Levinson v. Ssa

• Court: Court of Appeals for the Federal Circuit
• Decided: July 30, 2024
• Docket: 23-2277
• Status: Unpublished

Opinion

Case: 23-2277 Document: 40 Page: 1 Filed: 07/30/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MICHAEL L. LEVINSON, Petitioner

v.

SOCIAL SECURITY ADMINISTRATION, Respondent ______________________

2023-2277 ______________________

Petition for review of the Merit Systems Protection Board in No. CB-7521-17-0023-T-1. ______________________

Decided: July 30, 2024 ______________________

MICHAEL L. LEVINSON, Atlanta, GA, pro se.

MEEN GEU OH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY. ______________________

Before DYK, SCHALL, and HUGHES, Circuit Judges. Case: 23-2277 Document: 40 Page: 2 Filed: 07/30/2024

PER CURIAM. Michael L. Levinson, appearing pro se, challenges the Merit Systems Protection Board’s decision that the Social Security Administration proved its charges of misconduct and that good cause existed for removal from his position as an administrative law judge. For the reasons that follow, we affirm. I Since his appointment in 2004, Mr. Levinson has been an administrative law judge in the Social Security Admin- istration’s (SSA) Office of Disability Adjudication and Re- view at the Macon, Georgia hearing office. S.A. 2. 1 Between January 2008 and May 2015, Mr. Levinson was detailed to the Birmingham, Alabama hearing office, but returned to the Macon hearing office in June 2015. S.A. 45. On June 28, 2017, the SSA filed a complaint charging Mr. Levinson with neglect of duties, failure to follow directives, and con- duct unbecoming of an administrative law judge. S.A. 2–3. Based on these charges, the MSPB concluded the SSA es- tablished good cause for Mr. Levinson’s removal and au- thorized the SSA to remove him. S.A. 26. The conduct relevant to each charge is described below. A Mr. Levinson was first charged with neglect of duty based on the content of his decisions as an administrative law judge. S.A. 5 (final MSPB decision); S.A. 53–54 (initial MSPB decision). In 2015, the Office of Appellate Opera- tions Division of Quality randomly sampled a collection of Mr. Levinson’s decisions for “a focused quality review.” S.A. 46. This review “identified deficiencies in multiple ar- eas of [Mr. Levinson]’s decisions, including amended

1 Citations to “S.A.” refer to the Supplemental Ap- pendix accompanying the SSA’s response brief. Case: 23-2277 Document: 40 Page: 3 Filed: 07/30/2024

LEVINSON v. SSA 3

alleged onset dates, evaluation of opinion evidence, appli- cation of the five-step sequential process, evaluation of re- sidual functional capacity, vague or incomplete hypothetical questions at hearings, and bench decisions.” S.A. 46. The Hearing Office Chief Administrative Law Judge (HOCALJ), Amy Uren, met with Mr. Levinson about the results of the review and in 2016, directed Mr. Levin- son to complete a 25-day training course to address the identified deficiencies. S.A. 45–46. Mr. Levinson completed the training course in 2016. S.A. 46. Subsequently, the agency re-reviewed Mr. Levinson’s more recent 2016 deci- sions, and concluded that the previously identified deficien- cies persisted. See S.A. 46. The Associate Chief Administrative Law Judge for Field Procedures and Em- ployee Relations, Mark Sochaczewsky, then reviewed addi- tional decisions, which he “identified as non-compliant with agency regulations, policy, and interpretations of law,” and Mr. Sochaczewsky issued a written report “iden- tifying deficiencies in all 25 decisions” that he reviewed. S.A. 46–47. Reviewing this evidence, the MSPB deter- mined that the SSA had shown, by preponderant evidence, that Mr. Levinson had neglected his duties. S.A. 53; see also S.A. 5 & n.3, 10. B Mr. Levinson was next charged with failure to follow three specific directives from his supervisors at the Macon and Birmingham hearing offices. S.A. 6–9 (final MSPB de- cision); see also S.A. 54–59 (initial MSPB decision). First, on November 12, 2014, while Mr. Levinson was detailed to the Birmingham hearing office, HOCALJ Edward Zanaty “issued a directive to [Mr. Levin- son] instructing him to cease directly contacting expert wit- nesses and avoid any off the record discussions with expert witnesses regarding their availability to provide testi- mony.” S.A. 45, 47. Instead, as required by office policy, Mr. Levinson was instructed “to have hearing office staff Case: 23-2277 Document: 40 Page: 4 Filed: 07/30/2024

select and contact medical experts on a rotational basis as mandated by [the SSA’s Hearings, Appeals, and Litigation Law Manual].” S.A. 55–56. Nonetheless, Mr. Levinson “continued to directly contact medical experts to determine their availability for hearings.” S.A. 47. Based on these facts, the MSPB determined that the SSA had proven that Mr. Levinson violated HOCALJ Zanaty’s November 12 di- rective. S.A. 6–9; see also S.A. 54–56. Second, on June 28, 2016, HOCALJ Uren issued a di- rective to Mr. Levinson based on his failure to “comply with agency policy and correct issues identified in the focus quality review.” S.A. 56. Mr. Levinson was specifically di- rected to “comply with the Social Security Act, as well as agency regulations, rulings, policy statements, and other interpretations of the law in hearing and deciding cases.” S.A. 56. The MSPB determined that Mr. Levinson’s contin- ued failure to issue compliant decisions, as evidenced by the results of the re-review and Mr. Sochaczewsky’s re- view, constituted preponderant evidence that Mr. Levinson violated HOCALJ Uren’s June 2016 directive. S.A. 58; see also S.A. 6. Third, during the summer of 2016, HOCALJ Uren re- peatedly directed Mr. Levinson to attend sensitivity train- ing based on “conduct unbecoming” of an administrative law judge. S.A. 47. On October 24, 2016, HOCALJ Uren is- sued her third directive to Mr. Levinson to attend sensitiv- ity training on October 26, 2016. S.A. 47. Mr. Levinson refused to attend any sensitivity training. S.A. 47–48. The MSPB found that the SSA had proven that Mr. Levinson violated a third directive given by HOCALJ Uren on Octo- ber 24, 2016. S.A. 9; see also S.A. 58–59. C Finally, Mr. Levinson was charged with conduct unbe- coming of an administrative law judge due to his “outbursts over the course of 5 days between August 2016 and Janu- ary 2017.” S.A. 9 (final MSPB decision); see also S.A. 59–64 Case: 23-2277 Document: 40 Page: 5 Filed: 07/30/2024

LEVINSON v. SSA 5

(initial MSPB decision). After HOCALJ Uren advised Mr. Levinson of a scheduled Weingarten 2 meeting regard- ing “his possible violations of multiple agency directives . . . as well as conduct unbecoming [of] an [administrative law judge],” Mr. Levinson went to her office on August 24, 2016. S.A. 48. While there, Mr. Levinson “became upset and was shaking,” telling “HOCALJ Uren in a raised voice that she was harassing him, [that she] can’t hide her ac- tions behind other people, and [that she] is responsible for her actions.” S.A. 48. Then Mr. Levinson “got close to HOCALJ Uren’s face and said she was like a Nazi and worse than a Nazi.” S.A. 48. On September 6, 2016, during the Weingarten meeting, Mr. Levinson accused HOCALJ Uren of being “a liar” and said that “everything [she said was] a lie.” S.A. 48. Several months later, on December 13, 2016, HOCALJ Uren approached Mr. Levinson to organize a time to discuss medical expert invoices. S.A. 48. Mr. Levin- son “became upset, was physically shaking, and red faced,” said that he “would not answer a single question that [HOCALJ Uren] ask[ed] of” him, and “shouted [that] . . . [HOCALJ Uren] was the worst.” S.A. 48–49. Another administrative law judge intervened to separate HOCALJ Uren and Mr. Levinson. S.A. 49. On January 9, 2017, HOCALJ Uren informed Mr. Lev- inson that he was subject to an administrative investiga- tion, and while she was speaking, Mr. Levinson “got up, stated he was not going to listen to anything [she] had to

2 Union employees are entitled “to have a union rep- resentative present at an investigatory meeting[, known as a Weingarten meeting,] if the employee believes that there might be disciplinary action.” Baker v. Dep’t of Interior, 243 F.3d 566 (Table), 2000 WL 1681219, at *3 n.4 (Fed. Cir. 2000) (non-precedential) (citing NLRB v. J. Weingarten, Inc., 420 U.S. 251, 262 (1975)). Case: 23-2277 Document: 40 Page: 6 Filed: 07/30/2024

say, and left the office.” S.A. 49. When HOCALJ Uren at- tempted to serve Mr. Levinson with a written directive on January 11, 2017, he went into a hearing room and refused to allow her to enter. S.A. 49. When HOCALJ Uren even- tually entered the hearing room, Mr. Levinson refused to take the written directive and stated he would “not . . . read it.” S.A. 49. When HOCALJ Uren gave Mr. Levinson the written directive, he tore it up and left the hearing room. S.A. 49. The MSPB determined that the SSA proved by prepon- derant evidence that Mr. Levinson engaged in conduct un- becoming of an administrative law judge on August 24, 2016; September 6, 2016; December 13, 2016; January 9, 2017; and January 11, 2017. S.A. 9–10; S.A. 59–64. The SSA requested that the MSPB (1) suspend Mr. Levinson from the date of the SSA’s complaint until the MSPB issued its final decision and (2) ultimately re- move Mr. Levinson from federal service. S.A. 17. After con- cluding that the SSA met its burden on each of its charges against Mr. Levinson, the administrative law judge, in the MSPB’s initial decision, determined that “there was good cause to suspend the respondent for 2 years and demote him.” S.A. 17. Mr. Levinson petitioned for review by the full MSPB of the administrative judge’s decision sustaining the charges. S.A. 4–5. The SSA petitioned for review by the full MSPB, arguing the administrative judge erred when it ap- proved a lesser penalty than removal. S.A. 4–5. In its final decision, the MSPB found good cause for the penalty of re- moval, considering the applicable Douglas 3 factors, and

3 The Douglas factors are used to determine the rea- sonableness of a penalty imposed on a federal employee. Torres v. Dep’t of Homeland Sec., 88 F.4th 1379, 1383 (Fed. Cir. 2023) (citing Douglas v. Veterans Admin., 5 M.S.P.B. 313, 331–33 (1981)). Case: 23-2277 Document: 40 Page: 7 Filed: 07/30/2024

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affirmed the administrative law judge’s initial decision as modified. S.A. 1, 17–24. Mr. Levinson timely appealed. We have jurisdiction to review the final decision of the MSPB under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). II We will set aside the MSPB’s decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Edenfield v. Dep’t of Veterans Affs., 54 F.4th 1357, 1359 (Fed. Cir. 2022). Further, “we are bound by the [administrative judge’s] factual determina- tions unless those findings are not supported by substan- tial evidence.” See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Torres v. Dep’t of Homeland Sec., 88 F.4th 1379, 1383 (Fed. Cir. 2023) (quot- ing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Under the substantial evidence standard of review, we do not reweigh evidence on appeal.” Jones v. Dep’t of Health & Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016) (cleaned up). III We begin by considering whether the MSPB erred in finding that Mr. Levinson neglected his duties, failed to fol- low three directives, and engaged in conduct unbecoming of an administrative law judge. Then, we turn briefly to the MSPB’s determination that good cause existed for Mr. Lev- inson’s removal. Case: 23-2277 Document: 40 Page: 8 Filed: 07/30/2024

A On appeal, Mr. Levinson focuses on the neglect-of-duty charge. See, e.g., Pet. Br. 3–6, 12–13. In particular, Mr. Levinson argues that the MSPB did not “cite or illus- trate . . . one legally insufficient decision” written by him. Pet. Br. 12–13; see also Pet. Reply Br. 3–4, 13. We disagree. First, the MSPB identified several inadequate decisions, is- sued by Mr. Levinson while he was an administrative law judge, in its initial decision, albeit in its discussion of his failure to follow directives. See S.A. 57–58. The MSPB’s fi- nal decision did not explicitly mention those identified de- cisions because Mr. Levinson did not dispute the neglect- of-duty charge or the related finding that “he failed to fol- low a directive when he continued to issue decisions that did not comply with the Macon HOCALJ’s June 28, 2016 directive to issue legally sufficient decisions.” S.A. 6; see also S.A. 5 & n.3. Further, the same conduct (issuing non- compliant decisions) was the basis for both his neglect-of- duty charge and his failure to follow directives charge. Compare S.A. 46–47 (discussing “Neglect of Duties” and making findings regarding “identified deficiencies in mul- tiple areas of [Mr. Levinson’s decisions]”), with S.A. 47 (dis- cussing “Failure to Follow Directives” and finding “[o]n June 28, 2016, HOCALJ Uren issued a second directive re- quiring [Mr. Levinson] to demonstrate significant improve- ment by issuing policy compliant decisions and correcting errors identified in the focus quality review”). Therefore, the MSPB did cite legally insufficient decisions in connec- tion with Mr. Levinson’s neglect-of-duty charge. To the ex- tent Mr. Levinson cites to contrary evidence in the record, we nonetheless are persuaded that substantial evidence supports the MSPB’s finding on the neglect-of-duty charge. Regarding the other charges, Mr. Levinson does not meaningfully dispute that he committed the acts he was charged with committing or even argue that no substantial evidence supports the MSPB’s findings on each charge. In- stead, his arguments on appeal are focused on the agency’s Case: 23-2277 Document: 40 Page: 9 Filed: 07/30/2024

LEVINSON v. SSA 9

alleged wrongdoing, its attempts to silence him, or other incidents that were not the basis for his removal based on the MSPB’s final decision. See Pet. Br. 6–12, 13–15; see also Pet. Br. 1–4, 13. But our review of the MSPB’s decisions is limited by statute, and after reviewing the entire record, we conclude that the MSPB’s findings that Mr. Levinson neglected his duties, failed to follow directives, and en- gaged in conduct unbecoming of an administrate law judge, are supported by substantial evidence. B Finally, we consider the MSPB’s determination that the SSA established good cause for Mr. Levinson’s removal. Under 5 U.S.C. § 7521(a), “action may be taken against an administrative law judge . . . by the agency in which the administrative law judge is employed only for good cause established and determined by the [MSPB] on the record after opportunity for hearing before the Board.” “We may overturn a penalty imposed by the [MSPB] for an [admin- istrative law judge’s] misconduct ‘[o]nly in the exceptional case in which the penalty exceeds that permitted by statute or regulation[] or is so harsh that it amounts to an abuse of discretion.’” Long v. Social Sec. Admin., 635 F.3d 526, 538 (Fed. Cir. 2011) (quoting Brennan v. Dep’t of Health & Hum. Servs., 787 F.2d 1559, 1563 (Fed. Cir. 1986)) (first, second, and fourth alterations added). In its final decision, the MSPB considered Mr. Levin- son’s largely successful work history with SSA and credited his feelings of mistreatment. See S.A. 22. Nonetheless, the MSPB concluded that “these factors do not outweigh those that support [Mr. Levinson’s] removal, particularly the na- ture of the offenses and their impact on the [SSA], as well as [Mr. Levinson’s] lack of rehabilitative potential.” S.A. 22. On appeal, Mr. Levinson does not challenge the MSPB’s penalty determination. Mr. Levinson does, Case: 23-2277 Document: 40 Page: 10 Filed: 07/30/2024

however, request reinstatement and compensation. Pet. Br. 14–15; Pet. Reply Br. 13. Considering the record, we conclude that the MSPB thoroughly analyzed the relevant Douglas factors in concluding there was good cause for Mr. Levinson’s removal and we affirm. IV To the extent Mr. Levinson has made additional argu- ments, we have considered them and find them unpersua- sive. The MSPB’s findings on each charge are supported by substantial evidence and its decision authorizing Mr. Lev- inson’s removal from his position as an administrative law judge is affirmed. AFFIRMED COSTS No costs.