In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1953

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, JUDICIAL

 COUNCIL NO. 1, IFPTE, AFL-CIO & CLC, et al.,

Plaintiffs-Appellants,

v.

CAROLYN W. COLVIN, Acting Commissioner of

 Social Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 2925 — Sharon Johnson Coleman, Judge.

____________________

ARGUED DECEMBER 9, 2014 — DECIDED JANUARY 23, 2015

____________________

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

POSNER, Circuit Judge. The Association of Administrative 

Law Judges (its cumbersome official name is given in the 

caption) is a union that, so far as relates to this case, represents the Social Security Administration’s administrative law 

judges in collective bargaining with the Administration, 

pursuant to the Federal Labor-Management Relations Act, 5 
2 No. 14-1953

U.S.C. §§ 7101 et seq. The Association, together with three 

administrative law judges employed by the Social Security 

Administration, are the plaintiffs in this suit, which, though

the named defendant is the head of the Administration, is 

really a suit against the Administration itself because she is 

being sued in her official capacity.

The plaintiffs contend that, by requiring its administrative law judges to decide at least 500 social security disability 

cases a year the Administration has interfered with the administrative law judges’ decisional independence, in violation of the Administrative Procedure Act, which provides 

that when conducting a hearing an administrative law judge

is not subject to direction or supervision by other employees 

of the agency that he is employed by and may not be assigned duties inconsistent with his duties and responsibilities as an administrative law judge. 5 U.S.C. §§ 554(d)(2), 

3105.

In October 2007 the Social Security Administration’s 

chief administrative law judge issued a directive setting as a 

“goal” for the administrative law judges that each one 

“manage their docket in such a way that they will be able to 

issue 500–700 legally sufficient decisions each year.” (When 

the directive was issued, 56 percent of the administrative 

law judges were deciding fewer than 500 cases a year.) Although it is described as a goal, the plaintiffs claim in their 

37-page, 126-paragraph complaint that the Administration 

has taken formal and informal disciplinary measures to enforce it, so that it is in effect an enforceable and enforced 

quota. The purpose of the goal or quota is to reduce the 

backlog of disability cases.
No. 14-1953 3

The district court dismissed the complaint for want of 

subject-matter jurisdiction, holding that the Civil Service Reform Act of 1978 (sections of which are scattered throughout 

title 5 of the U.S. Code) precludes the plaintiffs’ resort to the 

Administrative Procedure Act. The Civil Service Reform Act 

creates remedies for “prohibited personnel practices” taken 

against federal employees, and defines “personnel practices” 

to include “significant change in duties, responsibilities, or 

working conditions.” 5 U.S.C. §§ 2302(a)(1), (2)(A)(xii), (b). 

Subsection (b) has a long list of the prohibited personnel 

practices, most of which are various types of discrimination. 

The district judge ruled that the plaintiffs were alleging a 

“significant change in duties, responsibilities, or working 

conditions,” and if this is correct, their exclusive remedy is 

under the Civil Service Reform Act. It is correct. Increasing 

an employee’s production quota changes his or her duties 

and responsibilities, and therefore working conditions. But 

the plaintiffs have no remedy under that Act either, even if 

they’re right that the challenged order is a quota rather than 

a goal, because the Act does not prohibit an increase in a 

production quota unless the increase violates a prohibition 

listed in 5 U.S.C. § 2302(b), and the increase challenged in 

this case does not.

The plaintiffs argue that because it takes less time for an 

administrative law judge to award social security disability 

benefits than to deny benefits, because an award is not judicially appealable and therefore the administrative law judge 

doesn’t have to be as careful in his analysis of the disability 

claim (doesn’t, in short, have to try to make his decision appeal proof), the effect of the quota (as we’ll call the “goal,” 

thus giving the plaintiffs the benefit of the doubt) is to induce administrative law judges to award more benefits: 
4 No. 14-1953

were it not for the quota, they would deny benefits whenever they thought the applicant wasn’t entitled to them under 

the law, even if making that determination took a lot of time. 

The argument is thus that the quota alters the administrative 

law judges’ preferred ratio of grants to denials of benefits 

and by doing so infringes their decision-making independence.

The argument would have merit if the Social Security 

Administration had imposed the quota because it wanted a 

higher rate of benefits awards, but that is not contended. If 

the result of the quota is that the percentage of such awards 

has risen—and in fact there is evidence that the administrative law judges who decide the most cases per year also 

award benefits in a higher percentage of their cases than do 

the administrative law judges who decide fewer cases per 

year—this is not contended to be an aim of the quota, but an 

unintended and presumably unwanted byproduct. Because 

the social security disability insurance trust fund is on the 

verge of being exhausted, see Rachel Greszler, “Social Security Disability Insurance Trust Fund Will Be Exhausted in 

Just Two Years: Beneficiaries Facing Nearly 20 Percent Cut 

in Benefits,” Aug. 1, 2014 (The Heritage Foundation, Research), www.heritage.org/research/reports/2014/08/social-se

curity-disability-insurance-trust-fundwill-be-exhausted-in-ju

st-two-years-beneficiaries-facing-nearly-20-percent-cut-in-be

nefits, the Social Security Administration is under pressure 

to reduce, not increase, the aggregate disability benefits that 

its administrative law judges award—which in 2012 was 

$137 billion. U.S. Social Security Administration, Office of 

Retirement and Disability Policy, Annual Statistical Supplement, 2013, “Highlight and Trends,” www.ssa.gov/

policy/docs/statcomps/supplement/2013/highlights.html. 
No. 14-1953 5

(Both websites were visited on Jan. 10, 2015.) The aim of the 

quota is to speed up decision-making rather than to prod 

administrative law judges to grant more applications for 

disability benefits.

Of course any change in work duties, responsibilities, or 

working conditions might affect an administrative law 

judge’s decision-making. Beyond some point, increasing a 

worker’s quota is going to induce him to spend less time on 

each task. If he is a worker on a poultry processing assembly 

line and the conveyor belt that carries the chickens to his 

work station for deboning is speeded up, he will spend less 

time deboning each chicken than he might think desirable to 

make sure no bits of bone are left in the chicken when it 

leaves his work station on the conveyor belt. In other words, 

the quality of his output would decline. Yet he would not be 

heard to claim that his decisional independence was being 

compromised. His situation would parallel that of the administrative law judges. The time pressure on him would 

result in a reduction in the quality of his work. Similarly, the 

plaintiffs allege that because of the quota, the quality of the 

administrative law judges’ work decreases because they 

grant benefits in cases in which, had they more time, they 

would have denied benefits; the quota thus affected their decision-making.

Suppose the Social Security Administration hired more 

administrative law judges, thus reducing the workload of 

each one. With less pressure to grant benefits in order to 

make the quota, the administrative law judges might, because they were spending more time on each case, increase 

the fraction of benefit denials. But who would argue that in-
6 No. 14-1953

creasing a work force is an actionable interference with the 

workers’ decisional independence?

In the 1960s and 1970s there were very steep increases in 

federal court caseloads, and increases in the number of 

judgeships lagged. So each judge had to work harder. Maybe 

some judges responded by dismissing more cases earlier 

than they would have preferred to do. Would this have 

meant that by failing to increase the number of judges in 

proportion to the increase in caseload, the government was 

interfering with federal judges’ decisional independence? 

The answer is no, and it is no here as well, and were it otherwise the courts would be flooded with cases brought by 

civil servants complaining that, as an incidental and unintended effect of a change in their working conditions, they 

had decided to reduce the amount of effort they devoted to 

each task they were assigned. An incidental and unintentional effect of a change in working conditions is not actionable under the Administrative Procedure Act.

We are mindful that the District of Columbia Circuit, in 

Mahoney v. Donovan, 721 F.3d 633 (D.C. Cir. 2013), went even 

further, ruling that any action alleged to interfere with an 

administrative law judge’s decisional independence is a personnel action governed exclusively by the Civil Service Reform Act even though that Act provides no remedy for personnel actions that interfere—even that intentionally interfere—with decisional independence. That ruling, if sound, 

would nullify the express protection of such independence 

in the Administrative Procedure Act. We doubt that it’s 

sound but need not pursue the issue in this case. The other 

cases cited in Judge Ripple’s concurring opinion do not involve claims relating to the infringement of decisional inde-
No. 14-1953 7

pendence. But we are mindful of his suggestion that administrative law judges whose decisional independence is interfered with by their superiors might have a constitutional 

remedy. Although the suggestion opens up a rather frightening vista of constitutional claims by administrative law 

judges employed by the federal government, of whom some 

1400 are employed by the Social Security Administration 

alone, we can imagine a case in which a change in working 

conditions could have an unintentional effect on decisional 

independence so great as to create a serious issue of due 

process. Suppose that solely for the sake of administrative 

efficiency the Social Security Administration ordered that 

disability hearings were to last no more than 15 minutes. The 

quality of justice meted out by the administrative law judges 

would be dangerously diminished. But all that matters for 

the decision of the present case is that the administrative law 

judges’ remedy under the Administrative Procedure Act for 

interference with their decisional independence does not extend to the incidental consequences of a bona fide production quota.

AFFIRMED.
8 No. 14-1953

RIPPLE, Circuit Judge, concurring. My colleagues have 

attempted to cabin narrowly their holding. Noting that the 

District of Columbia Circuit has held squarely that any

“personnel action” that interferes with decisional 

independence is remediable, if at all, through the 

administrative mechanisms of the Civil Service Reform Act 

(“CSRA”), see Mahoney v. Donovan, 721 F.3d 633, 636 (D.C. 

Cir. 2013), they stress that this circuit simply holds today 

that the administrative law judges’ remedy under the 

Administrative Procedures Act (“APA”) for interference 

with their decisional independence does not extend to the 

incidental consequences of a bona fide production quota. 

Placing a decision interpreting the gnarled intersection of 

two statutory schemes on narrow grounds is, in most 

instances, a commendable path. I am skeptical, however, 

about the appropriateness of such an approach in this 

situation and write to set forth the reasons for my 

skepticism.

If, as the court intimates, only bona fide personnel 

actions that tread incidentally on decisional independence 

are exempted from the strictures of the APA, we must be 

prepared to undertake the gargantuan task of determining, 

every time a decisional independence allegation is made, 

whether the governmental action is taken in good faith. The 

statutory scheme lacks, of course, any such “bona fides” 

criterion—and for good reason. It would require judges to 

dig into the subjective intent of executive and agency 

officials. It is difficult to imagine how such an inquiry would 

be compatible with Congress’s manifest intent in the CSRA 

to limit judicial intrusion into the day-to-day management of

executive and regulatory government.
No. 14-1953 9

Moreover, the approach taken by the court today is in 

significant tension with the doctrinal path hewed by the 

Supreme Court and this circuit—a path that cuts a far 

broader path for the scope of the CSRA. 

I will discuss both of these reservations in turn.

A.

The Supreme Court has addressed on several occasions 

the preemptive effect that the CSRA has with respect to 

complaints by federal employees about employment 

matters. See Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126 

(2012); United States v. Fausto, 484 U.S. 439 (1988). In Fausto, 

the Court considered whether a nonpreference excepted 

service employee could challenge his suspension in the 

United States Claims Court, even though the CSRA did not 

then afford him a right to review in either the Merit Systems 

Protection Board (“MSPB”) or the Federal Circuit. The Court 

held that 

[t]he comprehensive nature of the CSRA, the 

attention that it gives throughout to the rights 

of nonpreference excepted service employees, 

and the fact that it does not include them in 

provisions for administrative and judicial 

review contained in Chapter 75, combine to 

establish a congressional judgment that those 

employees should not be able to demand 

judicial review for the type of personnel action 

covered by that chapter.
10 No. 14-1953

Fausto, 484 U.S. at 448. 

The Court’s more recent pronouncement on the CSRA,

Elgin, concerned former federal employees who had failed to 

comply with the Selective Service Act and were therefore 

discharged by their employing agencies. See 132 S. Ct. at 

2131. One of the former employees, Elgin, appealed his 

removal to the MSPB and argued that the selective service 

requirement was unconstitutional. The MSPB referred the 

issue to an ALJ for initial decision, and the ALJ dismissed 

the appeal for lack of jurisdiction, “concluding that an 

employee is not entitled to MSPB review of agency action 

that is based on an absolute statutory bar to employment.” 

Id. Elgin did not petition for review by the full MSPB, nor 

did he appeal to the Federal Circuit. Instead, he filed suit in 

district court seeking a declaratory judgment that the 

challenged statute was unconstitutional; he also requested 

reinstatement, backpay, benefits, and attorneys’ fees.

Before the Supreme Court, Elgin argued that the grant of 

general federal question jurisdiction, 28 U.S.C. § 1331, 

provided authority for the district court to entertain his 

action. The Court disagreed. Analogizing the case before it 

to Fausto, the Court stated:

Just as the CSRA’s “elaborate” framework

demonstrates Congress’ intent to entirely 

foreclose judicial review to employees to 

whom the CSRA denies statutory review, it 

similarly indicates that extrastatutory review is 

not available to those employees to whom the 

CSRA grants administrative and judicial 

review. Indeed, in Fausto we expressly 

assumed that “competitive service employees, 
No. 14-1953 11

who are given review rights by Chapter 75, 

cannot expand these rights by resort to” 

judicial review outside of the CSRA scheme. 

As Fausto explained, the CSRA “prescribes in 

great detail the protections and remedies 

applicable to” adverse personnel actions 

against federal employees....Given the 

painstaking detail with which the CSRA sets 

out the method for covered employees to 

obtain review of adverse employment actions, 

it is fairly discernible that Congress intended to 

deny such employees an additional avenue of 

review in district court.

Id. at 2133–34 (citations omitted) (quoting Fausto, 484 U.S. at 

443, 450 n.3).

We also have considered the scope of the CSRA’s 

preemptive effect on at least two occasions and reached 

decisions compatible with the Supreme Court’s decisions. In 

Paige v. Cisneros, 91 F.3d 40 (7th Cir. 1996), a HUD attorney 

had challenged his discharge in district court. The district 

court held that the plaintiff’s administrative hearing was 

constitutionally inadequate and remanded for further 

proceedings. The plaintiff appealed, however, arguing that 

once the court had determined that there was a 

constitutional violation, it should not have remanded the 

matter to HUD. We determined that “the district court 

lacked authority to remand the case to HUD, but for a 

different reason: It hadn’t subject matter jurisdiction. By the 

[CSRA], Congress gave exclusive jurisdiction over civil 

service personnel disputes to the Merit Systems Protection 
12 No. 14-1953

Board (MSPB).” Id. at 42 (citation omitted). We further 

explained:

Since Paige could not appeal to the MSPB, the 

district court thought it appropriate to order 

the creation of a parallel administrative 

apparatus through which he could challenge 

his termination. This action was unwarranted 

because it failed to accord respect to the 

administrative system established by statute 

for reviewing federal personnel actions. A 

statute providing for review of some claims 

but not others means that the “others” (like 

Paige’s) don’t receive review; it does not mean 

that judges should disregard the exclusions 

and order the agency to provide a comparable 

administrative review anyway.

Id. at 42–43.

We reached a similar decision in Richards v. Kiernan, 461 

F.3d 880 (7th Cir. 2006). Richards, a former ATF employee, 

“brought suit against his supervisors alleging that they 

violated his First Amendment rights by retaliating against 

him for his whistleblowing activities”; indeed, he had 

resigned his position citing a hostile work environment. Id.

at 882. He first filed a formal complaint of discrimination 

with the ATF, which was denied. He then turned to the 

Office of Special Counsel. That claim and the appeal also 

failed. Richards then filed a complaint in the district court 

alleging constructive discharge and retaliation; he 

voluntarily dismissed that action, however, to pursue claims 

through the MSPB. “The MSPB held that it lacked 

jurisdiction over Richards’ discharge claim, concluding that 
No. 14-1953 13

he had voluntarily retired, and denied the whistleblower 

claim finding that Richards had not made any protected 

disclosures.” Id. at 883. Rather than appealing that adverse 

ruling to the Federal Circuit, Richards reinstated his First 

Amendment claim in the district court. The district court 

dismissed for lack of jurisdiction, and we affirmed, 

explaining that, “[b]y creating the CSRA, Congress implicitly 

repealed the jurisdiction of federal district courts over 

personnel actions arising out of federal employment.” Id. 

Moreover, the fact that Richards was asserting a 

constitutional challenge did not change the analysis.

In short, a conclusion that the federal courts lack 

jurisdiction over any claim of interference with decisional

independence falls squarely within the extant jurisprudence 

on the subject. Today’s opinion establishes a different 

framework, and, although it does not alter the result, it sets 

us up to travel a different and highly problematic road in the 

future.

B.

The majority suggests that the administrative law judges, 

if they are able to show a lack of bona fides, can challenge 

departmental or agency action trenching on their decisional

independence. Although I am skeptical that the CSRA

permits them to pursue such a course, I also believe that

even the absence of a judicial remedy does not mean that 

there is an absence of a constitutional violation. Rather, it 

simply means that Congress has not seen fit to entrust such a 

systemic issue to the administrative or judicial process. 
14 No. 14-1953

Despite the lack of judicial redress, both statutory design1

and, to some degree, constitutional imperative,2 require that 

the integrity of the administrative judges’ decision-making 

process be respected. It is very possible that executive or 

administrative authorities can so burden the exercise of that 

judicial decision-making process that the congressional 

intent of protecting the administrative law judges can be 

fundamentally impaired. Such an impairment, should it 

occur, is far more than an “incidental and undesired effect,” 

Maj. Op. 6, of the adjudicative process. Congress, under the 

present scheme, apparently has decided to leave the decision 

as to whether such a systemic impairment is occurring to its 

own scrutiny—and perhaps the scrutiny of the courts if a 

litigant should ever raise it as a matter of due process of law 

(a seemingly gargantuan task).

1 See Butz v. Economou, 438 U.S. 478, 513 (1978) (“[T]he process of agency 

adjudication is currently structured so as to assure that the hearing 

examiner exercises his independent judgment on the evidence before 

him, free from pressures by the parties or other officials within the 

agency.”).

2 See Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (holding that, in 

evaluating the licensure decision of a state administrative board, “[i]t is 

sufficiently clear from our cases that those with substantial pecuniary 

interest in legal proceedings should not adjudicate these disputes”); see 

also Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972) (holding that a 

quasi-judicial official cannot, consonant with due process, act as a 

decisionmaker when he is placed in a situation “which would offer a 

possible temptation to the average man as a judge to forget the burden of 

proof required to convict the defendant, or which might lead him not to 

hold the balance nice, clear and true between the State and the accused” 

(internal quotation marks omitted)); Tumey v. Ohio, 273 U.S. 510, 522 

(1927) (“That officers acting in a judicial or quasi-judicial capacity are 

disqualified by their interest in the controversy to be decided is, of 

course, the general rule.”).

 
No. 14-1953 15

Serious impairment of a governmental function can occur 

at the hands of officials with the most worthy of motives. 

The integrity of the judicial function, at any level of 

adjudication, can be undermined seriously by even the most 

benignly motivated administrative or executive action that 

alters the essential function of adjudication. Officials charged 

with the responsibility “to get the job done” must devise 

methods and measures for achieving that goal. Devising 

such tools always requires, however, balancing 

considerations of efficiency with respect for the core 

functions of the governmental unit involved—here the 

adjudication of cases.

The administrative adjudicative process is a vital part of 

our system of administering justice in today’s United States. 

Indeed, it is in the administrative process that most 

Americans have any contact with the American justice 

system. Here, their Government decides whether their 

elderly family members will receive a steady, albeit basic, 

income stream in their old age. Here, those in their family 

who have the misfortune of coping with a physical or 

psychiatric disability find whether they are eligible for 

sufficient support to live in some semblance of economic 

dignity. Administrative law judges affect directly the lives of 

millions; the quality of their work deeply affects, moreover,

the respect that our people have for our system of justice. 

The rights of Americans are not processed by our judges; they 

are adjudicated. The task of adjudication at the administrative 

level involves an intimate knowledge of a complicated 

statutory scheme and the capacity to comprehend and 

analyze technical and, at times, conflicting statutory 

material. The judge must have the practical wisdom to 

evaluate the value of testimony, some of it true, some of it
16 No. 14-1953

untrue, and some of it simply mistaken. Even though we 

review the decisions of these officers under a deferential 

standard, we know well that these analytical and evaluative 

tasks alone are time-consuming and demand great attention 

to detail. 

Finally, I cannot accept even the slightest intimation that 

the exercise of legislative power, even with the most benign 

of motivations, could not constitute a significant 

constitutional impairment of our own work. That the courts 

of the Third Article cannot be burdened with nonadjudicatory responsibilities has long been established.3 I see 

no reason why we should take as a given that those same 

courts ever can be similarly impaired by being deprived of 

the tools necessary to achieve their assigned task with 

integrity.4

With these considerations in mind, I am pleased to join 

the judgment of the court.

3 “As a general rule, we have broadly stated that ‘executive or 

administrative duties of a nonjudicial nature may not be imposed on 

judges holding office under Art. III of the Constitution.’” Morrison v. 

Olson, 487 U.S. 654, 677 (1988) (quoting Buckley v. Valeo, 424 U.S. 1, 123 

(1976)); see also United States v. Ferreira, 54 U.S. (13 How.) 40, 48–51 (1852); 

Hayburn's Case, 2 U.S. (2 Dall.) 409, 411 (1792).

4 See Hon. Deanell Reece Tacha, Independence of the Judiciary for the Third 

Century, 46 Mercer L. Rev. 645, 648 (1995) (“In order for a judge to handle 

her caseload and maximize productivity, she implicitly must possess 

adequate staff, equipment, and physical facilities to carry out her 

responsibilities. Independent judicial action requires an appropriate level 

of support which allows a judge to carry out the judicial function 

without relying on other entities, depending on someone else’s 

assessment of the judge’s needs, or giving any thought in the casedeciding role to tangential factors that might influence the speed of 

deliberation or the outcome.”).