UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SOCIAL SECURITY 

ADMINISTRATION,

Petitioner,

v.

LEONARD COOPERMAN,

Respondent.

DOCKET NUMBER

CB-7521-16-0001-T-1

DATE: May 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Leonard Cooperman, Feeding Hills, Massachusetts, pro se.

Sharese M. Reyes, Esquire, Atlanta, Georgia, for the petitioner. 

Kathryn A. Miller, Esquire, and Meeka S. Drayton, Esquire, Seattle, 

Washington, for the petitioner. 

Patrick W. Carlson, Chicago, Illinois, for the petitioner. 

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

FINAL ORDER

¶1 The respondent has filed a petition for review, and the Social Security 

Administration (SSA) has filed a cross petition for review of the initial decision, 

which sustained charges of neglect of duties and conduct unbecoming, concluded 

that the respondent did not make whistleblowing disclosures, found good cause 

under 5 U.S.C. § 7521 to suspend the respondent for 180 days, and denied SSA’s 

request to suspend the respondent from the date of the complaint through the 

Board’s final decision in this matter. This case was assigned to an administrative 

law judge (ALJ) for adjudication. 5 C.F.R. § 1201.140(a)(1). We DENY the 

respondent’s petition for review and GRANT SSA’s cross petition for review. 

We MODIFY the initial decision to additionally sustain specification 15 of the 

conduct unbecoming charge, but we agree with the ALJ that SSA proved the 

neglect of duties and conduct unbecoming charges as set forth herein. We

FURTHER MODIFY the initial decision to find that the respondent’s 

November 15, 2012 correspondence to the Office of Inspector General (OIG) 

constituted activity protected by 5 U.S.C. § 2302(b)(9)(C) but that he did not 

prove the correspondence was a contributing factor in SSA’s decision to file the 

complaint against him. We FIND that SSA has shown good cause to remove the 

respondent. We DENY SSA’s request to suspend the respondent from the date 

the complaint was filed through the issuance date of this Order.

BACKGROUND

¶2 The following facts, as recited in the initial decision, are generally 

undisputed. Initial Appeal File (IAF), Tab 149, Initial Decision (ID). The

respondent has held the position of an SSA ALJ since June 2005. ID at 7; IAF,

Tab 96 at 20. On October 2, 2015, SSA filed a complaint that sought to remove 

the respondent based on charges of neglect of duties (8 specifications) and 

conduct unbecoming (16 specifications) and to suspend the respondent from the 

date of the complaint through the date of the Board’s final decision in this matter. 
3

ID at 1, 54-55; IAF, Tab 1. The respondent raised a claim of reprisal for 

whistleblowing disclosures. ID at 2; IAF, Tab 84 at 5, 14-18. A multiple-day 

hearing was held. ID at 3; Hearing Transcripts (HTs) 1-7. The ALJ issued a

150-page initial decision, which included 338 findings of fact. ID at 7-57. The

ALJ sustained both charges, including 6 of 8 specifications of the neglect of 

duties charge and 12 of 16 specifications of the conduct unbecoming charge. 

ID at 58-115. The ALJ found that the respondent did not make any 

whistleblowing disclosures. ID at 120-29. The ALJ also determined that there 

was good cause to suspend the respondent for 180 days, but he denied SSA’s 

request to suspend the respondent from the date of the complaint through the date 

of the Board’s final decision in this matter. ID at 130-44. 

¶3 The respondent has filed a petition for review, SSA has filed a response, 

and the respondent has filed a reply. Petition for Review (PFR) File, Tabs 1,

20-21. On petition for review, the respondent challenges the ALJ’s decision to 

sustain specifications 1-6 of the neglect of duties charge and to sustain

specifications 1, 3-12, and 14 of the conduct unbecoming charge. PFR File, 

Tab 1. 

¶4 SSA has filed a cross petition for review, and the respondent has filed a 

response. PFR File, Tabs 5, 15. In its cross petition for review, SSA argues it 

proved specifications 7 and 8 of the neglect of duties charge; it proved

specifications 2, 13, and 15 of the conduct unbecoming charge; and removal is the 

appropriate penalty. PFR File, Tab 5. SSA also reiterates its request to suspend 

the respondent from the date the complaint was filed through the Board’s final 

decision in this matter. Id. at 29-32. 

¶5 The respondent also has filed a motion for oral argument, and SSA has filed 

a response. PFR File, Tabs 2, 9. The regulation at 5 C.F.R. § 1201.117(a)(2)

states that the Board “may” hear oral arguments in any case. We find that oral 

argument will not assist the Board significantly in deciding the petition for 
4

review and cross petition for review, and we deny the respondent’s request. 

Special Counsel v. Environmental Protection Agency, 70 M.S.P.R. 41, 49 (1996). 

¶6 Additionally, the respondent has filed several motions for leave to file an 

additional pleading. PFR File, Tabs 11, 18, 22, 24, 26, 29, 31. The Board’s 

regulations do not provide for pleadings other than a petition for review, a cross 

petition for review, a response to a petition for review, a response to a cross 

petition for review, and a reply to a response to a petition for review. 5 C.F.R. 

§ 1201.114(a)(5). Once the record closes on review, the Board will not accept 

any additional evidence or argument unless it is new and material. 5 C.F.R. 

§ 1201.114(k). The respondent has made no such showing in his submissions. 

We therefore deny his motions. 

¶7 The Association of Administrative Law Judges also has filed two separate 

requests to file an amicus curiae brief. PFR File, Tabs 34, 37. We deny these 

requests because an amicus curiae brief will not contribute materially to the

disposition of this matter. 5 C.F.R. § 1201.34(e). Additionally, the respondent 

has filed a motion to supplement the record. PFR File, Tab 43. He has not 

persuaded us that the proffered evidence, even if new, is material. 5 C.F.R. 

§ 1201.114(k). We therefore deny this request. 

DISCUSSION OF ARGUMENTS ON REVIEW

Standard of Review

¶8 The Board has original jurisdiction to adjudicate actions against ALJs. 

Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 12 (2010), aff’d,

635 F.3d 526 (Fed. Cir. 2011). An agency may take an action against an ALJ 

only for “good cause,” as determined after a hearing by the Board. 5 U.S.C. 

§ 7521(a). SSA must prove good cause by preponderant evidence. Long,

113 M.S.P.R. 190, ¶ 12. Congress has not defined the term “good cause” for 

purposes of section 7521. Id. The Board, however, has adopted a flexible 

approach in which good cause is defined according to the individual 
5

circumstances of each case. Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 5 

(2013), aff’d sub nom., Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir. 

2014). 

SSA proved the neglect of duties charge.

¶9 In specifications 1 and 2 of the neglect of duties charge, SSA alleged that 

the respondent had a duty to comply with agency regulations and policy when 

issuing decisions for a closed period of disability2(CPOD) and he breached that 

duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the 

ALJ found that SSA proved these specifications because the respondent did not 

explain his findings of medical improvement or support his findings with medical 

evidence. ID at 60-78. 

¶10 On review, the respondent asserts that, contrary to the initial decision, he 

was authorized to decide a CPOD based only on a claimant’s statement regarding 

his/her symptoms. PFR File, Tab 1 at 8-17. He asserts that this contention was 

supported by the regulation that defines “medical improvement” as “‘any

decrease in the medical severity of [a] claimant’s impairments[]’” and provides 

that “‘[a] determination that there has been a [medical improvement] must be 

based on changes (improvement) in the symptoms, signs and/or laboratory 

findings associated with [the] impairment(s).’” Id. at 9; 20 C.F.R. 

§ 404.1594(b)(1) (emphasis in original). He further asserts that the ALJ’s 

decision contradicted the relevant regulation and case law from the appellate 

courts and ignored SSA’s Program Operations Manual System. PFR File, Tab 1

at 9-17. 

¶11 Although the regulation uses the disjunctive “and/or,” the ALJ concluded—

and the record reflects—that SSA’s policy required more evidence than a 

 

2 A closed period of disability occurs when a claimant, who was found to be disabled and entitled 

to disability benefits, subsequently experiences medical improvement related to the ability to 

work such that the claimant can engage in substantial gainful activity, the claimant is deemed to 

be no longer disabled, and disability benefits cease. ID at 60; see 42 U.S.C. § 423(f)(1).
6

claimant’s subjective statements to find medical improvement for a CPOD. 

ID at 13, 63; HT 1 at 219-22, 243 (testimony of the Hearing Office Chief ALJ 

(CALJ), who was also the respondent’s first-line supervisor); HT 2 at 220-22, 

227-28 (testimony of the Regional CALJ, who was also the respondent’s 

second-line supervisor); HT 5 at 95-96 (testimony of the Associate CALJ), 

287-88 (testimony of the CALJ); IAF, Tab 94 at 14-15 (explaining in HALLEX

I-2-8-253that any “decision will provide the rationale for the ALJ’s findings of 

fact and conclusions of law by including . . . [a]n explanation of the finding(s) on 

each issue that leads to the ultimate conclusion, including citing and discussing 

supporting evidence” and a “discussion of the weight assigned to various pieces 

of evidence . . .”). 

¶12 Moreover, the record reflects that the respondent was advised by multiple 

agency officials of SSA’s policy regarding the analysis required for CPOD 

decisions. For instance, in a September 7, 2010 email, the respondent’s first-line 

supervisor advised him “to fully rationalize any cessation, no matter what the 

claimant agrees to do.” IAF, Tab 102 at 74 (emphasis in original). In a 

June 2011 retraining with a senior ALJ, he was provided the following guidance:

“[A]ny [residual functional capacity (RFC) assessment], regardless of the 

[claimant’s] agreement as to medical improvement[,] must be married to 

corresponding medical evidence.” 4 IAF, Tab 93 at 5-6 (emphasis in original). 

The senior ALJ explained that a decision “should include a discussion of medical 

improvement showing how the signs, symptoms and objective testing show 

[i]mprovement under the medical improvement standard at the time the period 

 

3 The ALJ found in the initial decision that HALLEX, the Hearing Appeals and Litigation Law 

Manual, was designed to amplify and provide more specificity regarding regulations and rulings, 

it constituted written agency policy, and it was binding on ALJs. ID at 10.

4 An individual’s RFC is “the most [s/he] can still do despite [his/her] limitations” and 

will be assessed “based on all the relevant evidence in [the individual’s] case record.” 

20 C.F.R. § 416.945(a)(1). 
7

closes.” Id. (emphasis in original). In an August 3, 2011 meeting, the respondent 

stated to an Associate CALJ that he did not “see a need to corroborate” a “lucid” 

claimant’s statement that s/he wants a CPOD, and he was advised that there still 

needed to be a second RFC assessment. IAF, Tab 105 at 48. 

¶13 Most significantly, in a December 5, 2011 directive, the respondent’s 

first-line supervisor noted that the respondent’s decisions “contain analytical 

deficiencies including a lack of analysis to support a non-disability RFC and a 

lack of analysis to support a finding of medical improvement beyond the 

claimant’s agreement to a closed period. . . .” IAF, Tab 93 at 21-22. The 

respondent was explicitly directed to determine whether there had been medical 

improvement by comparing prior and current medical evidence and by illustrating 

any improvement in the signs, symptoms, or laboratory findings. Id. at 22. The

respondent’s first-line supervisor subsequently advised him that he should “pick 

and cho[o]se some items from the record, aside from the claimant’s statement” to 

document medical improvement. IAF, Tab 108 at 5; see HT 1 at 241‐42, HT 2

at 60 (testimony of the first-line supervisor). Because the respondent was on 

notice that, during the relevant time period, SSA policy required more than a 

claimant’s statement alone to support a finding of medical improvement, and the 

respondent did not comply with SSA policy, we agree with the ALJ that SSA 

proved these specifications. 

¶14 We have considered the respondent’s reliance on the U.S. Court of Appeals

for the Tenth Circuit’s decision in Newbold v. Colvin, 718 F.3d 1257, 1263-64 

(10th Cir. 2013), which stated that a finding of medical improvement may be 

based on symptoms alone. PFR File, Tab 15 at 10-13. The respondent’s citation 

to Newbold does not warrant a different outcome because the court’s decision 

is not binding on the Board or SSA. Importantly, as pertaining to the merits of 

the charge, decisions of the U.S. Court of Appeals for the Federal Circuit are 

controlling authority for the Board, whereas other circuit courts’ decisions are 
8

persuasive, but not controlling, authority. Fairall v. Veterans Administration, 

33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Additionally, the ALJ 

made findings of fact that SSA ALJs have a duty to comply with the Social 

Security Act, regulations, rulings, agency policies, HALLEX, and Acquiescence 

Rulings.5 ID at 10-11. There is no evidence that SSA issued an Acquiescence 

Ruling after Newbold, and thus, SSA and its ALJs did not have to follow the 

court’s decision. 

¶15 Finally, we have considered the respondent’s contention that Program 

Operations Manual System provision 28010.015(A)(2) controls this issue because 

it advises adjudicators that improvement in symptoms alone, without associated 

changes in signs or laboratory findings, “may support” a medical improvement 

determination. PFR File, Tab 1 at 15-17. This argument is unavailing. Notably,

the ALJ relied on the testimony of various SSA officials and found that the 

Operations Manual is not a prime source of policy at the Office of Disability 

Adjudication Review (ODAR) because it sets forth internal policies for 

proceedings at the district office level, not for hearing operations. ID at 10-11. 

The respondent’s reference to Draper v. Colvin, 779 F.3d 556 (8th Cir. 2015)—

which affirmed a district court decision that deferred to an Operations Manual 

provision regarding liens, adjustments and recoveries, and transfers of assets—

does not warrant a different outcome because SSA did not issue an Acquiescence 

Ruling as to that matter. PFR File, Tab 1 at 16-17. 

¶16 In his reply brief, the respondent contends that he complied with the 

position description that was in place until December 2013, which authorized him 

to “take[] into account all applicable Federal, State, and foreign law[s], statutes, 

 

5 An Acquiescence Ruling is issued when a circuit court has issued a decision contrary 

to SSA policy but SSA agrees to acquiesce to the circuit law. HT 1 at 202 (testimony 

of the first-line supervisor); HT 3 at 78 (testimony of the second-line supervisor); HT 4 

at 225-29 (testimony of the CALJ); HT 5 at 65-66 (testimony of the Associate CALJ); 

IAF, Tab 93 at 12-13; 20 C.F.R. § 404.985. 
9

regulations, rulings, and decisions of the Federal court.”6 PFR File, Tab 21

at 14-15 (emphasis in original); IAF, Tab 93 at 62-67. The respondent argues 

that, until this date, he could “expressly . . . take Federal court decisions from 

whatever jurisdiction into account, and after that date[,] [he] was not prohibited 

from doing so as long as the Federal Court decision did not conflict with [SSA] 

policy.” PFR File, Tab 21 at 15. This argument is unavailing. Indeed, in the 

absence of any evidence that SSA issued an Acquiescence Ruling regarding 

Newbold, Draper, or any circuit court decision that was inconsistent with SSA 

policy, such decisions could not constitute “applicable” decisions, as described in 

the earlier position description. 

¶17 In specifications 3 and 4, SSA alleged that the respondent had a duty to 

“make a complete record of hearings proceedings,” and he breached this duty in 

fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the ALJ

relied on the relevant regulations, HALLEX I-2-6-40, a June 2011 retraining, an 

August 3, 2011 meeting with the respondent, a September 1, 2011 memorandum 

to all ALJs from the CALJ, a December 5, 2011 directive, and testimony 

regarding hearing records from five of the respondent’s cases; the ALJ concluded 

that SSA proved that the respondent had a duty to make a complete record, which 

included a summary of the content and conclusion of any off-the-record 

discussions, and the respondent failed to do so. ID at 14-15, 78-83; IAF, Tab 93

at 7, 21-23, Tab 94 at 10-11. On review, the respondent challenges, among other 

things, the ALJ’s reliance on testimony regarding a “focused review” of only five 

of his hundreds of cases and the December 5, 2011 directive. PFR File, Tab 1

at 18-19. He further asserts that neither the ALJ nor SSA adequately defined the 

requirement that he “adequately summarize” any off-the-record discussions, and 

thus, SSA’s action violates his due process rights. Id. We disagree. Rather,

 

6

The revised position description did not include such language. IAF, Tab 1 at 15-21; 

HT 4 at 213 (testimony of the CALJ); ID at 9 n.6. 
10

consistent with HALLEX I-2-6-40,7the December 5, 2011 directive instructed the 

respondent to “summarize on the record, all off-the-record discussions concerning 

amending claims involving CPODs, as well as any other discussions relevant to 

the issues in a claimant’s case.” IAF, Tab 93 at 23. The respondent, who has 

advanced degrees and was an ALJ for nearly 10 years, ID at 7; HT 6 at 202 

(testimony of the respondent), should have no difficulty understanding SSA’s 

requirement that he summarize such off-the-record discussions. Moreover, we 

are not persuaded that SSA’s review of a small portion of the respondent’s cases 

warrants a different outcome. We therefore discern no error with the ALJ’s 

conclusion that SSA proved specifications 3-4. 

¶18 In specifications 5 and 6 of the neglect of duties charge, SSA alleged that 

the respondent had a duty to safeguard personally identifiable information (PII), 

and he breached this duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. On

review, the respondent contends that, either in late 2014 or early 2015, his 

first-line supervisor directed him to stop sending PII to unsecured partners, and 

he complied with that request. PFR File, Tab 1 at 20; HT 6 at 261-62 (testimony 

of the respondent). As support for his contention that he should not be 

disciplined for this misconduct, the respondent discusses Adamek v. U.S. Postal 

Service, 13 M.S.P.R. 224, 226 (1982), in which the Board barred an agency from 

taking an adverse action against an employee when it already had imposed a 

disciplinary action because of the employee’s misconduct. PFR File, Tab 1 at 21. 

The respondent recognizes that his first-line supervisor’s counseling regarding PII 

did not constitute a disciplinary or an adverse action, but he argues that the 

Board’s reasoning in Adamek should be extended to cases in which the underlying 

behavior “has been previously and amicably addressed, discussed, and resolved” 

 

7 HALLEX I-2-6-40 states, “If a question arises during the course of a hearing that 

is not relevant to the issues in the claimant’s case, the ALJ may decide to discuss and 

resolve it off-the-record. However, the ALJ must summarize on the record the content 

and conclusion of any off-the-record discussion.” IAF, Tab 94 at 10-11. 
11

between the agency and employee, and the behavior was not repeated. Id.

(emphasis in original). We are not persuaded that it is appropriate to extend 

Adamek’s reasoning to a case such as this when there was no prior adverse action. 

See, e.g., Tawadrous v. Department of the Treasury, 477 F. App’x 735, 738 (Fed. 

Cir. 2012) (declining to extend Adamek to a situation when the agency rescinded 

the June 2010 removal before there was a judgment on the merits and provided 

the appellant with back pay and finding that the prior rescinded action “presents 

no obstacle to Treasury’s November 2010 effort to remove [him] on the same 

charges”).8 Because the respondent does not dispute that he failed to safeguard 

PII as described during the timeframe identified in the complaint, we affirm the 

ALJ’s decision to sustain specifications 5-6 of the neglect of duties charge. ID

at 100-02. 

¶19 In specifications 7 and 8 of the neglect of duties charge, SSA alleged that 

the respondent had a “duty to act in a fair and impartial manner” and that he 

breached this duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. SSA relied 

on several emails between the respondent and various claimants’ representatives

to support these specifications. IAF, Tab 111 at 29, 68-69. In the initial 

decision, the ALJ found that the respondent had a duty to act in a fair and 

impartial manner and that the respondent knew of this duty, but SSA did not 

prove that he failed to act in a fair and impartial manner because, among other 

things, the CALJ could not point to any cases in which a claimant received a more 

favorable outcome based on the identity of the claimant’s representative. ID

at 16, 94. In its cross petition for review, SSA argues, among other things, that 

the ALJ took “an unreasonably circumscribed view” of the respondent’s duty of 

impartiality, arguing that this duty extended beyond his interaction with claimants 

and beyond his conduct during hearings. PFR File, Tab 5 at 23-26. We need not 

 

8

The Board may follow a nonprecedential decision of the Federal Circuit when, as h ere, 

it finds its reasoning persuasive. LeMaster v. Department of Veterans Affairs, 

123 M.S.P.R. 453, ¶ 11 n.5 (2016). 
12

resolve this issue on review because, even if we affirmed the ALJ’s decision not 

to sustain these specifications, we would still sustain the neglect of duties charge 

based on our decision to affirm the ALJ’s finding that SSA has proven

specifications 1-6 by preponderant evidence. See Burroughs v. Department of the 

Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that when more than one event 

or factual specification supports a single charge proof of one or more, but not all, 

of the supporting specifications is sufficient to sustain the charge). 

SSA proved the conduct unbecoming charge. 9

¶20 In the complaint, SSA alleged that the respondent engaged in various 

“improper communication[s]” with several claimants’ representatives, which 

constituted conduct unbecoming. IAF, Tab 1 at 11-12. The ALJ sustained

specifications 1, 3-12, and 14 of the conduct unbecoming charge and the charge 

itself. ID at 95-115. Both the respondent and SSA challenge the ALJ’s findings

regarding the specifications. 

¶21 Regarding specifications 1, 3-12, and 14, the respondent contends that the 

ALJ erred by imposing discipline for his “collegial” and “flattering” language in 

correspondence with counsel. PFR File, Tab 1 at 22. He asserts that SSA is not 

represented at hearings and, because the only parties appearing before him are the 

claimant and his/her representative, collegial ALJ-counsel relations are an 

“essential lubricant” that allows the judicial gears to turn efficiently. Id. at 23. 

He also asserts that the ALJ applied a “broad and standardless” rule; the ALJ 

overlooked the “cardinal principle” that one who alleges bias must overcome a 

presumption of honesty and integrity; and a reasonable person with knowledge of 

the relevant facts would not find that the communications create an appearance 

that the law or these standards have been violated. Id. at 22-26. These arguments 

are unavailing. 

 

9

SSA does not challenge the ALJ’s conclusion that it did not prove specification 16 of 

the conduct unbecoming charge. ID at 110-11; PFR File, Tab 5 at 22 n.11. We 

therefore affirm the ALJ’s finding in this regard. 
13

¶22 The Board has described conduct unbecoming an ALJ as “conduct which 

was improper, unsuitable, or detracting from one’s character or reputation.” 

Long, 113 M.S.P.R. 190, ¶ 42. The Board also has held that an agency has proven 

a charge of conduct unbecoming if it proves that the employee violated one of the 

14 general principles contained in 5 C.F.R. § 2635.101(b). Schifano v. 

Department of Veterans Affairs, 70 M.S.P.R. 275, 281 (1996). The ALJ relied on 

the regulation at 5 C.F.R. § 2635.101(b)(8), (b)(14) in his analysis of these 

specifications.10 ID at 95-97. We discern no error with the analytical framework 

used by the ALJ. 

¶23 We also affirm the ALJ’s finding that SSA proved that the communications 

described in specifications 1, 3-12, and 14 constituted conduct unbecoming 

because they give the appearance of a lack of impartiality. For example, in

specification 1, the respondent, in agreeing to a CPOD, told the claimant’s 

representative that “the fact that it’s you as [the claimant’s] attorney doesn’t hurt 

matters,” and that the claimant’s representative was “one of the best attorneys it 

has been [his] privilege to know.” IAF, Tab 1 at 11, 40. He also said that she 

“practice[d] law the way [he] used to, realistically, energetically, and efficiently,” 

commenting “What’s not to like about you?” Id. at 40. In specification 3, the 

respondent told the claimant’s representative, “I just wanted to make sure 

your ___ was covered[.] I protect my lawyers (at least those, like you, whom I 

like).” Id. at 42. In specification 4, the respondent told the claimant’s 

representative that the respondent’s “discretion has a floor and a ceiling, and [the 

representative] always get[s] the ceiling, but to resolve this case without a 

 

10 The regulation at 5 C.F.R. § 2635.101(b)(8) states that employees “shall act 

impartially and not give preferential treatment to any private organization or 

individual.” Subsection 2635.101(b)(14) states that employees “shall endeavor to avoid 

any actions creating the appearance that they are violating the law or the ethical 

standards set forth in this part.” Subsection 2635.101(b)(14) further advises that 

“[w]hether particular circumstances create an appearance that the law or these standards 

have been violated shall be determined from the perspective of a reasonable person with 

knowledge of the relevant facts.” 
14

hearing would require [the respondent] to ascend to the stratosphere!” Id. at 43. 

In a follow-up email, the respondent also stated that he was “flattered” to 

consider himself one of the claimant’s representative’s “friends.” Id. On their 

face, the emails described in specifications 1, 3-4 give the appearance of a lack of 

impartiality. We affirm the ALJ’s decision to sustain these specifications. 

¶24 The respondent further asserts that specifications 5-10, involving email 

correspondence with the same claimant’s representative, do not warrant the 

conclusion that these communications created an appearance of impropriety. PFR

File, Tab 1 at 24. We are not persuaded by these arguments. Rather, we find that 

a reasonable person would conclude that each of these communications was 

improper and/or created an appearance of preferential treatment. For example, in 

the email described in specification 5, the respondent made improper comments 

about claimants’ cases. IAF, Tab 1 at 12, 46-47. In the email described in

specification 6, the respondent states, “Just to show you the amount of good will 

you’ve banked, I set aside a decision I was writing to attend to your email.” Id.

at 12, 47. In the email described in specification 7, the respondent states, “It’s 

always a treat to have a lawyer of your ability and dedication to work with.” Id.

at 12, 49. In the email described in specification 8, the respondent discussed an 

arbitration hearing that he (the respondent) was involved in, referred to an 

Associate CALJ as the “Chicago hit man,” and called him an “anti-judge 

bureaucrat.” Id. at 12, 52. The respondent also stated in this email that he would 

treat attorneys like the recipient differently than other attorneys. Id. at 53 

(“When I have attorneys like you to deal with, I will be the same open, inquiring 

person I have always been, and encourage free-wheeling debate and discussion 

like we’ve always had. Where I have attorneys I don’t know before me, I’ll ask 

no questions other than that of the [vocational expert] . . . .”). In specification 9, 

the respondent made an inappropriate remark about a juvenile claimant to the 

claimant’s representative and invited the representative to contact him over the 

weekend on his personal email account. Id. at 12, 54, 56. In specification 10, the 
15

respondent explicitly acknowledged that his disposition would result in the 

claimant’s representative receiving a fee for his work in that matter, and he noted 

the “effort” that the representative put into the case. Id. at 12, 63. We discern no 

error with the ALJ’s analysis of specifications 5-10 or his conclusion that each of 

these emails gave the appearance of a lack of impartiality and constituted conduct 

unbecoming. ID at 100-05. 

¶25 In the email described in specification 11, the respondent told the

claimant’s representative, “if you are telling me as an officer of the court and my 

friend that the claimant did indeed undergo a fusion in October 2013,” then he 

would decide the case based on her representation. IAF, Tab 1 at 12, 65. In the 

email described in specification 12, the respondent told the claimant’s 

representative that she was “one of a group (fairly small group) of attorneys who 

may always contact [him], bidden or unbidden” and that he “respect[ed] [her] 

immensely, and value[d] [her] input consistently.” Id. at 12, 68. We agree that 

both of these emails are evidence of conduct unbecoming, and we affirm the 

ALJ’s analysis of these specifications. ID at 105-07. 

¶26 In the email described in specification 14, the respondent used his personal 

email address and told the claimant’s representative, among other things, that the 

representative reminded him of himself and that he (the respondent) was “never 

fortunate enough to have the opportunity to appear before a Judge with whom 

[he] could have these types of ‘out of court’ dialogues” regarding a particular 

matter. IAF, Tab 1 at 12, 74-79. We agree with the ALJ that this communication

constituted conduct unbecoming. ID at 108-09. 

¶27 On review, the respondent contends that the ALJ erred because one who 

alleges bias must overcome a presumption of honesty and integrity. PFR File,

Tab 1 at 24-25. Although this is an accurate proposition of law, see, e.g., 

Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980), SSA did not 

allege in the conduct unbecoming specifications—and the ALJ did not find—that 

the respondent was biased in favor of or against the claimants whose 
16

representatives were communicating with the respondent. Moreover, the 

respondent even acknowledged that the communications described in the conduct 

unbecoming specifications are “capable of being interpreted nefariously.” 

PFR File, Tab 1 at 26 (emphasis in original). For these reasons, we agree with 

the ALJ’s decision to sustain specifications 1, 3-12, and 14. 

¶28 Turning to SSA’s cross petition for review, we agree with SSA that the ALJ 

should have sustained specification 15 of the conduct unbecoming charge. 

PFR File, Tab 5 at 28-29. In this specification, SSA alleged that the respondent 

forwarded an email to a claimant’s representative with the subject line “[the 

CALJ] just violated federal law and thumbed nose at U[.]S[.] Supreme Court.” 

IAF, Tab 1 at 12, 80-82. The forwarded email, from a colleague of the 

respondent, called the CALJ a “complete idiot” and included a bulletin which 

allegedly “orders SSA ALJs to violate federal law.” Id. at 80-82. In the initial 

decision, the ALJ found unpersuasive SSA’s argument that the respondent’s 

decision to forward the email to a claimant’s representative would undermine 

public confidence in SSA; however, he did not provide any explanation for his 

decision or cite to any legal authority or the CALJ’s testimony regarding the 

effect of the respondent’s distribution of this email. ID at 109-10; PFR File, 

Tab 5 at 28-29. We disagree with the ALJ’s assessment of this email. Rather, the 

respondent’s decision to forward to a claimant’s representative an internal SSA 

email with commentary that was critical of the CALJ and discussed “inside 

baseball” topics creates an appearance of a lack of impartiality and constitutes 

conduct unbecoming. HT 5 at 279-80 (testimony of the CALJ). We modify the 

initial decision in this regard. 

¶29 We have considered SSA’s arguments regarding specification 13 of the 

conduct unbecoming charge wherein SSA charged that the respondent expressed 

concern for a favored attorney’s receiving a fee in a case she was handling before 

him and suggested how she might go about securing that fee. PFR File, Tab 5

at 27-28; IAF, Tab 1 at 12, 70-73. We have also considered SSA’s argument 
17

regarding specification 2 wherein the agency charged that the respondent’s

decision to use a claimant’s full name and another claimant’s last name in an 

August 31, 2012 email to a claimant’s representative constituted improper 

transmission of PII and, therefore, conduct unbecoming. PFR File, Tab 5

at 26-27. However, we need not resolve either of these issues because we find 

that SSA proved the conduct unbecoming charge based on our decision to affirm 

the ALJ’s decision to sustain specifications 1, 3-12, and 14, and our separate 

decision to sustain specification 15. See Burroughs, 918 F.2d at 172. 

We modify the initial decision to find that the respondent’s November 15, 2012 

letter to OIG constituted protected activity, but he did not prove that the protected 

activity was a contributing factor in SSA’s decision to file a complaint 

against him. 

¶30 As noted above, in the initial decision, the ALJ determined that the 

respondent did not prove that he made any whistleblowing disclosures.11

ID at 115-29. In particular, the ALJ found that the respondent’s November 15,

2012 letter to OIG12 did not constitute a protected disclosure because, among 

other things, his allegations of “mismanagement” did not rise to the level of 

“gross mismanagement” under 5 U.S.C. § 2302(b)(8).

13 ID at 121-23; IAF,

 

11 Neither party challenges the ALJ’s analysis of the respondent’s claim of reprisal for 

whistleblowing as an affirmative defense or his finding that the respondent did not 

make any whistleblowing disclosures. ID at 115-29. Except as modified to discuss the 

respondent’s November 15, 2012 correspondence to OIG, we affirm the initial decision 

in this regard. 

12 In this letter, the respondent reported two instances of “serious mismanagement.” 

IAF, Tab 95 at 39-40. He described how counsel for a disability claimant in one case 

filed a motion to recuse and how counsel for a disability claimant in another case 

complained about him to ODAR management. Id. at 40. He further described how SSA 

sought to take disciplinary action against him during an October 25, 2012 interview, but 

his first-line supervisor, who was present during the meeting, failed to listen to the 

complete version of the hearings in those matters. Id. 

13 During the pendency of this appeal, the National Defense Authorization Act for 

Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on 

December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5 
18

Tab 95 at 39-40. Although not explicitly raised by the respondent on review, we 

modify the initial decision to address this finding. 

¶31 Under the law in effect at the time SSA filed this complaint in 

October 2015,14 an employee may establish a prima facie case of retaliation for 

whistleblowing disclosures and/or protected activity by proving by preponderant 

evidence15 that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) 

or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D); and (2) the whistleblowing disclosure or protected activity was a 

contributing factor in the agency’s decision to take a personnel action against 

him. 5 U.S.C. § 1221(e)(1); Alarid v. Department of the Army, 122 M.S.P.R. 600, 

¶ 12 (2015); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). 

If the employee makes both of these showings by preponderant evidence, the 

burden of persuasion shifts to the agency to prove by clear and convincing 

evidence that it would have taken the same action in the absence of the protected 

activity. Alarid, 122 M.S.P.R. 600, ¶ 14. 

¶32 It appears that the ALJ analyzed this claim under 5 U.S.C. 

§ 2302(b)(8)(B)(ii), which states that it is a prohibited personnel practice (PPP) to 

take a personnel action against an employee because of “any disclosure . . . to the 

Inspector General . . . of information which the employee . . . reasonably believes 

evidences . . . gross mismanagement.” The ALJ’s reliance on this statutory 

provision was in error. We need not remand the appeal, though, because the 

 

of the U.S. Code. Our disposition of this matter would be the same under both pre‐ and 

post-NDAA law. 

14 Although the respondent’s correspondence to OIG predated the December 27, 2012 

effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. 

L. No. 112-199, § 202, 126 Stat. 1465, the Board may consider the provisions of the 

WPEA because SSA’s complaint was filed after that date, Carney v. Department of 

Veterans Affairs, 121 M.S.P.R. 446, ¶ 2 n.1 (2014). 

15 Preponderant evidence is the degree of relevant evidence that a reasonable person, 

considering the record as a whole, would accept as sufficient to find that a contested 

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 
19

record is fully developed on this issue. Instead, we conclude that the 

respondent’s claim is more appropriately analyzed under 5 U.S.C. 

§ 2302(b)(9)(C), which states that it is a PPP to take an action against an 

employee because that employee “disclos[ed] information to the Inspector 

General . . . of an agency . . . in accordance with applicable provisions of law.” 

The respondent’s November 15, 2012 letter satisfies the criteria under section 

2302(b)(9)(C) and constitutes protected activity. See, e.g., Special Counsel v. 

Hathaway, 49 M.S.P.R. 595, 612 (1991) (finding that section 2302(b)(9)(C) 

covers employee disclosures to OIG that do not meet the precise terms of the 

actions described in section 2302(b)(8)), recons. denied, 52 M.S.P.R. 375, aff’d, 

981 F.2d 1237 (Fed. Cir. 1992). 

¶33 We must next determine whether the respondent’s November 15, 2012 letter 

to OIG was a contributing factor in SSA’s decision to file the complaint against 

him. One way of proving that the respondent’s protected activity was a 

contributing factor in the personnel action is the “knowledge/timing test.” Alarid,

122 M.S.P.R. 600, ¶ 13 (citing Shibuya v. Department of Agriculture, 

119 M.S.P.R. 537, ¶ 22 (2013)). The knowledge/timing test allows an employee 

to demonstrate that the protected activity was a contributing factor in a personnel 

action through circumstantial evidence, such as evidence that the official taking 

the personnel action knew of the protected activity and that the personnel action 

occurred within a period of time such that a reasonable person could conclude 

that the protected activity was a contributing factor in the personnel action. 

Alarid, 122 M.S.P.R. 600, ¶ 13; see 5 U.S.C. § 1221(e)(1). The ALJ found—and 

the respondent does not contest—that the CALJ who signed the complaint was not 

aware of the respondent’s November 15, 2012 letter to OIG when she authorized 

the filing of the complaint in this matter. ID at 53. Thus, the knowledge 

component of the knowledge/timing test is not satisfied. 

¶34 There are, however, other ways to satisfy contributing factor, such as 

evidence pertaining to the strength or weakness of the agency’s reasons for taking 
20

the action, whether the protected activity was personally directed at the proposing 

or deciding officials, and whether these individuals had a desire or motive to 

retaliate against the respondent. Dorney v. Department of the Army, 

117 M.S.P.R. 480, ¶ 15 (2012); Powers v. Department of the Navy, 69 M.S.P.R. 

150, 156 (1995). As noted above, there is strong evidence to support SSA’s 

charges. The November 15, 2012 letter identified the respondent’s first-line 

supervisor by name and criticized ODAR’s region one management, IAF, Tab 95 

at 39-40, but there is no evidence that the respondent’s first-line supervisor, or 

anyone in ODAR region one management, had any knowledge of the respondent’s

November 15, 2012 letter to OIG prior to the complaint being filed or that any of 

these individuals had a desire or motive to retaliate against the respondent. E.g.,

HT 1 at 281 (testimony of the respondent’s first-line supervisor); HT 2 at 277 

(testimony of the respondent’s second-line supervisor). Finally, we have 

considered whether the CALJ had constructive knowledge of the respondent’s 

OIG letter, Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 15 

(2016), but we are not aware of any evidence in this regard. 

¶35 Because we have found that the respondent failed to prove that his protected 

activity was a contributing factor in SSA’s decision to file the complaint seeking 

to remove him, it is unnecessary to determine whether SSA proved by clear and 

convincing evidence that it would have filed the complaint in the absence of the 

respondent’s protected activity. See Clarke v. Department of Veterans Affairs, 

121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). 

We find that there is good cause to remove the respondent. 

¶36 The ALJ correctly noted that, in evaluating the penalty in an original 

jurisdiction case under 5 U.S.C. § 7521, the Board looks to the factors articulated 

in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). ID

at 130; Long, 113 M.S.P.R. 190, ¶ 47. In the initial decision, the ALJ evaluated 

the Douglas factors, finding, among other things, that the sustained misconduct 

was “serious, and . . . repeated notwithstanding clear notice and guidance” from 
21

SSA, and the misconduct merited a “substantial” penalty. ID at 130-43. 

However, the ALJ concluded that a 180-day suspension was a reasonable penalty. 

ID at 143-44. On cross petition for review, SSA asserts that the ALJ improperly 

considered the following penalty factors as mitigating factors: (1) the 

respondent’s past work record; (2) the consistency of the penalty; (3) the 

notoriety of the offense; (4) the respondent’s potential for rehabilitation; and 

(5) the availability of alternative sanctions. PFR File, Tab 5 at 11-22; ID

at 143-44. 

¶37 We disagree with SSA’s arguments regarding the ALJ’s evaluation of the 

respondent’s past work record. SSA challenges the ALJ’s finding that the 

respondent’s productivity and intelligence were mitigating factors, and it asserts 

that the ALJ ignored the fact that SSA referred the respondent to the OIG for 

investigation in 2013. PFR File, Tab 5 at 12-15; ID at 133-39, 141. In the initial 

decision, the ALJ cited the testimony of others regarding the respondent’s 

productivity and intelligence and found that the respondent had a positive work 

ethic and was viewed as intelligent and fair by representatives who appeared 

before him. ID at 141-43. SSA argues that the respondent’s high productivity is 

illusory given his failure to abide by agency policy, PFR File, Tab 5 at 12-13, but 

this fact, even if true, does not warrant a different outcome. The ALJ also noted, 

among other things, that SSA received numerous complaints against the 

respondent, and his supervisor estimated that 80% of his workload in dealing with 

complaints against ALJs involved complaints submitted against the respondent. 

ID at 141. It therefore appears that the ALJ identified the relevant evidence 

regarding this factor. Even if the ALJ did not discuss the OIG referral in his 

analysis of the particular penalty factor, he discussed it in his findings of fact. ID 

at 26-27. Additionally, the ALJ’s failure to mention all of the evidence of record 

does not mean that he did not consider it in reaching his decision. Marques v. 

Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,

776 F.2d 1062 (Fed. Cir. 1985). 
22

¶38 However, we agree with SSA’s argument that the ALJ did not properly 

evaluate the notoriety of the respondent’s offense. PFR File, Tab 5 at 12-15. The 

ALJ acknowledged that a district court decision in Betancourt v. Astrue, 

824 F.Supp.2d 211 (D. Mass. 2011), discussed the respondent’s failure to 

memorialize off-the-record conversations, ID at 142, but the ALJ was not 

persuaded by SSA’s speculation that claimants and their representatives were 

aware of the respondent’s misconduct, and he concluded that the evidence did not 

show that the misconduct was notorious or adversely impacted SSA’s reputation. 

Id. Yet, as the ALJ noted just paragraphs earlier in his decision, that very same 

handling of off-the-record conversations admonished in Betancourt had been the 

subject of numerous complaints since at least 2010, resulting in the 

aforementioned testimony from the first-line supervisor that 80% of his workload 

in dealing with complaints against ALJs involved complaints submitted against 

the respondent. ID at 140-41. We therefore agree with SSA that, as an ALJ, the 

respondent held a prominent, visible, and public position that is subject to 

scrutiny, perhaps more so than many other types of agency officials who do not 

routinely interact with the public, and that his misconduct, even if not technically 

notorious, did reflect negatively on SSA’s reputation. 

¶39 We also are persuaded that the ALJ erred in his analysis of the consistency 

of the penalty, the respondent’s potential for rehabilitation, and the availability of 

alternative sanctions. For instance, regarding the consistency of the penalty with 

those imposed upon other employees for the same or similar off enses, we agree 

with SSA that the ALJ took a narrow view of this factor by failing to mention any 

of the misconduct relating to the conduct unbecoming charge. PFR File, Tab 5

at 16; ID at 142. Importantly, the CALJ testified that she sought removal of 

another ALJ for only “neglect of duty for failure to follow Agency policy,” the 

appeal of which was then pending, and she stated that the respondent’s 

misconduct was “very, very rare.” HT 5 at 291-92 (testimony of the CALJ). 
23

Given the unusual nature of the sustained misconduct, we find that the absence of 

comparator evidence is not a mitigating factor. 

¶40 Regarding the respondent’s potential for rehabilitation, the ALJ considered 

the fact that the respondent improved his practices regarding PII and also began 

memorializing “more” of the content of his off-the-record conversations and 

communications. ID at 139, 143. Although the degree to which the respondent 

may have improved his efforts to memorialize his off-the-record conversations is 

unclear, PFR File, Tab 5 at 19, the ALJ properly considered such evidence in his 

assessment of the respondent’s potential for rehabilitation. However, the ALJ 

also cited to the respondent’s brief that he was “‘able and willing’ to adjust his 

behavior” to support the conclusion that he had a potential for rehabilitation. 

ID at 139 (citing IAF, Tab 112 at 73). Statements of a party’s representative in a 

pleading do not constitute evidence, Hendricks v. Department of the Navy, 

69 M.S.P.R. 163, 168 (1995), and it was error for the ALJ to rely on the 

representative’s statements in this regard.

16

 We find that there is not a strong 

potential for rehabilitation here, particularly given the respondent’s failure to 

comply with SSA policy regarding CPOD decisions and his numerous improper 

communications with claimants’ representatives that gave the appearance of a 

lack of impartiality. Indeed, as the ALJ found, the respondent “persistently 

challenged and resisted [SSA] direction, maintaining that [SSA’s] policies were 

incorrect and that [his] practices were justified.” ID at 133. Moreover, regarding 

his communications with claimants’ representatives, there is no evidence 

whatsoever that he improved his communications or judgment in this regard; thus, 

we find that there is little potential for rehabilitation. 

¶41 Finally, regarding the adequacy and effectiveness of alternative sanctions,

the ALJ noted that the respondent previously had not been sanctioned in 

connection with the sustained misconduct, and he concluded that the record 

 

16 Although the respondent is pro se on review, PFR File, Tab 7, he was represented 

during the proceedings below, IAF, Tabs 5, 112. 
24

did not show that removal, rather than a lesser sanction, would be more effective 

to deter the respondent or others from engaging in similar conduct. ID at 143. In 

its cross petition for review, SSA argues, in pertinent part, that the lack of prior 

discipline does not make removal inappropriate in this case. PFR File, Tab 5 

at 20 (noting that, in cases such as Long, 113 M.S.P.R. 190, and Social Security 

Administration v. Steverson, 111 M.S.P.R. 649 (2009), the Board has found good 

cause to remove an ALJ even in the absence of prior discipline). Here, the 

respondent received the December 5, 2011 directive, which advised him that 

failure to follow the directive may lead to disciplinary action. IAF, Tab 93 at 23. 

Moreover, the ALJ made the following findings: (1) SSA referred the respondent 

to OIG in October 2013; (2) OIG conducted an investigation; (3) it was ODAR’s 

practice to hold in abeyance any administrative actions against an employee once 

an OIG referral has been made; and (4) prior to the OIG referral SSA had been 

working on potential discipline for the respondent. ID at 26-27. Thus, the fact 

that SSA took no action against the respondent from the time of its October 2013 

referral to OIG until after it received the OIG reports in December 2014 and 

February 2015, ID at 27, does not, under these circumstances, make this 

factor mitigating. 

¶42 We agree with the ALJ’s analysis of the nature and seriousness of the 

misconduct, which is the most significant Douglas factor, and his conclusion that 

the respondent’s misconduct was “serious,” “repeated,” “directly pertain[ed] to 

[his] responsibilities as an ALJ,” “negatively impact[ed] the legal sufficiency and 

defensibility of his [CPOD] decisions,” “directly affect[ed] [the respondent’s] 

obligation to provide claimants with a full, due process hearing,” and “reflected 

poorly on the ALJ position.” ID at 131-32, 143; Murry v. General Services 

Administration, 93 M.S.P.R. 554, ¶ 8 (2003), aff’d, 97 F. App’x 319 (Fed. Cir. 

2004). We also agree with the ALJ that the sustained misconduct warrants a 

“substantial” penalty. ID at 143. Although a 180-day suspension is a significant 

penalty, Colon v. Department of the Navy, 58 M.S.P.R. 190, 204 (1993), we find 
25

that, given the serious and repeated nature of the misconduct, the Douglas factors 

discussed herein, and the ALJ’s assessment of the remaining factors, SSA has 

proven good cause to remove the respondent. See, e.g., Steverson, 111 M.S.P.R. 

649, ¶¶ 2-3, 6-12, 19-21 (finding good cause to remove the respondent ALJ based 

on charges of conduct unbecoming, lack of candor, misuse of Government 

equipment, and failure to follow agency policy). 

We deny SSA’s request to suspend the respondent from the date the complaint 

was filed through the Board’s final decision. 

¶43 SSA argued in its complaint that the respondent’s neglect of duties and 

conduct unbecoming “fundamentally undermines public confidence” in the 

agency’s adjudicatory process, and, therefore, good cause exists to suspend him 

from the date of the October 2, 2015 complaint through the Board’s final decision

in this matter. IAF, Tab 1 at 5, 12-13. In the initial decision, the ALJ noted that 

SSA cited no authority to support its request for a retroactive suspension, and he 

rejected SSA’s request in this regard. ID at 144. In its cross petition for review, 

SSA challenges the ALJ’s conclusion, emphasizing that, because Congress 

has not defined the term “suspension” in 5 U.S.C. § 7521, the Board can give it 

meaning. PFR File, Tab 5 at 29-32. 

¶44 Other than citing to section 7521, SSA provides no legal basis for its 

request; rather, SSA only appears to focus on policy arguments. Id. We are not 

persuaded by SSA’s arguments. Importantly, section 7521(a) advises that an 

agency may not take an action against an ALJ until the Board “establish[es] and 

determine[s]” that the agency has made a showing of good cause. 5 U.S.C. 

§ 7521(a); see, e.g., Social Security Administration v. Boham, 38 M.S.P.R. 540, 

546-47 (1988) (finding that SSA proved good cause to discipline the respondent 

ALJ based on his refusal to comply with reasonable orders concerning case 

scheduling and authorizing SSA to suspend him for a period up to 75 days), aff’d, 

883 F.2d 1026 (Fed. Cir. 1989) (Table). SSA is essentially asking the Board to 

approve a time-served suspension. However, the Board has held that the 
26

imposition of a time-served suspension is arbitrary. Milligan v. U.S. Postal 

Service, 106 M.S.P.R. 414, ¶ 13 (2007); see Greenstreet v. Social Security 

Administration, 543 F.3d 705, 709 (Fed. Cir. 2008) (“[T]he length of a suspension 

is arbitrary when it is based solely on the suspended employee’s ‘time served’ 

awaiting decision.”). We are not persuaded that it is appropriate to interpret the 

statute at 5 U.S.C. § 7521 as authorizing a time-served or retroactive suspension, 

and we deny SSA’s request. 

ORDER

¶45 We have considered the parties’ remaining arguments, but we find them 

unpersuasive. The Board authorizes the petitioner to remove the respondent for 

good cause shown, pursuant to 5 U.S.C. § 7521. 

NOTICE OF APPEAL RIGHTS17

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

 

17 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
27

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
28

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court‐appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
29

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.18 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

18 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
30

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board