United States Court of Appeals 

for the Federal Circuit ______________________ 

MARK SHAPIRO,

Petitioner

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent

______________________ 

2014-3113

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CB-7521-11-0024-T-1.

______________________ 

Decided: September 1, 2015

______________________ 

BONNIE J. BROWNELL, The Brownell Law Firm, PC, 

Washington, DC, argued for petitioner. Also represented 

by DONALD ROBERT DEPRIEST, CHRISTOPHER R.

LANDRIGAN. 

ERIC PETER BRUSKIN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent. Also represented 

by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,

FRANKLIN E. WHITE, JR. 

______________________ 

Before LOURIE, LINN, and HUGHES, Circuit Judges.
2 SHAPIRO v. SSA

HUGHES, Circuit Judge. 

Mark Shapiro appeals the Merit Systems Protection 

Board’s finding of good cause to remove him from his 

position as an administrative law judge. Because the 

Board did not err in concluding that Mr. Shapiro’s production was dramatically lower than similarly situated ALJs,

and that this failure to manage his caseload constitutes 

good cause for removal, we affirm.

I 

Mr. Shapiro began working for the Social Security 

Administration as an administrative law judge in the 

New York Hearing Office in 1997. As early as 1998, the 

Agency informed Mr. Shapiro that his performance was 

lacking. In March and April 1998, the Agency informed 

Mr. Shapiro that he was scheduling too few hearings and 

his total number of case dispositions was below expectations. Mr. Shapiro’s poor performance continued and, in 

early 2000, “a tremendous backlog” of cases in his docket

became apparent. Accordingly, the Agency began to take 

an active role in assisting Mr. Shapiro, including reviewing cases, drafting decisions, and returning them for 

signature. Mr. Shapiro’s performance, however, did not 

improve. In 2003, Agency management provided continuing assistance, but Mr. Shapiro issued only a limited 

number of dispositions, causing his backlog to grow 

deeper.

From March 2006 to March 2007, Mr. Shapiro received more counseling from then-Acting Region II Chief

Administrative Law Judge Wright. J.A. 338–39. ALJ

Wright eventually discontinued these meetings in March 

2007, as he did not see an adequate improvement in 

Mr. Shapiro’s productivity. J.A. 341.

In February 2007, the New York Hearing Office Chief 

ALJ sent Mr. Shapiro a memorandum outlining his 

concern over Mr. Shapiro’s failure to process cases in a 
SHAPIRO V. SSA 3

timely fashion and to produce an adequate number of 

decisions. J.A. 293–94. The letter chronicled 

Mr. Shapiro’s history of poor performance, and indicated 

that he had over 70 percent of the 1000-day-old cases in 

the New York Office. J.A. 294 (72.8%); J.A. 332 (over 

75%). 

In October 2007, the then-Chief ALJ for the Agency, 

Frank Cristaudo, sent a memorandum “asking each of our 

[ALJs] to manage their dockets in such a way that they 

will be able to issue 500–700 legally sufficient decisions 

each year.” J.A. 281. In an effort to facilitate meeting 

this goal, the Acting Regional Chief Judge sent 

Mr. Shapiro a memorandum emphasizing Chief ALJ Cristaudo’s message that each ALJ must “manag[e] his/her 

docket effectively.” J.A. 297. As such, the Acting Regional Chief Judge directed Mr. Shapiro to attend a series of 

formal meetings with ALJ Wright. Id. 

During these meetings, ALJ Wright and Mr. Shapiro

engaged in “a frank discussion of [Mr. Shapiro’s] low 

disposition productivity, recommended efficiencies, and a 

clear explanation of management’s productivity expectations . . . .” J.A. 174; J.A. 174–80 (summarizing contents 

of each meeting). As found by the presiding ALJ below, 

the “intent and substance of each ‘improvement meeting’ 

was essentially the same: [Administrative Law] Judge 

Wright and [Mr. Shapiro] discussed [Mr. Shapiro’s] cases 

and why many were lingering in certain pre-or-post 

hearing statuses without resolution or action.” J.A. 180. 

Mr. Shapiro’s productivity, however, did not materially change following the improvement meetings. And for 

Fiscal Years 2008, 2009, and 2010, Mr. Shapiro disposed 

of drastically fewer cases as compared to his peers in the 

New York Hearing Office and across the entire Region II:
4 SHAPIRO v. SSA

FY 2008 

Dispositions

FY 2009 

Dispositions

FY 2010 

Dispositions

Mr. Shapiro 149 122 111 

New York 

Hearing 

Office (Average) 

567 611 630

Region II 

(Average) 

613 608 622

J.A. 254; J.A. 256–58. Thus, in those three years, there 

was a disparity of over 400 cases from the average.

Mr. Shapiro’s supervisor concluded that “despite the 

extraordinary efforts to assist him, to mentor him, [and] 

to train him,” Mr. Shapiro could not manage his docket to 

meet expectations. J.A. 355–56. Accordingly, pursuant to 

5 U.S.C. § 7521, the Agency filed a complaint with the 

Board seeking a finding of good cause to remove 

Mr. Shapiro based on two charges: (1) “unacceptable 

performance” and (2) “neglect of duty.” Charge I contains

three separate specifications relating to the 2008–2010 

time period: (1) failure to provide timely hearings; (2) 

failure to provide timely dispositions; and (3) failure to 

“acceptably manage [ ] cases.” J.A. 39. Charge II contained substantially similar specifications in the context 

of a “Neglect of Duty” charge. 

Pursuant to 5 U.S.C. § 3105 and 5 C.F.R. § 1201.140,

an ALJ was designated to conduct a hearing and issue a 

recommendation regarding the complaint. The presiding 

ALJ heard six days of evidence and argument across two 

sessions, with a break in between to permit Mr. Shapiro

an opportunity to conduct more discovery. During the 

hearing, the Agency presented evidence of the average 
SHAPIRO V. SSA 5

number of case dispositions for ALJs in Mr. Shapiro’s 

office and across the region. This evidence was supported 

by testimony from ALJs who reviewed Mr. Shapiro’s cases 

and concluded that his cases were no different than theirs 

or any other case before the Agency. 

After the hearing, the presiding ALJ found that the 

Agency failed to prove specifications 1 and 2 because the 

Agency had not established “an enforceable timeliness 

standard . . . attributable solely to a judge.” J.A. 156. In 

other words, the Agency could not prove that Mr. Shapiro 

“was solely responsible for the processing times referenced in the cases cited in the . . . complaint.” J.A. 156;

see also J.A. 166. As for the third specification, the presiding ALJ found that the Agency showed by a preponderance of the evidence that Mr. Shapiro failed to 

“acceptably manage his cases” and that such conduct 

constituted good cause for removal. 

The Board found that the presiding ALJ correctly determined that the Agency defined the phrase “acceptably 

manage” in the third specification of Charge I by comparing the number of cases Mr. Shapiro either scheduled for 

hearing or disposed of with the cases scheduled or disposed of by his peers in the New York Hearing Office and 

Region II. J.A. 6–7. The Board found that even if a 

portion of Specification 3 related to the timeliness of 

Mr. Shapiro’s decision, Mr. Shapiro had failed to show 

that the presiding ALJ erred by sustaining the other 

portions of the specification showing a failure to manage 

his cases acceptably. Thus, the Board sustained Charge I 

and found good cause for the removal of Mr. Shapiro. 

Mr. Shapiro appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(9).

II

“Our review of Board decisions is limited. We may only reverse a Board decision if we find the decision to be
6 SHAPIRO v. SSA

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)). “Under the substantial 

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

as a reasonable mind might accept as adequate to support 

a conclusion.’” Abrams v. Soc. Sec. Admin., 703 F.3d 538, 

542 (Fed. Cir. 2012) (quoting Haebe v. Dep’t of Justice, 288 

F.3d 1288, 1298 (Fed. Cir. 2002)). 

The Agency may remove Mr. Shapiro “only for good 

cause established and determined by the [Board] . . . .” 

5 U.S.C. § 7521(a). “Congress intentionally failed to 

define ‘good cause’” leaving it “to be given meaning 

through judicial interpretation.” Brennan v. Dep’t of 

Health & Human Servs., 787 F.2d 1559, 1561–62 (Fed. 

Cir. 1986). “And we have made clear that, as a general 

matter, we defer to the Board’s reasonable interpretation 

of ‘good cause’ because ‘the Board has exclusive rulemaking and adjudicatory authority with respect to section 

7521.’” Berlin v. Dep’t of Labor, 772 F.3d 890, 894 (Fed. 

Cir. 2014) (quoting Long v. Soc. Sec. Admin., 635 F.3d 

526, 534 (Fed. Cir. 2011)). Because Mr. Shapiro does not 

contest that “unacceptable performance” or a lack of 

production can constitute good cause for removal, we need 

only determine whether substantial evidence supports the 

Board’s conclusion that the Agency showed by a preponderance of the evidence that this charge was met. See 

Brennan, 787 F.2d at 1561. 

A 

Mr. Shapiro first argues that the Agency failed to establish “good cause” for removal because the Agency did 

not prove the precise charge asserted. However, this 

argument is predicated on the mistaken assumption that 

removal of an ALJ for “good cause” under § 7521 must 
SHAPIRO V. SSA 7

comply with the precedent and requirements of § 7512 

cases governing removal of employees under the “efficiency of the service” standard. But that is plainly not the 

case. See 5 U.S.C. § 7512(E) (“This subchapter . . . does 

not apply to . . . an action initiated under section 1215 or 

7521 of this title.”). Under the governing regulations, a 

complaint seeking removal of an ALJ need only “describe 

with particularity the facts that support the proposed 

agency action,” 5 C.F.R. § 1201.138, and the Board may 

only discipline an ALJ for “good cause,” id. at 

§ 1201.140(b). This is in contrast to the regulations 

governing § 7512 actions, which require a notice to “state 

the specific reason(s) for the proposed actions,” 5 C.F.R. 

§ 752.404(b)(1), and state that the agency may “consider 

only the reasons specified in the notice of the proposed 

action . . . ,” id. at § 752.404(g)(1). Thus, in the context of 

§ 7521, “[t]he purpose of an agency’s notice of charges is to 

put an employee on notice of the allegations against him 

in sufficient detail to apprise him of the allegations he 

must refute or acts he must justify.” Brennan, 787 F.2d 

at 1561. 

Here, Mr. Shapiro had ample notice of the charges

brought against him. Charge I, labeled “Unacceptable 

Performance,” plainly put Mr. Shapiro on notice that his 

“performance has been unacceptable, in that . . . [i]n or 

about FY2008–2010, [he] did not acceptably manage his 

cases.” J.A. 242. And Mr. Shapiro testified that he understood this to mean that the Agency was seeking to 

remove him from his position due to his perceived mismanagement of cases, including his failure to “produce 

very many decisions.” J.A. 365. The Board, on the presiding ALJ’s recommendation, found good cause for removal 

because Mr. Shapiro was unable to effectively manage his 

docket. There is no indication that this did not comply 

with the governing regulations. And given that the 

hearing was recessed to allow for Mr. Shapiro to conduct 

additional discovery, it is beyond debate that Mr. Shapiro
8 SHAPIRO v. SSA

was “afforded notice ‘both of the charges and of the employer’s evidence’ and an ‘opportunity to respond’ before 

[he was] removed from employment,” as required to 

satisfy due process. Ward v. U.S. Postal Serv., 634 F.3d 

1274, 1279 (Fed. Cir. 2011) (citing Stone v. Fed. Deposit 

Ins. Corp., 179 F.3d 1368, 1374–76 (Fed. Cir. 1999)).

B 

Mr. Shapiro next argues that the Board erred in its 

good cause determination by relying on a comparison of 

his production statistics to regional averages, in contravention of the rule announced by the Board in Social 

Security Administration v. Goodman, 19 M.S.P.R. 321, 

331 (1984). Although Goodman was decided over thirty

years ago, we have not yet had occasion to review its rule 

beyond noting that we are not bound by it. See, e.g., 

Abrams v. Soc. Sec. Admin., 703 F.3d 538, 544 n.2 (Fed. 

Cir. 2012). And we do not adopt it today. We agree with 

Goodman to the extent that it requires a proper foundation for the type of comparative statistics employed here. 

But to the extent Goodman requires some type of heightened evidentiary proof before an agency can rely upon 

comparative production statistics to prove good cause for 

removal, we decline to follow it. When an agency establishes that an individual ALJ’s case disposition rate is so

significantly lower than the rate of similarly situated 

ALJs in his own region, that evidence, absent some contradictory showing that the statistics do not present a 

valid comparison, can support a finding of good cause. 

In Goodman, the Board was concerned with the use of 

comparative statistics to establish that an ALJ’s “performance was sufficiently below a reasonable level of productivity to warrant his removal.” Goodman, 19 M.S.P.R. at

331–32. The Board found that, absent evidence that “the 

same amount of time was required to render most final 

dispositions” and “the complexities presented by the mix 

of cases assigned to the respondent mirrored the complex-
SHAPIRO V. SSA 9

ities of those included” in the compared disposition rates, 

such a comparison would be based only on speculation 

and therefore could not support a finding of good cause. 

Id. Because “no evidence was offered regarding the time 

required to render dispositions or comparing respondent’s 

assignments with those included in the national average,” 

the Board found that the agency failed to meet its burden 

of establishing good cause for removal. Id. at 332. 

Similarly, in Social Security Administration v. Brennan, 19 M.S.P.R. 335 (1984), decided the same day as 

Goodman, the Board rejected evidence that an ALJ’s casedisposition rate was “not within the range of the average 

productivity of all ALJs employed by the agency.” Id. at 

337 n.2. This was because “the national average included 

different types of dispositions, such as dismissals, short 

form reversals, and affirmances both on the written 

record and after a hearing” and there was no evidence 

presented that the ALJ’s caseload mirrored that case 

makeup. Id. at 337.

Goodman and its progeny have been described as a 

“pyrrhic victory for the [Agency]” because it “won the 

right to bring charges against low producing ALJs but 

was handed a virtually insurmountable burden of proof.” 

Jeffrey S. Lubbers, The Federal Administrative Judiciary: 

Establishing an Appropriate System of Performance 

Evaluation for ALJs, 7 Admin. L.J. Am. U. 589, 599–600 

(1994). The proceedings below reflect that sentiment. 

The record reveals a long history of poor performance and 

the Agency’s “unprecedented and extraordinary efforts” to 

assist Mr. Shapiro. See, e.g., J.A. 143, 209. Indeed, the 

presiding ALJ found the Agency “demonstrated extraordinary patience and expended extraordinary effort to 

assist [Mr. Shapiro] . . . in the performance of his duties.” 

J.A. 211. Similarly, counsel for the Agency stated at oral 

argument that the Agency delayed initiating removal 

proceedings because of a perception that Goodman did 

not, in fact, permit the removal of an ALJ for productivity 
10 SHAPIRO v. SSA

reasons.1 It is therefore not surprising that, when it came 

time to evaluate the statistics presented during the 

removal proceedings, the presiding ALJ found: “Doubtless because of Goodman, the Agency went to exceptional 

lengths to establish that during [the relevant time period], the cases assigned to [Mr. Shapiro] were essentially 

the same or similar, in terms of file size, complexity, legal 

and evidentiary and/or factual issues, and time requirements as those cases assigned to all other judges in the 

New York City and Region II hearing offices.” J.A. 187. 

No fewer than four ALJs provided testimony that they 

reviewed Mr. Shapiro’s docket during the relevant 

timeframe. The region chief “personally reviewed . . . [Mr. Shapiro’s] assigned cases” and concluded 

that the cases were the same or similar to those handled 

by other judges within the region. J.A. 187. 

Mr. Shapiro’s supervisor gave similar testimony, testifying that the Agency’s ALJs “see the same types of cases 

‘over and over again.’” J.A. 188 (citation omitted). Indeed, Mr. Shapiro himself conceded that “I have no reason 

to think that any of us [ALJs] are given a different type” 

of case. J.A. 364. Especially in light of this concession, it 

is particularly inappropriate to require the Agency to 

undergo the herculean effort of providing testimony from

four ALJs that an ALJ’s caseload was the same or similar 

to that of any other ALJ in the region before the fact 

finder can rely on any comparative statistics, as the 

Agency perceived to be required by Goodman. 

We agree that there must be a showing that the proffered production statistics are relevant to the determination—i.e., that they reflect the average disposition rate for 

1 Oral Argument at 19:13, Shapiro v. Soc. Sec. Admin., No. 14-3113 (May 7, 2015), available at

http://www.cafc.uscourts.gov/oral-argumentrecordings/14-3113/all. 

 
SHAPIRO V. SSA 11

a particular region across the same time period. But in 

extreme cases like this, where Mr. Shapiro’s production is, 

at best, roughly a quarter of that performed by the rest of

the ALJs in his region, that standing alone is highly 

relevant and potentially preponderant evidence that he 

failed to manage his cases acceptably. Absent some 

suggestion that the character of an individual ALJ’s 

docket dramatically differs from that of his colleagues, or 

any other factors that might undermine the reliability of 

the comparative statistics, the Board is free to give such

statistics appropriate weight when determining whether 

the Agency has met its burden to prove the charges alleged by a preponderance of the evidence. See Brennan, 

787 F.2d at 1561. 

In this case, the presiding ALJ assessed the credibility of the witnesses and concluded that the cases assigned 

to Mr. Shapiro were “essentially the same or similar 

. . . as those cases assigned to all other judges in the New 

York City and/or Region II hearing offices.” J.A. 189. The 

Board adopted these findings, recognizing that they were 

based in part on a credibility determination. J.A. 8–9; see 

also J.A. 15. We see no reason to deviate from these 

findings. See, e.g., Long, 635 F.3d at 530–31.2 

Mr. Shapiro also argues that even if the identified 

cases are the same or similar, the comparative statistics 

relied on by the Board are flawed because they ignore the 

role played by support staff in the rate of disposition; and 

they fail to account for the fact that Mr. Shapiro had far 

fewer cases than the average ALJ used in the comparison. 

2 Because we find that the comparative statistics 

relied on by the Board provide substantial evidence for a 

finding of good cause in this case, we decline to reach 

Mr. Shapiro’s invitation to require agencies to prove 

specific examples of “poor case management.” 

 
12 SHAPIRO v. SSA

Neither of these arguments is sufficient to undermine the 

Board’s findings.

First, Mr. Shapiro did not identify any evidence of 

record suggesting his support staff played a major role in 

his decreased performance numbers. At best, there is 

some evidence in the record suggesting that support staff 

played a role in the timely disposition of cases. But 

nothing in the record provides a legally sufficient basis for 

overturning the presiding ALJ’s finding that timeliness is 

not necessarily tied to production numbers. J.A. 171 n. 29 

(“Although it might be anecdotally true that an ALJ who 

is untimely in scheduling hearings or producing dispositions might also schedule fewer hearings or produce fewer 

dispositions, one does not necessarily follow the other.”). 

Moreover, even if Mr. Shapiro were correct that support 

staff played a role in his inability to manage his docket, 

there is no evidence in the record to support an assumption that his support staff was so far below the norm as to 

account for a disparity of over 400 cases from the average 

for three straight years. Indeed, as the Board recognized, 

Mr. Shapiro conceded that “because of his techniques and 

approach to case processing, he might be able to produce 

only 200 cases per year, far below the [Agency’s] goal of 

500-700 dispositions per administrative law judge per 

year.” J.A. 6–7. 

Second, even if there were a bottleneck caused by 

support staff, the Board did not disturb the presiding 

ALJ’s finding that “a prudent ALJ, aware that staff 

deficiencies contributed to slow case development and a 

low disposition rate, should ask for additional cases to

compensate for those delays . . . .” J.A. 180 n.35. And, as 

a result of the numerous counselling sessions and improvement efforts by the Agency, Mr. Shapiro was no 

doubt aware of the Agency’s expectation that he should 

have decided more cases per year. But during these 

sessions, Mr. Shapiro only once asked for additional cases. 

The Agency complied but his production numbers contin-
SHAPIRO V. SSA 13

ued to be unacceptable. Thus, substantial evidence 

supports the Board’s adoption of the presiding ALJ’s 

conclusion that “even if [Mr. Shapiro] had been given a 

full complement of cases, he could not (or would not) have 

been able to meet the desired quantity.” J.A. 195; J.A. 6–

7. 

III

We find no error in the Board’s removal of 

Mr. Shapiro based on a charge of “unacceptable performance.” The Board’s decision is supported by substantial 

evidence. Moreover, the Agency properly used comparative statistics in this case to establish that Mr. Shapiro’s 

performance was substantially below that of his peers. 

And, the Board complied with the governing regulations, 

as Mr. Shapiro was given adequate notice of the charges 

alleged along with an opportunity to respond. Accordingly, the Board’s decision to remove Mr. Shapiro for good 

cause is affirmed.

AFFIRMED