United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DANVERS E. LONG, 

Petitioner, 

v. 

SOCIAL SECURITY ADMINISTRATION, 

Respondent. 

__________________________ 

2010-3108 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CB7521080019-T-1. 

__________________________ 

Decided: March 14, 2011 

__________________________ 

CHRISTOPHER C. SHARP, Sharp Law Firm, P.A., of 

Plantation, Florida, argued for petitioner. 

ELIZABETH M. HOSFORD, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent. With her on the brief were TONY WEST, 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant Director. 
LONG v. SSA 2

LINDA A. STAGNO, Association of Administrative Law 

Judges, of Brooklyn, New York, argued for amicus curiae. 

Of counsel was HAROLD J. KRENT, Chicago-Kent College of 

Law, of Chicago, Illinois 

__________________________ 

Before GAJARSA, DYK, and PROST, Circuit Judges. 

Opinion for the court filed by Circuit Judge PROST. 

Concurring opinion filed by Circuit Judge DYK. 

PROST, Circuit Judge. 

Petitioner Danvers E. Long (“Long”) petitions for review of the final decision of the Merit Systems Protection 

Board (“Board”) finding good cause to remove Long from 

his position as an administrative law judge (“ALJ”) with 

the Social Security Administration (“Agency”) based on a 

charge of conduct unbecoming an ALJ. We affirm. 

BACKGROUND

The Agency employed Long as an ALJ in its Office of 

Disability Adjudication and Review in Fort Lauderdale, 

Florida beginning in 2001. At approximately 11:00 p.m. 

on January 27, 2008, Long was involved in a physical 

altercation (“January 27, 2008 Incident”) with his domestic partner, Lilia Vanessa Castro (“Castro”), who is the 

mother of his youngest child, Charlize Long Castro. The 

physical altercation began when Castro returned home, 

after leaving their child in Long’s care, to discover that 

Long was asleep in their bedroom and the child was not 

with him. Eventually, Castro fled the home on foot and 

continued to the home of Lisa and Donald Feeney (“the 

Feeneys”), who lived almost a mile away from Long and 

Castro. After Castro told the Feeneys that Long hit her 
3 LONG v. SSA

and the child, Lisa Feeney called 911 on Castro’s behalf. 

Three police officers responded to the Feeneys’ home and 

questioned Castro; a Spanish-speaking officer took a taperecorded statement from Castro. In these interviews and 

Castro’s statement, Castro explained that Long repeatedly struck and pushed her and that he accidentally 

struck their child. The police observed, and took digital 

photographs of, physical injuries on Castro’s face, forearm, and thigh as well as a red mark on the child’s face. 

Long was arrested and, on February 21, 2008, was 

charged with one count of domestic violence battery and 

one count of culpable negligence. The prosecutor later 

entered a nolle prosequi on the criminal charges against 

Long. 

The Agency filed a Complaint, on June 30, 2008, and 

an Amended Complaint, on October 3, 2008, seeking 

Long’s removal from his position as an ALJ based on one 

charge of conduct unbecoming an ALJ arising out of the 

January 27, 2008 Incident. The charge contained two 

specifications: 

Specification 1: On or about January 27, 2008, 

[Long] repeatedly struck, grabbed, and pushed 

Lilia Vanessa Castro. 

Specification 2: On or about January 27, 2008, 

[Long] struck Charlize Long Castro, while Lilia 

Vanessa Castro was holding her. 

J.A. 72. 

At a hearing before Administrative Law Judge Giannasi (“ALJ Giannasi”), sitting by designation, ALJ Giannasi heard testimony from, inter alia, Long, Castro, Lisa 

Feeney, Donald Feeney, and two of the three responding 

police officers. The parties jointly stipulated to the submission of the deposition testimony of Long’s teenage 
LONG v. SSA 4

children who were home during the January 27, 2008 

Incident, Ana Long and Danvers Long, Jr., in lieu of 

having the two testify at the hearing. Lisa Feeney, Donald Feeney, and the two police officers testified that 

Castro, who was noticeably shaken and had visible physical injuries, told them that Long was physically violent. 

Long, however, denied striking Castro and the child but 

admitted that, during the January 27, 2008 Incident, he 

grabbed Castro on several occasions and may have 

pushed her. Long claimed that his actions during the 

incident were taken in defense of himself and his child. 

Castro, who by the time of the hearing had reconciled 

with and was again living with Long, denied telling the 

Feeneys and the police that Long struck her and the child 

during the January 27, 2008 Incident. She testified that 

Long only grabbed her to protect himself and did not push 

or strike her. She further testified that she did not know 

if Long struck the child. 

On June 2, 2009, ALJ Giannasi issued an initial decision sustaining the charge against Long. ALJ Giannasi 

found that, though the details of the January 27, 2008 

Incident were not clear, the Agency established that Long 

used violence against Castro and thus proved by a preponderance of the evidence the “substance” of the first 

specification of the charge. Soc. Sec. Admin. v. Long, No. 

CB7521080019-I-1, slip op. at 21-22 (M.S.P.B. June 2, 

2009) (“Initial Decision”). ALJ Giannasi, however, found 

that the Agency failed to prove the second specification. 

Id. at 22-23. Based on his review of the Douglas factors, 

ALJ Giannasi found good cause for a forty-five day suspension, rather than the requested penalty of removal. 

Id. at 1, 31-32. 

The Agency petitioned the Board for review of the initial decision. Soc. Sec. Admin. v. Long, No. 
5 LONG v. SSA

CB7521080019-I-1, slip op. at 1-2 (M.S.P.B. Jan. 27, 2010) 

(“Final Decision”). The Board granted the Agency’s 

petition and issued a final decision on January 27, 2010. 

Id. It found that the Agency proved both specifications of 

the charge of conduct unbecoming an ALJ by a preponderance of the evidence. Id. at 2, 6, 20. In reaching this 

conclusion, the Board, in contrast to ALJ Giannasi, found 

that the hearing testimony of Long and Castro was not 

credible or reliable. Id. at 6, 18-20. The Board instead 

relied on the hearing testimony of the Feeneys and the 

police officers, the police reports, Castro’s sworn statement to police the night of the incident, and the statement 

and deposition testimony of Ana Long. Id. at 6, 8, 14-20. 

Further, the Board found good cause for disciplinary 

action against Long and determined that removal was the 

appropriate penalty. Id. at 20-27. 

Long timely petitioned for review of the Board’s final 

decision in this court. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

“Our review of Board decisions is limited. We may 

only reverse a Board decision if we find the decision to be 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; obtained without procedures 

required by law; or unsupported by substantial evidence.” 

Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 

2010) (citing 5 U.S.C. § 7703(c)). 

Long raises a number of issues on appeal. First, Long 

argues that the Board’s finding that the Agency proved 

both specifications of the charge of conduct unbecoming 

an ALJ is not supported by substantial evidence. Second, 

Long contests the Board’s finding of “good cause” for 
LONG v. SSA 6

disciplinary action against him. Finally, Long objects to 

the imposed penalty of removal. We address each in turn. 

I 

A 

Long argues that the Board’s decision to sustain the 

charge of conduct unbecoming an ALJ is not supported by 

substantial evidence because the Board improperly overturned ALJ Giannasi’s demeanor-based credibility determinations, including his determination that the testimony 

of several Agency witnesses was not fully credible or 

reliable as well as his concomitant finding that the 

Agency witnesses who spoke with Castro the night of the 

incident were unable to obtain a full understanding of the 

incident given Castro’s limited ability to speak English. 

Pet’r’s Br. 19, 22-41; Reply Br. 4-20. In response, the 

Agency contends that the findings with which Long takes 

issue on appeal were not demeanor-based determinations 

and thus the Board was free to substitute its judgment for 

that of ALJ Giannasi. Resp’t Br. 20-32. 

The general rule is that the Board is free to re-weigh 

the evidence and substitute its judgment for that of one of 

its administrative judges. Leatherbury v. Dep’t of the 

Army, 524 F.3d 1293, 1304 (Fed. Cir. 2008); Haebe v. 

Dep’t of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). “An 

important exception, however, is that the Board is not 

‘free to overturn an administrative judge’s demeanor 

based credibility findings merely because it disagrees 

with those findings.’” Leatherbury, 524 F.3d at 1304. 

Specifically, 

where an administrative judge [is] able to observe 

the demeanor of a testifying witness and, as a re-
7 LONG v. SSA

sult, the administrative judge’s findings [are] explicitly or implicitly based on the demeanor of the 

witness, the Board may not simply disagree with 

the AJ’s assessment of credibility . . . unless the 

[B]oard has articulated sound reasons, based on 

the record, for its contrary evaluation of the testimonial evidence. 

Id. at 1304-05 (quotation marks omitted). Therefore, “if 

the [Board]’s reasons for overturning demeanor-based 

credibility determinations are not sufficiently sound, its 

decision does not survive substantial evidence review.” 

Haebe, 288 F.3d at 1301. 

Accordingly, for each of ALJ Giannasi’s determinations that the Board overturned, if the determination was 

not demeanor-based, there was no restraint on the 

Board’s ability to reconsider the evidence and reach a 

different conclusion. If the determination was explicitly 

or implicitly demeanor-based, however, the Board was 

required to give “sound reasons, based on the record” for 

overturning ALJ Giannasi’s conclusion. We need not 

address into which category the determinations at issue 

on appeal fall because we conclude that the Board, in its 

detailed, thorough analysis of the evidence and ALJ 

Giannasi’s determinations, gave sound reasons for any 

conclusions that were contrary to those reached by ALJ 

Giannasi.1 The Board therefore satisfied the more strin-

 1 There is, however, one exception. Specifically, we 

conclude that the Board erred in overturning ALJ Giannasi’s findings regarding Castro’s provocation of Long but 

this error was harmless. In its analysis of provocation, 

the Board stated “Ms. Castro struck the respondent in an 

attempt to get away from him after he pushed and 

grabbed her when she woke him up.” Final Decision at 26 

(emphasis added). As such, the Board appears to be 
LONG v. SSA 8

gent standard for overturning demeanor-based credibility 

determinations. 

For example, Long objects to the Board’s disagreement with ALJ Giannasi’s findings regarding the reliability and credibility of Sergeant Coleman, one of the 

responding police officers. Pet’r’s Br. 38; Reply Br. 31-32. 

ALJ Giannasi found that Sergeant Coleman’s testimony 

was entitled to less weight because certain discrepancies 

led him to question its accuracy. Initial Decision at 13. 

First, ALJ Giannasi noted that Sergeant Coleman testified that Castro stated that she left the house after Long 

prevented her from calling the police, yet this fact is not 

mentioned in Sergeant Coleman’s incident report and is 

not “supported by any other witness or any other evi-

 

working on the premise that Long was the first to use 

physical violence. The Board did not acknowledge that 

Castro’s sworn statement as well as Castro’s and Long’s 

hearing testimony state that Castro struck Long before he 

struck her. J.A. 99-100; J.A. 1024; J.A. 1206-08. Because 

there is no contradictory evidence in the record, this point 

is undisputed. Based on this uncontroverted record 

evidence, ALJ Giannasi properly found that Castro initiated the violence. Initial Decision at 15, 21, 31. 

The Board’s error, however, was harmless because its 

ultimate conclusion regarding provocation is unaffected 

by its premise that Long was the first to use physical 

violence. The Board ultimately determined that provocation is not a mitigating factor “lessening [Long]’s culpability for his conduct,” because Long “escalated” the 

situation by pursuing Castro “throughout the house and 

eventually out into the neighborhood,” rather than choosing to avoid “further conflict.” Final Decision at 26. 

Regardless of whether Castro struck Long first, the 

Board’s conclusion that provocation is not a mitigating 

factor, based on Long’s escalation of the violence despite 

having the opportunity to avoid further conflict, is wellsupported by the record evidence and appropriate. 
9 LONG v. SSA

dence.” Id. at 12-13. Second, ALJ Giannasi explained 

that he “doubt[ed] Sergeant Coleman’s testimony that Ms. 

Castro told him that she was hit by a closed fist” because 

“[s]he did not tell the Feeneys or anyone else that she was 

hit by a closed fist.” Id. at 13. The Board, however, 

rejected ALJ Giannasi’s conclusions regarding Sergeant 

Coleman’s testimony. Final Decision at 16. As to the first 

alleged discrepancy, the Board pointed to other record 

evidence referencing that Castro left the house after Long 

prevented her from calling the police, including Sergeant 

Coleman’s own probable cause affidavit, Officer Madison’s 

incident report, and Castro’s sworn statement, thereby 

belying ALJ Giannasi’s finding that the fact was not 

“supported by any other witness or any other evidence.” 

Id.; J.A .83; J.A. 85; J.A. 94-95; see also J.A. 104. With 

respect to the second alleged discrepancy, the Board cited 

record evidence showing that Castro had indeed stated to 

other officers that Long hit her with a closed fist, including her sworn statement and Officer Madison’s incident 

report. Final Decision at 16; J.A. 82-83; J.A. 92. Because 

the Board referenced specific portions of the record establishing that ALJ Giannasi’s findings regarding discrepancies in Sergeant Coleman’s testimony were factually 

inaccurate, the Board undoubtedly provided “sound 

reasons, based on the record,” for its contrary conclusions. 

Additionally, Long disputes the Board’s rejection of 

ALJ Giannasi’s determination that testimony from the 

witnesses who spoke with Castro the night of the January 

27, 2008 Incident was not necessarily accurate or reliable. 

ALJ Giannasi based this determination on his finding 

that Castro’s limited ability to speak English prevented 

the witnesses from obtaining a full understanding of the 

incident. Initial Decision at 16, Pet’r’s Br. 30-33. Long 

defends ALJ Giannasi’s determination that the witness 

testimony was unreliable, emphasizing that the police 
LONG v. SSA 10

used a Spanish-speaking officer to interview Castro and 

that she testified in Spanish through an interpreter at the 

hearing before ALJ Giannasi. According to Long, these 

facts demonstrate Castro’s limited English abilities. 

Nevertheless, we conclude that the Board gave “sound 

reasons” for its disagreement with ALJ Giannasi’s determination. Indeed, as the Board noted, with specific 

citations to the record, “all witnesses at the hearing who 

spoke with Ms. Castro on the night of the incident, i.e., 

Mr. and Mrs. Feeney and two police officers, indicated 

that they had no trouble understanding her.” Final 

Decision at 14-15; J.A. 1159-64; J.A. 1170; J.A. 1188; J.A. 

1197; J.A. 1241; J.A. 1254-56; J.A. 1281. In addition, the 

Board explained that though it may have been easier for a 

Spanish speaker to obtain details of the incident from 

Castro, there is no evidence that she was unable to communicate the relevant facts in English. Final Decision at 

15. This conclusion is supported by testimony from 

Sergeant Coleman that he was able to communicate with 

Castro and directed the Spanish-speaking officer to 

interview Castro only to allow her to communicate with 

ease. Id.; J.A. 1254-56. Again, because the Board pointed 

to specific record evidence that contradicted ALJ Giannasi’s determination, we conclude that the Board’s reasoning was “sufficiently sound.” 

B 

Long also argues that the Agency did not prove either 

specification of the charge of conduct unbecoming an ALJ. 

Pet’r’s Br. 19, 42-53; Reply Br. 34-37. Long’s argument, 

however, is based on ALJ Giannasi’s findings regarding 

the January 27, 2008 Incident, which Long urges the 

court to adopt. See Pet’r’s Br. 44, 51. Because we have 

instead upheld the Board’s findings regarding the Janu-
11 LONG v. SSA

ary 27, 2008 Incident, we need not address the specifics of 

Long’s argument in this regard. 

Further, Long asserts that the Agency bore the burden to prove the elements of the criminal charge of misdemeanor domestic violence, including intent, a burden 

the Agency failed to meet. Reply Br. 20-21; see Pet’r’s Br. 

44, 49. Long contends that the Agency’s characterization 

of Long’s conduct in the specification of the Complaint 

establishes that it effectively charged Long with this 

criminal offense. Reply Br. 20-21. The Agency, however, 

explicitly charged Long with “conduct unbecoming an 

ALJ.” J.A. 72. “[W]hen an agency uses such general 

charging language, the Board must look to the specification to determine what conduct the agency is relying on as 

the basis for its proposed disciplinary action.” Russo v. 

U.S. Postal Serv., 284 F.3d 1304, 1308 (Fed. Cir. 2002). 

The specification of the Amended Complaint includes a 

narrative of the January 27, 2008 Incident, which references the criminal charges filed against Long, including 

domestic violence battery and culpable negligence. J.A. 

72; J.A. 74-77. Yet the Amended Complaint expressly 

states that “the Agency seeks [Long]’s removal based 

upon his underlying conduct, not the fact that criminal 

charges have been brought against him. Regardless of 

the outcome of the criminal proceedings, a review of 

[Long]’s actions clearly show he is not fit to continue to 

serve as an ALJ.” J.A. 74; see J.A. 77. Therefore, despite 

referencing the criminal charges filed against Long, the 

Amended Complaint makes clear that the Agency’s 

charge of conduct unbecoming an ALJ is based on Long’s 

underlying conduct during the January 27, 2008 Incident, 

not the merits of the criminal charges. See Larry v. Dep’t 

of Justice, 76 M.S.P.R. 348, 355 (1997). The Board thus 

properly determined that the Agency was not required to 
LONG v. SSA 12

prove the elements of misdemeanor domestic violence. 

Final Decision at 21-22. 

As such, we conclude that substantial evidence supports the Board’s finding that the Agency proved both 

specifications of the charge of conduct unbecoming an 

ALJ. 

II 

Pursuant to 5 U.S.C. § 7521, the Agency was permitted to remove or suspend Long, an ALJ, “only for good 

cause established and determined by the Merit Systems 

Protection Board.” 5 U.S.C. § 7521(a)-(b); Brennan v. 

Dep’t of Health & Human Servs., 787 F.2d 1559, 1561 

(Fed. Cir. 1986). In addressing “good cause,” the Board 

noted that the ALJ position is one of “prominence,” meant 

to engender “great respect.” Final Decision at 20. The 

Board therefore held that an ALJ must not conduct 

himself in a manner that “undermines public confidence 

in the administrative adjudicatory process.” Id. The 

Board explained that it has held that the American Bar 

Association Model Code of Judicial Conduct (“ABA Model 

Code”) is an appropriate guide for evaluating the conduct 

of ALJs and quoted Canon 1, Rule 1.2 of the ABA Model 

Code: “A judge shall act at all times in a manner that 

promotes public confidence in the independence, integrity, 

and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Id. at 20-21. 

Further, the Board explained that, in contrast to the 

“efficiency of the service” standard of 5 U.S.C. § 7513(a), 

“good cause” under 5 U.S.C. § 7521(a) does not require a 

“separate analysis of nexus.” Id. at 22. 

Turning to the facts of this case, the Board found that 

Long’s “physical altercation with his domestic partner, 
13 LONG v. SSA

resulting in the involvement of neighbors and the intervention of police officers . . . was inconsistent with maintaining respect for the administrative adjudicatory 

process.” Id. at 21. The Board found that this conduct 

meets the “good cause standard for disciplinary action.” 

Id. at 23; see id. at 21. 

A 

On appeal, Long does not contest the Board’s “good 

cause” standard and conceded, at oral argument, that the 

standard is acceptable and appropriate. Oral Arg. at 2:28-2:58, 

available at http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-

3108.MP3. See generally Pet’r’s Br.; Reply Br. In contrast, 

Amicus Curiae, the Association of Administrative Law 

Judges (“AALJ”), objects to the Board’s construction of 

“good cause” and disputes the Agency’s argument that the 

Board’s interpretation is entitled to Chevron deference. 

Amicus Br. 9-24. We therefore address the Board’s interpretation of “good cause” in 5 U.S.C. § 7521. 

The Administrative Procedures Act (“APA”) does not 

define “good cause.” See Brennan, 787 F.2d at 1561. 

Indeed, we have recognized that “Congress intentionally 

failed to define ‘good cause’ in the . . . Act. Rather, ‘good 

cause’ is to be given meaning through judicial interpretation . . . .” Id. at 1561-62. 

Although the “‘good cause’ standard was left to the 

courts to define,” courts have not provided a “succinct 

definition for ‘good cause.’” Id. at 1562. Courts have, 

however, articulated “what ‘good cause’ is not.” Id. at 

1563. The Supreme Court, in Ramspeck v. Federal Trial 

Examiners Conference, 345 U.S. 128 (1953), held that 

“good cause” is not equivalent to the “good behavior” 

standard applicable to Article III judges. Brennan, 787 
LONG v. SSA 14

F.2d at 1562. In addition, this court has held that a 

charge cannot constitute “good cause” if it is “based on 

reasons which constitute an improper interference with 

the ALJ’s performance of his quasi-judicial functions.” Id.

at 1563. These holdings help narrow and frame the “good 

cause” standard but do not define “good cause.” 

In the absence of a controlling interpretation of “good 

cause” by the Supreme Court or this court, the Agency 

argues that we must give Chevron deference to the 

Board’s interpretation of “good cause.” Resp’t Br. 42-47. 

We agree. In Tunik v. Merit Systems Protection Board, 

407 F.3d 1326 (Fed. Cir. 2005), we addressed the issue of 

whether the Board’s interpretation of 5 U.S.C. § 7521 is 

entitled to Chevron deference. We explained that the 

Supreme Court has “recognized a very good indicator of 

delegation meriting Chevron treatment i[s] express congressional authorizations to engage in the process of 

rulemaking or adjudication that produces regulations or 

rulings for which deference is claimed.” Id. at 1336 

(quoting United States v. Mead Corp., 533 U.S. 218, 229 

(2001)). We concluded that 5 U.S.C. § 1305, which states 

that “for the purpose of section 7521 of this title, the . . . 

Board may investigate, prescribe regulations, appoint 

advisory committees as necessary, [and] recommend 

legislation,” provides such express congressional authorization for the Board to engage in rulemaking with respect 

to section 7521. Id. We further determined that “section 

7521 authorizes the Board to adjudicate whether an 

agency has established good cause for disciplinary action 

against an ALJ.” Id. Thus, we held that “[t]he Board has 

been charged with administering section 7521 through 

both rulemaking and adjudication and is entitled to 

Chevron deference in these activities.” Id. Accordingly, 

under Tunik, the Board’s interpretation of “good cause” in 

section 7521 is subject to Chevron deference. 
15 LONG v. SSA

The AALJ, however, contends that the Board’s interpretation of “good cause” in section 7521 is not entitled to 

Chevron deference because courts have left open the 

question of whether Chevron deference is applicable 

where more than one agency is responsible for interpreting and implementing a statute. Amicus Br. 9 n.2. For 

support, the AALJ points to the Office of Personnel Management’s (“OPM’s”) role in interpreting and rulemaking 

with respect to 5 U.S.C. § 7513(a), which includes the 

“efficiency of the service” standard. Id. at 9-10 n.2. It is 

true that courts have addressed but left unresolved the 

issue of whether Chevron deference is appropriate where 

multiple agencies are responsible for administering a 

statute. Bragdon v. Abbott, 524 U.S. 624, 642 (1998); 

Jones v. Dep’t of Transp., 295 F.3d 1298, 1307 n.5 (Fed. 

Cir. 2002). We conclude, however, that this open question 

does not affect the applicability of Chevron deference to 

the Board’s interpretation of 5 U.S.C. § 7521 because the 

Board has exclusive rulemaking and adjudicatory authority with respect to section 7521. See 5 U.S.C. §§ 1305, 

7521; Tunik, 407 F.3d at 1336. OPM’s role in interpreting 

section 7513 is irrelevant. As such, our review of the 

Board’s interpretation of “good cause” in section 7521 is 

governed by Chevron. 

Under the two-part test of Chevron, a court must first 

determine “whether Congress has directly spoken to the 

precise question at issue.” Sullivan v. Everhart, 494 U.S. 

83, 89-90 (1990). If so, that is the end of the inquiry 

because “the court, as well as the agency, must give effect 

to the unambiguously expressed intent of Congress.” Id.

at 89. If, however, “the statute is silent or ambiguous 

with respect to the specific issue,” the court must sustain 

the agency’s construction if it is a “permissible construction of the statute.” Id.; see Yellow Transp., Inc. v. Mich., 

537 U.S. 36, 45 (2002). Specifically, the court must decide 
LONG v. SSA 16

“whether the agency’s construction is ‘rational and consistent with the statute.’” Sullivan, 494 U.S. at 89. “If the 

agency’s reading fills a gap or defines a term in a reasonable way in light of the Legislature’s design,” a court must 

give “that reading controlling weight, even if it is not the 

answer ‘the court would have reached if the question 

initially had arisen in a judicial proceeding.’” Regions 

Hosp. v. Shalala, 522 U.S. 448, 457 (1998). 

Here, it is clear that Congress has not “directly spoken to the precise question at issue,” namely the meaning 

of “good cause” in section 7521, as “Congress intentionally 

failed to define” the term. Brennan, 787 F.2d at 1561-62. 

Because section 7521, as well as the rest of the APA, is 

“silent or ambiguous” regarding the meaning of “good 

cause,” we must evaluate whether the Board’s construction of “good cause” is “permissible.” We conclude that 

the Board’s interpretation of “good cause” to encompass 

conduct that “undermines public confidence in the administrative adjudicatory process,” as informed by the ABA 

Model Code, is a permissible construction of the statutory 

language. See Final Decision at 20-22. In our view, the 

Board’s construction is rational, consistent with the APA, 

and reasonable in light of the APA’s design. We do not 

agree with the AALJ’s assertion that the Board’s interpretation of “good cause” prohibits ALJs from acting with 

the independence required by the APA. Amicus Br. 9 n.2, 

13-14. The APA does indeed have provisions to ensure 

the “decisional independence” of ALJs and prohibits 

“substantive reviews and supervision of an ALJ’s . . . 

quasi-judicial functions.” Brennan, 787 F.2d at 1562. Yet 

the Board’s interpretation of “good cause” to cover conduct 

that “undermines public confidence in the administrative 

adjudicatory process” is not inconsistent with or in conflict with such independence. Accordingly, under Chev-
17 LONG v. SSA

ron, we must uphold the Board’s interpretation of “good 

cause” in section 7521. 

In upholding the Board’s interpretation of “good 

cause,” we note that the Board’s “good cause” standard 

does not require a “separate analysis of nexus.” Final 

Decision at 22. Again, Long concedes this point. Pet’r’s 

Br. 55; Oral Arg. at 1:18-25. The AALJ, however, takes 

issue with the Board’s failure to require an agency to 

establish a nexus linking the proven misconduct to the 

ALJ’s judicial duties, or to the agency’s reputation and 

ability to discharge its mission. Amicus Br. 17-19, 22-24. 

For support, the AALJ largely relies on cases involving 

the “efficiency of the service” standard of 5 U.S.C. 

§ 7513(a). Section 7513(a) provides that an agency may 

take certain disciplinary actions against an employee 

“only for such cause as will promote the efficiency of the 

service.” 5 U.S.C. § 7513(a). We have held that this 

“efficiency of the service” standard requires that there be 

a “nexus between the employee’s misconduct and the 

work of the agency, i.e., the agency’s performance of its 

functions.” Doe v. Dep’t of Justice, 565 F.3d 1375, 1379 

(Fed. Cir. 2009). The “efficiency of the service” standard 

of section 7513(a), however, is distinct from the “good 

cause” standard of section 7521(a), applicable to ALJs like 

Long. See 5 U.S.C. §§ 7513(a), 7521(a). The Board has 

repeatedly held, as it did here, that the “good cause” 

standard of section 7521 is not equivalent to the “efficiency of the service” standard of section 7513. Final 

Decision at 22-23; see, e.g., Soc. Sec. Admin. v. Carr, 78 

M.S.P.R. 313, 338 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 

1999); Soc. Sec. Admin. v. Mills, 73 M.S.P.R. 463, 467-68 

(1996), aff’d, 124 F.3d 228 (Fed. Cir. 1997) (table). Thus, 

although a finding of nexus is required under the “efficiency of the service” standard of section 7513, the Board’s 
LONG v. SSA 18

failure to require a “separate analysis of nexus” for “good 

cause” under section 7521 was not error. 

Further, we reject the arguments put forward by the 

AALJ and to a lesser extent, Long, that the Board’s 

failure to require a “nexus” analysis for “good cause” 

under section 7521 allows ALJs to be disciplined for 

misconduct entirely unrelated to an ALJ’s judicial duties 

or the relevant agency. See Amicus Br. 8-12, 18; see also

Pet’r’s Br. 54; Reply Br. 24, 27. Specifically, the AALJ 

contends that the Board’s “good cause” standard allows an 

agency to police an ALJ’s private, immoral behavior as 

well as his personal lifestyle choices, which have no 

impact on the agency or the ALJ’s ability to perform his 

duties. Amicus Br. 8-14, 18. These arguments overlook 

the substance of the Board’s “good cause” standard, which 

encompasses only conduct that “undermines public confidence in the administrative adjudicatory process.” Final 

Decision at 20. This standard ensures that misconduct 

constituting “good cause” for disciplinary action relates in 

some way to the character traits expected of an ALJ or to 

the agency’s mission generally. Indeed, misconduct 

wholly unrelated to an ALJ’s position, the characteristics 

expected of an ALJ, or the agency’s performance and 

mission would not in any way “undermine public confidence in the administrative adjudicatory process.” As 

such, despite the lack of a separate nexus requirement, 

the Board’s interpretation of “good cause” ensures that an 

ALJ’s misconduct must have some relationship to the 

agency or to the ALJ’s position in order to subject the ALJ 

to discipline. 

Thus, we uphold the Board’s interpretation of “good 

cause” in section 7521(a).
19 LONG v. SSA

B 

Both Long and the AALJ object to the Board’s application of its “good cause” standard to the facts of this case, 

arguing that the Board erred in finding that Long’s conduct was inconsistent with maintaining confidence in the 

administrative adjudicatory process. See Oral Arg. at 

2:57-3:04, 16:40-19:35; Amicus Br. 11. We disagree. 

During the January 27, 2008 Incident, Long was 

physically violent with his domestic partner, Castro, both 

within and outside the home they shared. Long followed 

Castro, who held their child in her arms, into several 

different rooms of their house, escalating the incident 

with repeated physical assaults. Further, when Castro 

fled the house on foot, Long pursued her. As a result, the 

argument and Long’s physical violence against Castro 

spread into the neighborhood. The incident ultimately 

resulted in the involvement of neighbors and the intervention of police. 

Despite the AALJ’s attempts to classify Long’s misconduct as purely immoral, Long’s actions on the night of 

January 27, 2008 were violent, abusive, and potentially 

criminal. See Amicus Br. 8-9, 11-12, 18. Such violence is 

undoubtedly inconsistent with maintaining respect for 

and confidence in the administrative adjudicatory process. Long’s behavior calls into question his ability to 

perform his duties as an ALJ and to uphold the reputation of the Agency, as it raises serious doubts regarding 

his possession of characteristics essential to the ALJ 

position, including judicial temperament, demeanor, 

control, and judgment. See Final Decision at 24. Thus, 

substantial evidence supports the Board’s finding that 

Long’s conduct undermined public confidence in the 

administrative adjudicatory process. 
LONG v. SSA 20

In so holding, we reject Long’s and the AALJ’s argument that the January 27, 2008 Incident did not result in 

sufficient notoriety or public awareness to warrant “good 

cause” for disciplinary action against Long. Pet’r’s Br. 54; 

Amicus Br. 8, 12; Oral Arg. at 16:40-19:35. As the Board 

recognized, the January 27, 2008 Incident did not receive 

press coverage or substantial public notoriety. Final 

Decision at 27 & n.13. Nevertheless, the record belies 

Long’s and the AALJ’s suggestion that the incident was a 

private matter about which the public was unaware. The 

January 27, 2008 Incident spread into the neighborhood 

when Castro left the house and Long followed her in his 

car. The verbal argument and Long’s physical violence 

against Castro continued in public view. At least two 

neighbors, the Feeneys, who lived almost a mile from 

Long and Castro’s home, became actively involved in the 

incident when Castro arrived at their home, frightened 

and seeking help. Moreover, after the police intervened 

and arrested Long, the police posted his mug shot on the 

publicly accessible Broward County Sheriff’s Office’s 

website. J.A. 306-07; J.A. 1359; J.A .1475; Oral Arg. at 

18:36-45. Long’s co-workers and other ALJs were also 

aware of the incident. J.A. 1110. 

Further, we disagree with the AALJ’s implication at 

oral argument that an ALJ’s misconduct must actually 

receive negative publicity, e.g., through the newspaper, 

television, or the internet, in order to raise concerns 

regarding public confidence in the administrative adjudicatory process. See Oral Arg. at 16:40-19:35. Such press 

coverage is not required for an ALJ’s conduct to undermine public confidence in the administrative adjudicatory 

process. The propriety of disciplinary action against an 

ALJ does not rest on the happenstance of media attention 

regarding the ALJ’s behavior. 
21 LONG v. SSA

Additionally, both Long and the AALJ dispute the 

Board’s finding of “good cause” on the grounds that there 

was no evidence that Long’s conduct actually impacted his 

workplace or ability to perform his duties. Pet’r’s Br. 54; 

Reply Br. 24; Amicus Br. 11-12, 16. The Board’s “good 

cause” standard, however, requires only that the ALJ’s 

conduct undermine confidence in the administrative 

adjudicatory process. Such an undermining of confidence 

occurs where the conduct creates doubts in the ALJ’s 

ability to carry out his responsibilities or raises concerns 

that the ALJ’s behavior will reflect poorly on the agency 

and its adjudicatory process. Here, Long’s supervisors, 

including the Chief ALJ and the Regional Chief ALJ, 

testified that his behavior caused them to have serious 

concerns regarding his ability to adequately perform his 

duties. Final Decision at 24. Moreover, the fact that the 

incident was not purely private raised realistic concerns 

that the public would share such doubts as to Long’s 

ability and the propriety of the Agency’s adjudicatory 

process. See id. at 21 n.9 (quoting Lisa Feeney and Donald Feeney’s impressions regarding Long’s conduct in 

relation to his position as an ALJ). As such, we uphold 

the Board’s finding that Long’s conduct during the January 27, 2008 Incident constituted “good cause” for disciplinary action against him. 

III 

Finally, Long argues that the court should mitigate 

the penalty of removal because the Board misapplied the 

Douglas factors and removal is so unconscionably disproportionate to Long’s conduct that it amounts to an abuse 

of discretion. Pet’r’s Br. 57-72; Reply Br. 29-35. We may 

overturn a penalty imposed by the Board for an ALJ’s 

misconduct “[o]nly in the exceptional case in which the 

penalty exceeds that permitted by statute or regulations 
LONG v. SSA 22

or is so harsh that it amounts to an abuse of discretion.” 

Brennan, 787 F.2d at 1563. Here, the Board conducted a 

thorough analysis of the Douglas factors and found the 

nature and seriousness of Long’s misconduct, as well as 

its negative impact on the Agency and his supervisors’ 

confidence in his ability to adequately perform his judicial 

duties, warranted removal. Final Decision at 24-27. 

Particularly in light of the gravity of the sustained misconduct and evidence that this conduct caused Long’s 

supervisors to have serious concerns regarding his ability 

to effectively serve as an ALJ, we cannot conclude that 

the imposed penalty of removal was so harsh that it 

amounts to an abuse of discretion. Accordingly, we uphold the Board’s penalty of removal. 

AFFIRMED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DANVERS E. LONG 

Petitioner, 

v. 

SOCIAL SECURITY ADMINISTRATION 

Respondent. 

__________________________ 

2010-3108 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CB7521080019-I-1. 

__________________________ 

Dyk, Circuit Judge, concurring. 

 While I join the majority opinion, I write separately to 

express my concerns about the claimed role of the Merit 

Systems Protection Board (“Board”) in determining 

whether federal employees have engaged in misconduct 

outside the workplace.1 Whether the standard is the 

usual “efficiency of the service” standard, 5 U.S.C. § 7513, 

or the “good cause” standard governing discipline for 

administrative law judges (“ALJs”), 5 U.S.C. § 7521, I 

doubt that Congress intended to broadly authorize the 

 1 In addition to this case, our opinion in Doe v. Department of Justice, 565 F.3d 1375 (Fed. Cir. 2009), 

involving alleged off-duty misconduct by a federal law 

enforcement officer, raised similar issues. 
LONG v. SSA 2

Board to conduct investigations into federal employees’ 

private conduct. Neither the Board nor federal agencies 

are given a general warrant to ferret out misconduct in 

the private lives of federal employees. It is one thing for 

the Board to sustain the dismissal of an employee based 

on a criminal conviction; it is quite another for the Board 

to adjudicate criminal behavior when state or federal 

authorities have declined prosecution. 

Despite the Board’s disclaimers, that is effectively 

what the Board did here; it adjudicated criminal conduct. 

The procedures and evidentiary standards were, however, 

substantially different than in criminal proceedings. The 

petitioner was not afforded a jury trial. Moreover, most of 

the evidence on which the Board relied would have been 

inadmissible in a criminal trial. Not only does most of the 

evidence (e.g., the transcript of Ms. Castro’s statement on 

the night of the incident and the testimony by the two 

police officers and Mr. and Mrs. Feeney about what Ms. 

Castro told them happened on the night of the incident) 

constitute hearsay, but the critical item of hearsay––the 

transcript of the police interview with Ms. Castro on the 

night of the incident––was not even authenticated, see

Fed. R. Evid. 901. On top of this, the Board rejected 

some of the factual findings of the administrative judge 

who, unlike the Board, heard live witness testimony. 

Although these failings do not constitute reversible error 

in this case, they certainly raise concerns about fairness 

in these types of proceedings. 

Lastly, neither the Office of Personnel Management 

nor the Board has articulated any consistent or comprehensive standard for when private, off-duty actions may 

lead to workplace discipline, whether they constitute 

“good cause” or satisfy the efficiency of the service standard. See Doe, 565 F.3d at 1380–81. In Doe, we overturned the Board’s decision sustaining the removal of a 
3 LONG v. SSA

federal law enforcement officer for “clearly dishonest” 

conduct because the Board “failed to articulate a meaningful standard as to when private dishonesty rises to [a] 

level of misconduct” where discipline is warranted under 

the “efficiency of the service” standard. Id. at 1380. We 

explained that “without a predetermined standard [concerning when off-duty misconduct can subject employees 

to discipline] . . . federal employees are not on notice as to 

what off-duty behavior is subject to investigation and the 

government could use this overly broad standard to 

legitimize removals made for personal or political reasons.” Id. at 1381. Although the standards issue was not 

properly raised by the petitioner in this case, these same 

concerns also apply to the removal of ALJs for off-duty 

misconduct. 

These features of the present case––the criminal nature of the charges, the prevalence of hearsay and nonauthenticated evidence, the rejection of the administrative judge’s findings, and the lack of a comprehensive 

standard––are disquieting. There is room for such Board 

action in unusual cases, and this appears to be one of 

those cases. This is so because of the seriousness of the 

charge, the fact that the altercation spurred police involvement, the strength of the hearsay evidence, the 

relatively small number of differences between the Board 

and administrative judge on their views of the facts, and 

the failure of Long to raise the standards issue. However, 

the Board must engage in such proceedings only in the 

most unusual circumstances or risk reversal by this court.