Lloyd Tunik v. Social Security Administration, CB7521000020-T-1, June 27, 2003.

The Merit Systems Protection Board holds that it does not have jurisdiction over alleged constructive removals of administrative law judges under 5 U.S.C. § 7521.

The appellant worked as an administrative law judge (ALJ) at the Social Security Administration. He filed an appeal with the Merit Systems Protection Board (MSPB) claiming that the agency interfered with his qualified judicial independence. He argued that the agency's actions, including efforts to prevent issuance of a decision he had written, constituted a constructive removal under 5 U.S.C. § 7521. The Board's Chief Administrative Judge agreed in part and petitions for review to the full Board were filed by both the appellant and the agency.

The Board agreed with the agency that the Board should look at whether the Board had improperly expanded its jurisdiction beyond that provided by statute. The Board noted that 5 U.S.C. § 7521 provides how an ALJ may be "removed." The Board looked back at its decision entitled In re Doyle, 29 M.S.P.R. 170 (1985) which created a "theory" of constructive removal providing jurisdiction in cases where an ALJ has not been separated from his or her position. The Board said that regulations by the Office of Personnel Management defines removal as including the discharge, involuntary reassignment, demotion or promotion from a position. The Board concluded that adding to this definition by endorsing a "constructive removal" would effectively invalidate OPM regulations implementing § 7521. The Board determined that the plain language of the statute, the relevant legislative history, longstanding regulatory interpretation of the statute and binding precedent from the Federal Circuit and the Court of Claims all lead to the conclusion that "constructive removal" is not an action specifically covered by § 7521 and that the Board lacks jurisdiction in the current case. The Board commented that the language in Doyle to the contrary was "nothing more than dicta" and therefore overruled Doyle.

In sum, the Board has no jurisdiction in such matters unless an ALJ has been separated or reassigned from his position as an ALJ or the ALJ makes the case that his or her decision to leave the ALJ position was involuntary. In the later case, the ALJ would have to meet the test for involuntariness associated with 5 U.S.C. § 7512 for non-ALJs. The Board reversed the initial decision in this case and dismissed the appeal for lack of jurisdiction.

Over the years, judicial independence has been a very sensitive subject for ALJs. Belief that agencies have encroached on this independence has generated a number of appeals with the Board and the courts. While generally unsuccessful, they used scarce resources. Thus, the decision in Tunik closing off the "constructive removal" notion raised by Doyle is welcome.