Long v. Social Security Administration

635 F.3d 526, 2011 WL 915175
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 14, 2011
Docket2010-3108
StatusPublished
Cited by66 cases

This text of 635 F.3d 526 (Long v. Social Security Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Social Security Administration, 635 F.3d 526, 2011 WL 915175 (Fed. Cir. 2011).

Opinions

Opinion for the court filed by Circuit Judge PROST.

Concurring opinion filed by Circuit Judge DYK.

PROST, Circuit Judge.

Petitioner Danvers E. Long (“Long”) petitions for review of the final decision of the Merit Systems Protection Board (“Board”) finding good cause to remove Long from his position as an administrative law judge (“ALJ”) with the Social Security Administration (“Agency”) based on a charge of conduct unbecoming an ALJ. We affirm.

Background

The Agency employed Long as an ALJ in its Office of Disability Adjudication and Review in Fort Lauderdale, Florida beginning in 2001. At approximately 11:00 p.m. on January 27, 2008, Long was involved in a physical altercation (“January 27, 2008 Incident”) with his domestic partner, Lilia Vanessa Castro (“Castro”), who is the mother of his youngest child, Charlize Long Castro. The physical altercation began when Castro returned home, after leaving their child in Long’s care, to discover that Long was asleep in their bedroom and the child was not with him. Eventually, Castro fled the home on foot and continued to the home of Lisa and Donald Feeney (“the Feeneys”), who lived almost a mile away from Long and Castro. After Castro told the Feeneys that Long hit her and the child, Lisa Feeney called 911 on Castro’s behalf. Three police officers responded to the Feeneys’ home and questioned Castro; a Spanish-speaking officer took a tape-recorded statement from Castro. In these interviews and Castro’s statement, Castro explained that Long repeatedly struck and pushed her and that he accidentally struck their child. The police observed, and took digital photographs of, physical injuries on Castro’s face, forearm, and thigh as well as a red mark on the child’s face. Long was arrested and, on February 21, 2008, was charged with one count of domestic violence battery and one count of culpable negligence. The prosecutor later entered a nolle prosequi on the criminal charges against Long.

The Agency filed a Complaint, on June 30, 2008, and an Amended Complaint, on October 3, 2008, seeking Long’s removal from his position as an ALJ based on one charge of conduct unbecoming an ALJ arising out of the January 27, 2008 Inci[529]*529dent. The charge contained two specifications:

Specification 1: On or about January 27, 2008, [Long] repeatedly struck, grabbed, and pushed Lilia Vanessa Castro.
Specification 2: On or about January 27, 2008, [Long] struck Charlize Long Castro, while Lilia Vanessa Castro was holding her.

J.A. 72.

At a hearing before Administrative Law Judge Giannasi (“ALJ Giannasi”), sitting by designation, ALJ Giannasi heard testimony from, inter alia, Long, Castro, Lisa Feeney, Donald Feeney, and two of the three responding police officers. The parties jointly stipulated to the submission of the deposition testimony of Long’s teenage children who were home during the January 27, 2008 Incident, Ana Long and Danvers Long, Jr., in lieu of having the two testify at the hearing. Lisa Feeney, Donald Feeney, and the two police officers testified that Castro, who was noticeably shaken and had visible physical injuries, told them that Long was physically violent. Long, however, denied striking Castro and the child but admitted that, during the January 27, 2008 Incident, he grabbed Castro on several occasions and may have pushed her. Long claimed that his actions during the incident were taken in defense of himself and his child. Castro, who by the time of the hearing had reconciled with and was again living with Long, denied telling the Feeneys and the police that Long struck her and the child during the January 27, 2008 Incident. She testified that Long only grabbed her to protect himself and did not push or strike her. She further testified that she did not know if Long struck the child.

On June 2, 2009, ALJ Giannasi issued an initial decision sustaining the charge against Long. ALJ Giannasi found that, though the details of the January 27, 2008 Incident were not clear, the Agency established that Long used violence against Castro and thus proved by a preponderance of the evidence the “substance” of the first specification of the charge. Soc. Sec. Admin, v. Long, No. CB7521080019-I-1, slip op. at 21-22 (M.S.P.B. June 2, 2009) (“Initial Decision ”). ALJ Giannasi, however, found that the Agency failed to prove the second specification. Id. at 22-23. Based on his review of the Douglas factors, ALJ Giannasi found good cause for a forty-five day suspension, rather than the requested penalty of removal. Id. at 1, 31-32.

The Agency petitioned the Board for review of the initial decision. Soc. Sec. Admin, v. Long, 113 M.S.P.R. 190, 193-94 (2010) (“Final Decision”). The Board granted the Agency’s petition and issued a final decision on January 27, 2010. Id. It found that the Agency proved both specifications of the charge of conduct unbecoming an ALJ by a preponderance of the evidence. Id. at 193-94, 196-97, 207-08. In reaching this conclusion, the Board, in contrast to ALJ Giannasi, found that the hearing testimony of Long and Castro was not credible or reliable. Id. at 196-97, 205-08. The Board instead relied on the hearing testimony of the Feeneys and the police officers, the police reports, Castro’s sworn statement to police the night of the incident, and the statement and deposition testimony of Ana Long. Id. at 196-97, 198-99, 202-08. Further, the Board found good cause for disciplinary action against Long and determined that removal was the appropriate penalty. Id. at 202-13.

Long timely petitioned for review of the Board’s final decision in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

[530]*530Discussion

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

Long raises a number of issues on appeal. First, Long argues that the Board’s finding that the Agency proved both specifications of the charge of conduct unbecoming an ALJ is not supported by substantial evidence. Second, Long contests the Board’s finding of “good cause” for disciplinary action against him. Finally, Long objects to the imposed penalty of removal. We address each in turn.

I

A

Long argues that the Board’s decision to sustain the charge of conduct unbecoming an ALJ is not supported by substantial evidence because the Board improperly overturned ALJ Giannasi’s demeanor-based credibility determinations, including his determination that the testimony of several Agency witnesses was not fully credible or reliable as well as his concomitant finding that the Agency witnesses who spoke with Castro the night of the incident were unable to obtain a full understanding of the incident given Castro’s limited ability to speak English. Pet’r’s Br. 19, 22-41; Reply Br. 4-20.

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Bluebook (online)
635 F.3d 526, 2011 WL 915175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-social-security-administration-cafc-2011.