UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

2023 MSPB 22
Docket No. CB

- 7521

- 18

- 0009

- T

- 1


### Department of Health and Human Services,

Petitioner,

v. Pere J. Jarboe, Respondent. August 2 , 2023

Pere J. Jarboe , Annapolis, Maryland, pro se. Elizabeth Mary Hady
, Esquire, and Jacqueline Zydeck
, Esquire, Chicago, Illinois, for the petitioner.

BEFORE

Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member

OPINION AND ORDER
¶1 The respondent has filed a petition for review of the initial decision,
which found good cause for his removal under 5 U.S.C. § 7 5 21

. For the reasons set forth below, we DENY the respondent’s petition and AFFIRM the initial
decision as MODIFIED to (1) address the respondent’s argument regarding the authority of his employing agency to bring t his complaint before the Board, (2) address the respondent’s additional argument regarding the potential disqual ification of the presiding administrative law judge (ALJ)
, and (3) clarify that the agency has d iscretion to take any action consistent with the Board’s good
cause determination.2

BACKGROUND ¶2 The agency has employed the respondent as an ALJ since 2006. Complaint File (CF), Tab 1 at 78

- 79. He served most recently as a supervisory
ALJ. Id. at 81. In January 2018, the agency filed a complaint with the Board seeking to remove the respondent for his alleged failure to properly adjudicate Medicare appeals, supervise his staff, and follow supervisory instructions.
Id. at 3. Regarding the respondent’s adjudication of Medicare appeals, the agency specified that the respondent had failed to properly conduct hearings and failed to produce legally sufficient an d comprehensible decisions on more than 30 occasions and that he engaged in improper ex parte communications with a party.
Id. at 7. Regarding the respondent’s supervision of staff, the agency specified that the respondent failed to assign sufficient wor k to two employees under his supervision, failed to cooperate with management’s efforts to address performance issues, and failed to alter an employee’s performance standards to accurately reflect the agency’s expectations for her performance. Id. at 20. As to the respondent’s alleged fail ure to follow instructions, the agency specified that the respondent failed to f ollow instructions to provide a plan for managing a subordinate employee’s work and that he failed t o provide information during

an interview regarding his assignment of work to the same subordinate employee.
Id. at 30. ¶3 After holding a hearing on the agency’s complaint, the Board’s presiding ALJ issued an initial decision finding good cause for the respondent’s removal. CF, Tab 164, Initial Decision (ID). Specifically, he found that the agency proved three of its five specifications of failure to properly adjudicate Medicare appeals and both specifications of failure to follow instructions
, but that it failed to prove any specificati ons of failure to properly supervise staff. ID at 17

- 74.
The presiding ALJ further found that the respondent failed to prove any of
his affirmative defenses. ID at 74

- 80. Then, after analyzing the relevant Douglas factors and other considerations, the presiding ALJ determined that good cause3

existed to remove the respondent. ID at 80

- 93. Notably, in his initial summary of the decision, the presiding ALJ further stated that the respondent “is removed from his position as an ALJ.” ID at 4. ¶4 The responde nt has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 3. He argues that the entity that sought
his removal before the Board lacked delegated authority to do so. Id. at 4.
The respondent further argues that the presiding ALJ improperly considered certain records in violation of the Privacy Act. Id. He also argues that the presiding ALJ should have recused himself due to a conflict of interest and that the presiding ALJ did not have properly delegated authority to hear the appeal.
Id. at 13

- 14, 19

- 25. The agency has filed a response in opposition to the petition for review, PFR File, Tab 9, and the respondent has filed a reply, PFR File,
Tab 12.

ANALYSIS ¶5 The respondent first argues that the Office of Medicare H earings and Appeals (OMHA) lacked delegated authority to seek his removal. PFR File,
Tab 3 at 4. Specifically, he argues that by statute he and other ALJs are under the direct supervision of the Department of Health and Human Services and that the
Secret ary of Health and Human Services did not delegate authority to OMHA to initiate actions like the present complaint. Id. The respondent raised essentially this same argument below, IAF, Tab 4 at 2

- 3, but the presiding ALJ did not specifically address this arg ument in the initial decision. Instead, the presiding ALJ briefly addressed several of the respondent’s other claims and found that his “pleadings lack focus or merit, and [that] he abandoned some of his purported defenses by withdrawing them or prese nting no evidence in support.” ID at 75. It is unclear whether the presiding ALJ intended that general finding to address the respondent’s argument regarding the authority of OMHA. However, given4

that the resp ondent specifically raises that argument on review, we modify the initial decision to address it specifically. ¶6 Under 5 U.S.C. § 7521 , “the agency in which the [ALJ] is employed” may take an action against the ALJ upon a finding of good cause by the Board.
5 U.S.C. § 7521 (a). The statute does not require that the complaint be signed or authorized by any particular individual. Thus, we find that the complaint in this matter, which wa s filed by attorneys from the Department of Health and Human Services on behalf of that agency and its subagency OMHA, IAF, Tab 1 at 1, 3,
is consistent with the governing statute

. Moreo ver, as we recently clarified in Social Security Administration v. Le vinson , 2023 MSPB 20 , ¶¶ 37

- 38, the Board’s finding of good cause for removal does not bind the employing agency to actually remove the respondent, but instead only authorizes the employing agency to remove the respondent. We therefore need not opine on which agency official may exercise removal authority after the Board has made its good cause
determination. ¶7 Additionally, even if the respondent could show that the complaint was not signed by the proper individual or that there was some other problem with the delegations of authority relating to the filing of his complaint, such procedural error would only warrant reversal of the initial decision if the respondent could show that it was harmful, i.e., that the complaint likely would not have been filed
in the absence of that error. See Canary v. U.S. Postal Service
, 119 M.S.P.R.
310 , ¶¶ 9

- 12 (2013) (treating a claim regarding the replacement of the proposing and deciding officials in a chapter 75 removal action a s a claim of harmful procedural error). Applying that standard, we find that the appellant has not shown that any error by the agency regarding the authority to file the complaint in
this matter was harmful. 1

1 The appellant also argues that the presiding ALJ did not have proper delegated authority to adjudicate his case. PFR File, Tab 3 at 19

- 24. However, the Board has5

¶8 The respondent also argues that the presiding ALJ improperly considered personnel records that should have been destroyed years earlier. PFR File, Tab 1

at 4. On petition for review, he fails to explain how the consideration of these records was improper or why any error in considering the records w as harmful. We therefore find that the respondent failed to show that the presiding ALJ’s
consideration of those documents warrants reversal of the initial decision. See Panter v. Department of the Air Force
, 22 M.S.P.R. 281 , 282 (1984) (a n adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision )

. ¶9 The respondent next argues that the removal was improper because the only action the agency took b efore seeking his removal was a counseling. PFR File,
Tab 1 at 5. We have
, in certain cases , wrongly suggested that the Board “selects”
or makes the “choice” of pe nalty in a c ase arising under 5 U.S.C. § 7521

. See
, e.g. , Social Security Administration v. Long , 113 M.S.P.R. 190 , ¶ 47 (2010) (stating that “it is the Board, rather than the employing agency, which selects the appropriate penalty”)
, aff’d
, 635 F.3d 526 (Fed. Cir. 2011) ; Social Security
Administration v. Steverson , 111 M.S.P.R. 649 , ¶ 18 (2009) (stating that “the choice of the pen alty is for the Board”), aff’d per curium , 383 F. App’x 939 (Fed. Cir. 2010). However, the Board clarified in Levinson that its finding of good
cause for removal does not bind the employing agency to actually remove the respondent, but merely authorizes i t to do so. See Levinson , 2023 MSPB 20 , ¶¶ 37

- 38. T he employing agency retains discretion to take the Board

- approved action, impose a lesser sanction, or take no action at all. To the extent we

specifically delegated authority to ALJs to adjudicate agency complaints under 5 U.S.C. § 7521

. S ee 5 C.F.R. § 1201. 1 40 (a ); MSPB, Organization Functions and Delegations of Authority at 20

- 21 (2011) , https://www.mspb.gov/foia/files/Organization_Functions_ and_Delegations_of_Authority_1279407.pdf (last visited Aug. 2 , 2023 ). We therefore find th at the respondent has not shown that the presiding ALJ lacked delegated authority.6

previously have stated otherwise
, we hereby overrule th ose decision s in part with regard to this issue

. ¶10 It remains the case, however, that in original j urisdiction cases under
5 U.S.C. § 7521 , when determining whether go od cause exists to take the agency’ s requested action
, the Board considers the factors articulated in Douglas
v. Veterans Adminis tration , 5 M.S.P.R. 280 , 305

- 06 (1980)

. Levinson , 2023 MSPB 20 , ¶ ¶ 4 1

- 4 9 ; Long , 113 M.S.P.R. 190 , ¶ ¶ 4 7

- 54 ; Steverson , 111 M.S.P.R. 649 , ¶ ¶ 18

- 20

. Here , the presiding ALJ noted the respondent’s lack of disciplinary history other than a single c ounseling. ID at 85. Thus , in weighing the relevant aggravat ing and mitigating factors, the presiding ALJ found that the respondent’s lack of prior discipline was a significant mitigating fac tor. Id. However, the presiding ALJ found that the mitigating factors in this case were outweighed by the nature and seriousness of the petitioner’s proven misconduct and the adverse effect of his actions on agency operations. ID at 92 ; see Levinson , 2023 MSPB 20 , ¶ 42 (the Board considers first and foremost among
the Douglas factors the seriousness of the misconduct and its re lationship to the employee’s position and duties). We find no error in the presiding ALJ’s consideration of the relevant factors or his determination that good cause exists for the petitioner’s removal. ¶11 During the processing of the complaint, the respondent requested that the presiding ALJ disqualify himself. IAF, Tab 107. He offered several justifications for his request. First, he noted that the presiding ALJ had been quoted in a news article regardi ng the interpretation of the U.S. Supreme Court’s
decision in Lucia v. Securities and Exchange Commission
, 138 S. Ct. 2044 (2018), in which the Court held that ALJs of the Sec urities and Exchange
Commission are officers of the United States whose appointments must comply with the Appointments Clause of the U.S. Constitution. IAF, Tab 107 at 2, 9

- 14. The respondent also asserted that the presiding ALJ’s activities as a member and officer of the Federal Administrative Law Judge Conference warranted his7

disqualification from this matter. Id. at 3. The presiding ALJ issued an order addressing each of the respondent’s asserted grounds for disqualification and denying his request. IAF, Tab 115. The respondent then requested that the presiding ALJ certify the disqualification issue for interlocutory appeal to the Board, IAF, Tab 125, but the presiding ALJ denied that request as well, IAF,
Tab 131. On petition for review, the resp ondent reiterates several of the grounds for disqu alification he raised below, and further argues that the presiding ALJ should have recused himself because one of the agency’s witnesses in this case was the presiding ALJ’s superior at another agency sever al years before the events at issue in this case. PFR File, Tab 3 at 13

- 14. ¶12 In determining whether an administrative judge should be disqualified on grounds other than bias, the Board’s policy is to follow the standard set out at
28 U.S.C. § 455 (a). 2 Lee v. Environmental Protection Agency
, 115 M.S.P.R. 533 , ¶ 20 (2010).
Under 28 U.S.C. § 455 (a), “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although the Board is not bound by section 455(a), inasmuch as the Board is not

a court, the Board has held that it “see[s] no reason not to look to the rule and case law arising from 28 U.S.C. § 455 where relevant

. . . .” The goal of section 455(a) is to avoid even the appearance of partiality

. Thus, the test applied under section 455(a) is not whether a judge is in fact biased or prejudiced, but whether a judge's impartiality might reasonably be questioned. In enacting section 455(a), Congress created an objective standard under which disqualification of a judge is required when a reasonable person,

2 Although this matter was heard by an ALJ rather than an administrative judge, we see no reason to apply a different standard for disqualification to ALJs. As we noted in Lee , at least one court of appeals has held that ALJs who are employed by the agencies whose actions they review cannot be held to the “mere appearance of impropriety” standard of 28 U.S.C. § 455 (a ). Lee , 115 M.S.P.R. 533 , ¶ 20 n.2 (citing Greenberg v. Board of Governors of Federal Reserve System
, 968 F.2d 164 , 167 (2d Cir. 1992)). However, that rationale does not apply to Board ALJs who are reviewing the proposed actions of other agencies. See id.8

knowing all the facts, would question the judge ’ s impartiality. In applying this standard, it is critically impor tant to identify the facts that might reasonably cause an objective observer to question the judge ’ s impartiality. Shoaf v. Department of Agriculture
, 97 M.S.P.R. 68 , ¶ 7 (2004) (internal citations omitted)
, aff’d , 158 F. App’x 267 (Fed. Cir. 2005) . Applying that standard to the facts of this case, we find that the presiding ALJ did not abuse his discretion in denying the respondent’s request for disqualification. We agree with the presiding ALJ that neither his statements regarding Lucia , nor his activities as part of a professi onal organization
, would lead a reasonable pers on to question his impartiality. We have also considered the respondent’s assertion that the presiding ALJ previously worked at another agency with one of the witnesses in
this matter , but again we find no basis for disqualification

. See Lee , 115 M.S.P.R. 533 , ¶ 22 (finding that the administrative judge’s prior employment at another agency with the agency counsel did not provide a basis f or questioning her impartiality in the present appeal). ¶13 We further find that the presiding ALJ did not abuse his discretion in denying the respondent’s request to certify the disqualification issue for interlocutory appeal. The Board’s regulations provide in part that a judge should certify a ruling for interlocutory review if it “involves an important question of law or policy about which there is substantial ground for difference of opinion.” 5 C.F.R. § 1201.92 (a). The respondent’s request to disqualify the presiding ALJ does not present an important question of law or policy, as the Board’s standards for disqualification are well established. See Lee , 115 M.S.P.R. 533 , ¶ 23. ¶14 Having reviewed the record as a whole and the respondent’s arguments on review, we concur with the presiding ALJ th at the petitioner established good

cause for the respondent’s removal. We note , however, that the presiding ALJ erred in further stating that the respondent “is removed from his position as an
ALJ.” ID at 4. The Board itself does not have the autho rity to remove the respondent. See 5 U.S.C. § 7521 (a) (providing that “the agency in which the9

administrative law judge is employed” may take an action against an ALJ only upon a finding of good cause by the Boar d). Moreover, our determination that good cause exists to remove the respondent does not bind the agency to remove the respondent, but merely authorizes it do so. Levinson , 2023 MSPB 20 , ¶¶ 37

- 38. As stated above, the agency is free to remove the respondent, impose a lesser sanction, or take no action at all.

ORDER ¶15 This is the final decision of the Merit Systems Pro tection Board in this appeal. Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R. § 1201.113 ).

NOTICE OF APPEAL RIG HTS 3 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 t o 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 appropriat e 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 applica ble 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. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions

3 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.10

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 add ress: 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) J udicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain11

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. 420 (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 s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 2001312

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. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 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). 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:

4 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 judici al 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. Pu b. L. No. 115

- 195, 132 Stat. 1510.13

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 Petition ers 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 webs ite 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

.

/s/ Jennifer Everling Acting Clerk of the Board Washington, D.C.