P.R. 298, 314–15 (1984); Soc. 

Sec. Admin. v. Brennan, 19 M.S.P.R. 335, 340 (1984). 

Here, the Board held that the directives did not interfere 

with Judge Abrams’s decisional independence, reasoning 

as follows: 

The nature of these directives were [sic] not such 

to affect [Judge Abrams’s] ability to provide full 

and fair hearings or to render impartial and complete decisions. They were directives to process 

cases and to provide information about the im-
13 ABRAMS v. SSA

pediments or unique circumstances of the individual cases that affected the adjudication of the 

case. [Judge Abrams] has established no justification to refuse to comply with such instructions. 

Initial Decision at 59. Reviewing the directives, the 

Board determined that Judge McPhail did not direct 

Judge Abrams to make any specific decision on a case, but 

rather, asked that the cases be moved to the next step in 

processing or explain what was needed in order to move 

them along. The Board concluded that “there is no evidence that any of the Agency’s directives suggested, 

implied, or dictated how [Judge Abrams] was to adjudicate the cases. The directives only instructed [Judge 

Abrams] to process assigned cases to the next step if 

possible, and to provide information to [Judge McPhail] 

on those cases that could not be moved to the next step.” 

Id. at 60. Based on the record, the Board found “no 

indication that the instructions at issue dictated the 

outcome of the cases or otherwise impeded [Judge 

Abrams’s] ability to render impartial and complete decisions.” Id. at 61. The substance of the decisions was 

within Judge Abrams’s control at all times. Accordingly, 

the Board’s determination that the directives did not 

impinge upon Judge Abrams’s judicial independence is 

supported by substantial evidence. 

CONCLUSION

For the foregoing reasons we conclude that the 

Board’s determination to remove Judge Abrams from his 

position as an ALJ for the Agency is supported by substantial evidence. 

AFFIRMED